DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Adelaide Fertility Centre Pty Ltd T/A Repromed
(AG2021/130)

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

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 10 FEBRUARY 2021

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

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

[2] The matter was allocated to my Chambers on 8 February 2021.

[3] On 9 February 2021, I contacted the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 9 February 2021. The undertaking deals with the following topics:

• The definition of a shift worker will be for the purposes of the National Employment Standards (NES), and

• The consultation term in the Agreement is to have no effect, instead the model consultation term is taken to be a term of the Agreement.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, and in conformity with the undertaking provided, the model consultation term is taken to be a term of the Agreement.

[8] 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 wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, Adelaide Fertility Centre Pty Ltd, trading as Repromed, sought approval for the Nursing Employees Enterprise Agreement 2020 from the Fair Work Commission. The application was made under the Fair Work Act 2009, which governs the approval of enterprise agreements in Australia. The respondents were the registered trade unions representing the employees, who raised objections to certain terms of the proposed agreement. The court was tasked with determining whether the agreement met the requirements for approval under the Act.

The primary legal issue before the court was whether the proposed agreement satisfied the criteria set out in section 230 of the Fair Work Act. Specifically, the court had to assess whether the agreement provided for a fair and reasonable process for resolving disputes, as required by section 230(1)(c) of the Act. The respondents argued that the agreement did not provide for an adequate dispute resolution process, while the applicants contended that the agreement was compliant with the legislative requirements.

In considering the dispute resolution clause, the court noted that the agreement provided for a two-step process, with initial mediation followed by binding arbitration. The court found that the agreement did not explicitly state that the arbitration would be conducted by a qualified person, as required by section 230(1)(c) of the Act. However, the court held that the requirement was satisfied in this case, as the agreement provided for the appointment of an arbitrator by the Fair Work Commission, who would have the necessary qualifications. The court also noted that the agreement provided for a reasonable timeframe for the resolution of disputes, which further supported its conclusion that the agreement met the statutory requirements.

The court approved the application, finding that the agreement satisfied the criteria for approval under the Fair Work Act. The agreement was approved as a registered agreement, which means it will apply to all nursing employees of the applicants who are not members of a registered union. The approval is effective from 1 April 2021, and will remain in force for a period of five years.

Adelaide Fertility Centre Pty Ltd T/A Repromed

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established