Monday, November 23, 2009

Carenne Support fails its constitutional argument before the IRC

Posted October 20th, 2009 by jules85 on Sydney Indymedia
The attempt to deny whistle blower Brian Carter relief from unfair dismissal from his employment at Carenne Special School's attached charity - Carenne Support has been rejected in a judgement handed down by Justice Haylen in the Industrial Relations Commission today. The application, filed by Carenne Support attempted to prove that it was a "trading corporation" as defined by the constitution and was therefore covered by Workchoices and the federal industrial relations regime.

If the application was accepted, Mr Carter would have had no recourse for his unfair dismissal. This tactic has however delayed Mr Carter's proceedings for unfair dismissal by some seven months, most likely at substantial expense to both parties.

In his judgement, Justice Haylen made mention of the NSW Department of Education and Training's Legal Services Unit representing Carenne Support, supplying further evidence that Verity Firth, Minister for Education and Training misled parliament when asked if they were representing a departmental contractor. The judgement also identifies Mr Stan Benson, the NSW DET's preferred barrister as counsel for Carenne Support. The minister should now explain whether or not the services of Mr Benson were paid for at government expense.

His honour also mentioned that the bulk of Carenne Support's funding came from its contract with the Department of Education and Training, with funding from the Department of Ageing, Disability and Home Care for its therapy services. In his judement, Justice Haylen said that Carenne Support had a contract to provide services to DADHC to people in the Bathurst community, despite providing all services except for one client to Carenne School.

A parent of a student at Carenne Special School has told me that she was told that therapy services were provided entirely at Carenne Support's expense. This comment makes this sound incorrect.

Note was also made of how financial statements prior to this matter referred to this income as "fundraising".

His honour also noted submissions by Mr Carter that the Australian Business Register entry in Geoffery Salmon's affidavit failed to demonstrate Carenne Support's favourable taxation status due to being a non-profit entity.

Despite initial attempts by Carenne Support to have mention of how its buses were obtained dismissed as trouble-making, Justice Haylen made mention of them in his judgement. Justice Haylen mentioned:

The two Ford transit minibuses were purchased following an appeal in 2004/2005 by the Carenne Public School, an appeal for buses to assist with transporting students to and from school-related activities. Mr Carter referred to press coverage of these fundraising events. In 2005 the Lions Club of Bathurst had donated more than $30,000 to the Carenne School bus appeal. One article carried a statement from Mr Terence Mahoney a director of Carenne and the Principal of Carenne Public School that the school would now be able to order a bus with wheelchair access. Mr Mahoney had said that the school really needed its own bus to guarantee viability of programmes for the students. Mr Mahoney had mentioned in one of the articles that the well-known charity, Variety, had come to their aid and had donated the remaining funds allowing the purchase of two buses for the school. Those statements made it clear that the purchase of the buses was for the purposes of the operation of the Carenne Public School and its students. Mr Carter asserted that there was no intention to use the vehicles for trade and that would be unusual considering that the funding for the purchase of the vehicles was supplied by donations and other charities such as Variety.

The judge found that: the similarities between the operations of Carenne and the operations considered in Hillman, The Red Cross and the Etheridge Council cases leads to the conclusion that Carenne is not a trading corporation and that finding, in turn, results in the Commission having jurisdiction to hear Mr Carter's application for unfair dismissal.

The unfair dismissal hearing will take place on a date to be fixed.

Read the complete judgement

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