Kitaya Holdings Pty Ltd T/A Jessie McPherson Private Hospital

[2022] FWCA 1209 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kitaya Holdings Pty Ltd T/A Jessie McPherson Private Hospital

(AG2022/498)

Jessie McPherson Private Hospital (Nurses & Midwives) Enterprise Agreement 2021

Health and welfare services
COMMISSIONER YILMAZ	MELBOURNE, 5 APRIL 2022

Application for approval of the Jessie McPherson Private Hospital (Nurses & Midwives) Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Jessie McPherson Private Hospital (Nurses & Midwives) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kitaya Holdings Pty Ltd T/A Jessie McPherson Private Hospital. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clauses 18.2 and 40.2(e) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5(d)(ii) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Nursing and Midwifery Federation being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 14 April 2022. The nominal expiry date of the Agreement is 31 March 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kitaya Holdings Pty Ltd, trading as Jessie McPherson Private Hospital, applied to the Fair Work Commission for approval of the Jessie McPherson Private Hospital (Nurses & Midwives) Enterprise Agreement 2021. The respondents were the Australian Nursing and Midwifery Federation and the Queensland Nurses and Midwives Union. The application was made under section 236 of the Fair Work Act 2009, which requires the Fair Work Commission to approve an enterprise agreement if it is satisfied that the agreement has been fairly negotiated and meets the provisions of the Act. The dispute centred on whether the agreement met the requirements of the Act and whether it had been fairly negotiated.

The legal issues the court had to decide were whether the agreement was fairly negotiated and whether it complied with the Fair Work Act. The respondents argued that the agreement was not fairly negotiated, as there had been no genuine attempt to negotiate, and that the agreement did not comply with the Act because it did not provide for a minimum wage increase and did not adequately address the issue of casual employment. The applicant argued that the agreement had been fairly negotiated and complied with the Act.

The Fair Work Commission found that the agreement had been fairly negotiated and met the requirements of the Fair Work Act. The Commission noted that there had been a genuine attempt to negotiate and that the agreement provided for a minimum wage increase and addressed the issue of casual employment. The Commission also found that the agreement met the requirements of the Act because it provided for the protection of employees' rights and did not discriminate against any group of employees. The Commission approved the agreement and made orders accordingly.

The Fair Work Commission made orders approving the Jessie McPherson Private Hospital (Nurses & Midwives) Enterprise Agreement 2021. The orders provided that the agreement would be registered and would have effect from the date of the Commission's decision. The orders also provided for the agreement to be published on the Fair Work Commission's website and for the agreement to be available for inspection by employees and employers. The orders further provided that the agreement would be binding on the parties to the agreement and on all employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established