Health Alert (Australia) - 2 December 2013

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In This Issue:

Judgments; Legislation; and Reports.

Excerpt from Judgments:

Commonwealth -

22 November 2013 - Australian Nursing and Midwifery Federation v Eastern Health [2013] FCAFC 137 -

The Australian Nursing and Midwifery Federation (Union) appealed the decision of a primary Federal Court judge that the terms of the relevant enterprise agreement (Agreement) did not require Eastern Health to pay a uniform allowance to employees subject to that Agreement.

Eastern Health does not provide a uniform to most of those employees but they are required to comply with a dress code. Historically, it paid its employees a uniform allowance regardless of whether they were required to wear a uniform.

The Union argued that the plain words of the Agreement required a uniform allowance where one was not provided by Eastern Health and that this construction of the Agreement was supported by a common understanding between the parties. It further submitted that Eastern Health's dress code fell within the definition of a 'uniform' in the Agreement.

Eastern Health submitted that “absent the requirement to wear a uniform, any basis for the payment of a uniform allowance does not exist." It also argued that the Union's construction ignored the common understanding of an "allowance", which Eastern Health contended was an additional payment based on a requirement connected with the employees' service.

The Court of Appeal concluded that the ordinary meaning of the terms of the Agreement supported the construction favoured by the primary judge. It held that the purpose of a uniform allowance was to "compensate employees for having to provide their own uniforms" and Eastern Health's dress code did not amount to a 'uniform' as defined in the Agreement.

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