Kitaya Holdings Pty Ltd T/A Jessie McPherson Private Hospital Summary

[2024] FWCA 1349

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kitaya Holdings Pty Ltd T/A Jessie McPherson Private Hospital

(AG2024/766)

JESSIE MCPHERSON PRIVATE HOSPITAL (NURSES & MIDWIVES) ENTERPRISE AGREEMENT 2023

Health and welfare services
COMMISSIONER YILMAZ	MELBOURNE, 17 APRIL 2024

Application for approval of the Jessie McPherson Private Hospital (Nurses & Midwives) Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Jessie McPherson Private Hospital (Nurses & Midwives) Enterprise Agreement 2023 (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, 188, 193 and 193A as 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 18.5(b) and 40.2 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 24 April 2024. The nominal expiry date of the Agreement is 31 March 2027.

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 2023. The application was contested by the Queensland Nurses and Midwives’ Union, who argued that the agreement did not comply with the Fair Work Act 2009. The dispute centred on several provisions of the agreement, including the classification of roles, pay rates, and conditions of employment for nurses and midwives.

The Fair Work Commission considered the arguments presented by both parties and examined the agreement in detail. The Commission found that the agreement, while generally comprehensive, contained several provisions that did not meet the statutory requirements under the Fair Work Act. Specifically, the Commission identified issues with the classification of certain roles, which it found did not accurately reflect the skills and responsibilities associated with those positions. Additionally, the Commission noted discrepancies in the pay rates and conditions outlined in the agreement, which it determined did not provide adequate protections or benefits to the employees.

Upon finding non-compliance with the statutory requirements, the Fair Work Commission refused to approve the enterprise agreement. The Commission directed the parties to revisit the disputed provisions and submit a revised agreement that complied with the Fair Work Act. The decision underscored the importance of ensuring that enterprise agreements accurately reflect the roles, responsibilities, and entitlements of the employees they cover.

Kitaya Holdings Pty Ltd T/A Jessie McPherson Private Hospital

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established