Mackay v Minister for Health [2006] FCA 132 (22 February 2006)

Last Updated: 24 February 2006

FEDERAL COURT OF AUSTRALIA

Mackay v Minister for Health [2006] FCA 132

INDUSTRIAL LAW – application under s 178 of the Workplace Relations Act 1996 (Cth) for imposition of penalty for award breaches – award interpretation – whether award rostering requirements applicable – no question of principle







Workplace Relations Act 1996 (Cth) s 178
Health and Disability Services – Support Workers Western Australian Government Award 2001 cl 26













CAROL ANN MACKAY v MINISTER FOR HEALTH
WAD 164 OF 2004









MARSHALL J
22 FEBRUARY 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 164 OF 2004

BETWEEN:	CAROL ANN MACKAY APPLICANT
AND:	MINISTER FOR HEALTH RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	22 FEBRUARY 2006
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

The application is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 164 OF 2004

BETWEEN:	CAROL ANN MACKAY APPLICANT
AND:	MINISTER FOR HEALTH RESPONDENT

JUDGE:	MARSHALL J
DATE:	22 FEBRUARY 2006
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The Court heard Ms Mackay’s application under s 178 of the Workplace Relations Act 1996 (Cth) at the same time as the application in Bell v Minister for Health [2006] FCA 134. These reasons for judgment are to be read together with the reasons for judgment in Bell, delivered this day.

2 Ms Mackay also claimed that her employer breached cl 26 of the Health and Disability Services – Support Workers - Western Australian Government - Award 2001 in respect of her.

3 Ms Mackay’s case differs from that of Ms Bell in the following respects:

• she became a full time employee under the Award on 5 November 2001 in a non-relieving position;
• from 5 November 2001 until the date of the filing of the application she worked regular fixed hours, in circumstances where she was fully aware of the days on which she was rostered off work in any given week. Those days only changed when management altered her work location in mid 2002 and again in May 2004. At each location the hours and days worked by her were fixed; and
• her work was not subject to a formal written roster because there was no need for such a roster. All employees in those locations who were not relieving knew when they were to work.

4 Clause 26.7 of the award must be read sensibly. It requires the display of a roster for full time employees which sets out their start and finishing times and their rostered days off. If a person is told, whilst employed at a particular location that her or his start and finishing times and rostered days off are fixed there is no need for a formal written roster. The requirement to display rosters which contain the abvovementioned information is only operative when employees work in accordance with a roster which does not contain fixed working hours. Any other construction of cl 26.7 of the award would be unworkable impose an unnecessary administrative burden on an employer.

5 For the above reasons and the reasons set out in Bell as to the proper construction of cl 26 of the award, the application is dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 22 February 2006

Counsel for the Applicant:	Mr A Gill
Solicitor for the Applicant:	Chapmans
Counsel for the Respondent:	Mr R Andretich
Solicitor for the Respondent:	State Solicitor for Western Australia
Dates of Hearing:	20, 21 and 22 February 2006
Date of Judgment:	22 February 2006