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

Annexure A

1 [2019] FWCFB 318

In the Fair Work Commission, the applicant, Adelaide Fertility Centre Pty Ltd, trading as Repromed, sought approval for a Darwin Employees Enterprise Agreement 2020. The respondent, the Australian Health Services Union, opposed the application, arguing the agreement did not meet the requirements of the Fair Work Act 2009. The case centred on whether the agreement complied with the relevant legislative provisions and protected the rights of employees as mandated by the Act.

The central legal issues revolved around the compliance of the enterprise agreement with the Fair Work Act. Key points of contention included whether the agreement appropriately covered all employees, provided minimum entitlements, and contained the necessary good faith provisions. The Commission had to determine if the agreement adequately met the legislative standards and if it could be approved without amendments.

In its decision, the Commission evaluated the agreement against the statutory requirements. It found that while the agreement generally met the legislative standards, there were deficiencies in relation to the good faith provisions. The Commission considered that the agreement needed to be amended to ensure it contained the necessary minimum good faith provisions. After considering submissions from both parties, the Commission decided that the agreement could be approved with modifications to the good faith provisions to ensure compliance with the Act.

The Fair Work Commission approved the Darwin Employees Enterprise Agreement 2020, subject to the inclusion of specific minimum good faith provisions. The Commission required the applicant to amend the agreement to meet these provisions within a specified timeframe. The decision ensured that the enterprise agreement would comply with the Fair Work Act, protecting the rights of employees and maintaining industrial fairness.

Adelaide Fertility Centre Pty Ltd T/A Repromed

DECISION

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