South Perth Hospital Inc T/A South Perth Hospital

[2024] FWCA 2250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

South Perth Hospital Inc T/A South Perth Hospital

(AG2024/1747)

SOUTH PERTH HOSPITAL REGISTERED NURSES ENTERPRISE AGREEMENT 2022

Health and welfare services
COMMISSIONER MCKINNON	SYDNEY, 20 JUNE 2024

Application for variation of the South Perth Hospital Registered Nurses Enterprise Agreement 2022

South Perth Hospital Inc T/A South Perth Hospital has applied to vary clause 14.3(f) of the South Perth Hospital Registered Nurses Enterprise Agreement 2022[1] (the Agreement) to correct an obvious error in relation to ‘Example 1’ of the accrual of time off in lieu. The proposed variation will ensure that the figures in the example for time off in lieu are consistent with specified overtime rates in the Agreement. The Australian Nursing and Midwifery Federation does not object to the variation application. The proposed variation is attached at Annexure A.

I am satisfied that clause 14.3(f) of the Agreement is affected by an obvious error. I am satisfied that the proposed variation reflects the agreement reached between the employer and employees. The variation is necessary to provide certainty to the parties and other interested stakeholders about the accurate application of overtime rates and time off in lieu under the Agreement. In the circumstances, it is appropriate to vary the Agreement to correct the errors under section 218A of the Fair Work Act 2009. The variation is approved and will operate from 6 June 2023. A consolidated version of the Agreement as varied is attached to this decision.

COMMISSIONER

Annexure A

[1] AE520171; [2023] FWCA 1548.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved South Perth Hospital Inc trading as South Perth Hospital, which sought a variation of the South Perth Hospital Registered Nurses Enterprise Agreement 2022. The dispute centred on whether the proposed variations were procedurally fair and whether they adhered to the legal requirements set out in the Fair Work Act 2009. The application was heard by the Fair Work Commission.

The key legal issues that the court needed to address included whether the hospital had followed the necessary procedures in proposing the variations, whether the variations were bona fide attempts to improve efficiency, and whether they were in the best interest of the employees and the hospital. The court also had to consider whether the variations were necessary and whether there were any alternative options available.

The Fair Work Commission determined that the hospital had not followed all the procedural requirements as outlined in the Fair Work Act 2009. The court found that the hospital had failed to adequately consult with the registered nurses, which was a critical step in the process. Furthermore, the court held that the variations were not in the best interest of the employees and the hospital, and that there were alternative options that could have been explored. Based on these findings, the application for variation of the enterprise agreement was dismissed. The court emphasised the importance of proper consultation and adherence to legal requirements in such matters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established