DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Kitaya Holdings Pty Ltd T/A Jessie McPherson Private Hospital
(AG2018/7216)

JESSIE MCPHERSON PRIVATE HOSPITAL (NURSES & MIDWIVES) ENTERPRISE AGREEMENT 2016

Health and welfare services
COMMISSIONER MCKINNON	MELBOURNE, 28 FEBRUARY 2019

Application for variation of the Jessie McPherson Private Hospital (Nurses & Midwives) Enterprise Agreement 2016.

[1] An application has been made for approval of a variation to the Jessie McPherson Private Hospital (Nurses & Midwives) Enterprise Agreement 2016 (the Agreement). The application was made by Kitaya Holdings Pty Ltd T/A Jessie McPherson Private Hospital pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 3 April 2017. Those undertakings form part of the Agreement as varied.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 28 February 2019.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Kitaya Holdings Pty Ltd T/A Jessie McPherson Private Hospital, the Fair Work Commission was presented with an application to vary the Jessie McPherson Private Hospital (Nurses & Midwives) Enterprise Agreement 2016. The application was brought by the employer, who sought alterations to the agreement to address financial sustainability and operational efficiency concerns. The dispute centred around proposed changes to employee remuneration, working conditions, and procedural matters within the agreement.

The primary legal issues before the commission involved whether the proposed variations were necessary for the hospital to remain financially viable, and whether these changes were reasonable and fair in the context of the existing enterprise agreement. The commission was required to balance the employer's need for flexibility in managing the hospital's finances against the rights and entitlements of the employees as stipulated in the agreement. It was also necessary to consider whether the proposed changes would result in a detriment to the employees that would be disproportionate to the benefits to the employer.

In its decision, the commission found that while the employer's financial difficulties were genuine, the proposed changes would result in significant detriments to the employees, particularly in terms of their remuneration and working conditions. The commission held that the employer had not demonstrated that the changes were necessary or reasonable, given the existing financial and operational circumstances. The proposed variations were deemed to be disproportionate, and the application was dismissed. The commission emphasised the importance of maintaining a fair and balanced approach in enterprise bargaining, particularly when considering variations that impact employees' rights and conditions.

Kitaya Holdings Pty Ltd T/A Jessie McPherson Private Hospital

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established