FEDERAL COURT OF AUSTRALIA Ballarat Health Services v Health Services Union [2012] FCAFC 79 Citation: Ballarat Health Services v Health Services Union [2012] FCAFC 79 Appeal from: Health Services Union v Ballarat Health Services [2011] FCA 1256 Parties: BALLARAT HEALTH SERVICES v HEALTH SERVICES UNION File number: VID 1311 of 2011 Judges: NORTH, MCKERRACHER AND REEVES JJ Date of judgment: 7 May 2012 Date of hearing: 7 May 2012 Place: Melbourne Division: FAIR WORK DIVISION Category: No Catchwords Number of paragraphs: 7 Counsel for the Appellant: Mr M McDonald with Mr G McKeown Solicitor for the Appellant: Workplace Legal Counsel for the Respondent: Mr H Borenstein SC with Mr C Dowling Solicitor for the Respondent: Slater & Gordon IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 1311 of 2011 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: BALLARAT HEALTH SERVICES Appellant AND: HEALTH SERVICES UNION Respondent JUDGES: NORTH, MCKERRACHER AND REEVES JJ DATE OF ORDER: 7 MAY 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 1311 of 2011 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: BALLARAT HEALTH SERVICES Appellant AND: HEALTH SERVICES UNION Respondent JUDGES: NORTH, MCKERRACHER AND REEVES JJ DATE: 7 MAY 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT NORTH J: 1 On 4 November 2011, Gray J determined that employees of the respondent engaged in mental health nursing in receipt of a commuted allowance who worked afternoon and night shifts on Saturday, Sunday and public holidays are entitled to shift allowances in respect of those shifts (Health Services Union v Ballarat Health Services [2011] FCA 1256). This conclusion involved the construction of the Ballarat Health Services Psychiatric Services Certified Agreement 1997 (the 1998 Agreement), which construction was accepted by the parties as applicable to the Victorian Psychiatric Services Certified Agreement 2000-2004 and the Victorian Psychiatric Services Certified Agreement 2004-2007. 2 Save for one argument, the arguments on appeal mirrored the arguments put to his Honour. 3 The appellant submitted that his Honour did not deal directly with an argument that, if cl 34.6.1 of the 1998 Agreement was read literally, it would involve an anomaly in that employees covered by cl 23.2.1 would receive shift allowances under the 1998 Agreement as well as continuing to receive shift allowances under the Victorian Health and Community Services (Psychiatric, Disability and Alcohol & Drug Services) Award 1995. 4 The respondent argued that cl 23.2.1 sets a minimum income maintenance for employees who transferred employment but did not receive the commuted allowance. So read, there is no anomaly. This argument should be accepted. 5 Otherwise, I agree with the conclusions of his Honour and with the substance of the reasoning which he applied to reach those conclusions. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 28 May 2012 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1311 of 2011 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: BALLARAT HEALTH SERVICES Appellant AND: HEALTH SERVICES UNION Respondent JUDGE: NORTH, MCKERRACHER AND REEVES JJ DATE: 7 MAY 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT MCKERRACHER J: 6 I agree with the reasons and conclusions of the presiding judge. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 28 May 2012 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1311 of 2011 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: BALLARAT HEALTH SERVICES Appellant AND: HEALTH SERVICES UNION Respondent JUDGE: NORTH, MCKERRACHER AND REEVES JJ DATE: 7 MAY 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT REEVES J: 7 I agree. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate: Dated: 28 May 2012