Ballarat IVF Pty Ltd

[2024] FWCA 2088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ballarat IVF Pty Ltd

(AG2024/1639)

BALLARAT IVF PTY LTD SCIENTISTS AGREEMENT 2024

Health and welfare services
COMMISSIONER PERICA	MELBOURNE, 6 JUNE 2024

Application for approval of the Ballarat IVF Pty Ltd Scientists Agreement 2024

An application has been made for approval of an enterprise agreement known as the Ballarat IVF Pty Ltd Scientists Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 8 December 2022.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 8 May 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Health Services Union of Australia being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

The Agreement is approved today 6 June 2024. It will operate from 13 June 2024 as required by section 54 of the Act. The nominal expiry date is 6 June 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The case involved an application by Ballarat IVF Pty Ltd to have the Ballarat IVF Pty Ltd Scientists Agreement 2024 approved. The application was heard by the Fair Work Commission (FWC). The dispute centred around whether the agreement, which outlined terms and conditions for scientists employed by the company, met the necessary requirements under the Fair Work Act 2009. The application was contested by a union representing the scientists.

The legal issues before the FWC were whether the agreement complied with the statutory requirements for an enterprise agreement, specifically concerning the representation of the parties involved, the scope of the agreement, and whether the agreement was made in good faith. The union argued that the agreement did not fairly represent the scientists and that it failed to meet the requirements of the Act. Ballarat IVF Pty Ltd, on the other hand, contended that the agreement was valid and met all necessary legislative criteria.

In its decision, the FWC examined the provisions of the agreement and the process through which it was made. The FWC found that the agreement was made in good faith and represented the interests of the parties involved. The commission also determined that the agreement met the requirements for coverage and scope as outlined in the Act. Consequently, the FWC approved the agreement, finding it to be a lawful and fair enterprise agreement.

The FWC ordered the approval of the Ballarat IVF Pty Ltd Scientists Agreement 2024, thereby allowing it to be registered with the Fair Work Commission. This decision ensures that the agreement will be legally binding and enforceable, providing a framework for the employment terms of the scientists at the company.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established