Adelaide Fertility Centre Pty Ltd T/A Repromed

[2021] FWCA 3000

[2021] FWCA 3000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adelaide Fertility Centre Pty Ltd T/A Repromed
(AG2021/4944)

ADELAIDE FERTILITY CENTRE PTY LTD (TRADING AS REPROMED) DARWIN EMPLOYEES ENTERPRISE AGREEMENT 2020

Health and welfare services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 25 MAY 2021

Application for approval of the Adelaide Fertility Centre Pty Ltd (Trading as Repromed) Darwin Employees Enterprise Agreement 2020.

[1] Adelaide Fertility Centre Pty Ltd T/A Repromed (the Employer) has made an application for approval of an enterprise agreement known as the Adelaide Fertility Centre Pty Ltd (Trading as Repromed) Darwin Employees Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The copy of the NERR provided to employees refers to the Agreement as the Adelaide Fertility Centre Pty Ltd (Trading as Repromed) Darwin Employees Enterprise Agreement 2017, however, the title of the Agreement is the Adelaide Fertility Centre Pty Ltd (Trading as Repromed) Darwin Employees Enterprise Agreement 2020. The Employer provided submissions as to this error on 14 May 2021. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] Accordingly, notwithstanding the matters identified in paragraph 2 above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] I observe that clauses 32(a) and (b) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3(a) 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.

[7] The Australian Nursing and Midwifery Federation (ANMF) being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[8] The Agreement was approved on 25 May 2021 and, in accordance with s 54, will operate from 1 June 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE511602 PR730154>

Annexure A

 1   [2019] FWCFB 318