Health Services Union (on behalf of Louise Hennessy) v The Director-General, NSW Department of Health in respect of NSW Health Service [2010] NSWIRComm 143

Industrial Court of New South Wales

CITATION: Health Services Union (on behalf of Louise Hennessy) v The Director-General, NSW Department of Health in respect of NSW Health Service [2010] NSWIRComm 143

PARTIES: Health Services Union (Applicant) Director-General, NSW Department of Health (Respondent)

FILE NUMBER(S): IRC366 of 2009

CORAM: Kavanagh J

UNFAIR CONTRACT - s 106 of the Industrial Relations Act 1996 - allegations of unfair conduct in a contract of employment held by an award employee

CATCHWORDS: JURISDICTION - Challenge to jurisdiction to hear claims - claim not statute barred under definition section of s 105 of the Act nor under Health Services Act - Award, by agreement, not incorporated nor inferred into contract of employment; relevant clause of award related to accommodation not inserted into contract of employment by agreement or by inference - Claim re failure to appeal GREAT decision to Supreme Court does not make claim statute barred

FINDINGS - Finding on facts that conduct by the respondent led to loss of applicant's accommodation rent free - conduct made contract of employment unfair - unfair conduct which led to baseless findings of misconduct and poor performance impeded career progress - unfairness established - contract became unfair - employment contract varied - orders of compensation just in the circumstance

LEGISLATION CITED: Health Services Act 1997 Industrial Relations Act 1996

Angelopoulos v Sabatino (1995) 65 SASR 1 Banker v National Distribution Services Ltd (1993) 50 IR 254, (1994) 53 IR 157 Barry v Incitec (1992) 45 IR 143 Burgess v Mount Thorley Operations Pty Ltd (2004) 132 IR 400, [2003] NSWIRComm 432 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 CASES CITED: Casey v Wentworthville Memorial RSL Club (1986) 16 IR 337 H&REA of New South Wales v The State of New South Wales (unreported decision of the Full Court of the Industrial Court of NSW Nos 510, 529 and 1991, 31 March 1993) Newton v Goodman Fielder Mills Ltd (1997) 81 IR 227 Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221 Stonham v The Speaker of the Legislative Assembly of New South Wales (2009) 97 IR 325; [2000] NSWIRComm 69 Walker v Hussmann Australia Pty Ltd (1991) 38 IR 189 Walker v Industrial Court of NSW (1994) 53 IR 121