|Appeal by Southern Health Against Determination of Commissioner Cribb|
Payment to Part-timers for Public Holidays
Members may recall that we have been in dispute with Southern Health over the payment to part-time staff for public holidays which fall on days on which the member does not work.
Southern Health was applying a pro-rata payment to an employee’s rostered daily hours – which we say was a misapplication of the provision in the collective Agreement. For example a member who was working 4 hours over 5 days per week (20 hours) was being paid 2.1 hours (20/38 x 4 hours) for the public holiday, instead of 4.2 hours (20/38 x 8 hours).
We took the matter to FWA in 2009 and 2010. Southern Health would not agree to change the way it was calculating payments to part-time members so the matter was referred to arbitration.
Commissioner Cribb issued a decision on 4 November 2010 in which she decided that the payment should be equal to the average hours per day that a part-timer worked. For example if a member works 20 hours a week over 5 days then the payment for a holiday which falls on a day when they never work would be 4 hours.
Southern Health did not lodge an appeal, but decided to completely ignore the decision of Commissioner Cribb and advised the Union that it intended to continue to apply a pro-rata formula – i.e. 20/38 of 4 hours in the above example – as if the decision had not been issued.
In this they were supported by the VHIA.
We regard this behaviour as unconscionable, particularly given that our EBA states that the determination of a dispute in relation to matters under the EBA is binding upon persons bound by the agreement, subject only to the right to lodge an appeal.
It was only after the Union threatened to take Southern Health to the Federal Court to enforce the determination of Commissioner Cribb that an appeal was lodged by Southern Health – 6 months after the decision was made.
Normally appeals are to be lodged within 21 days of a decision being made. Southern Health applied to have the period extended.
It was that application for an extension of time that was rejected by Fair Work Australia yesterday.
Notwithstanding that provision in the EBA that the determination of a dispute is binding on the parties, Southern Health is still not prepared to give the Union a commitment to abide by the determination of Commissioner Cribb. Southern Health is now saying that it will advise us by Friday next week regarding its position.
Will Southern Health continue to spend money on lawyers, trying to argue that they are free to ignore a decision which under the EBA is binding on them?
We will be pursuing Southern Health for back payment re underpayments of part-time members of the Union for public holidays going back 6 years.