IVF Australia Pty Limited T/A IVF Australia

[2019] FWCA 2008

[2019] FWCA 2008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

IVF Australia Pty Limited T/A IVF Australia
(AG2018/6715)

IVF AUSTRALIA PTY LTD SCIENTISTS ENTERPRISE AGREEMENT 2018

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 2 APRIL 2019

Application for approval of the IVF Australia Pty Ltd Scientists Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the IVF Australia Pty Ltd Scientists Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by IVF Australia Pty Limited T/A IVF Australia. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 13 February 2019.

[3] On 21 February 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 27 March 2019. The undertaking deals with the following topics:

•  Clause 3 of the Agreement shall be amended as follows:

“This Agreement shall cover:

(i) IVF Australia Pty Ltd (‘the Employer’); and

(ii) Scientists as classified in Schedule 1 of this Agreement employed by the Employer in the State of New South Wales.

(iii) Scope of the Agreement

This Agreement contains all the terms and conditions of employment for employees covered by the agreement and shall apply to all employees employed pursuant to the classifications listed in Schedule 1 employed by the Employer in the State of New South Wales.”

•  Clause 22(iii) and (v) of the Agreement is replaced with the following:

“(iii) Before commencing employment, the Employer and employee will agree in writing on a regular pattern of work including the number of hours to be worked each week, the days of the week the employee will work and the start and finish times each day.

(iv) The terms of the agreement may be varied by agreement and recorded in writing.

(v) An employee who works outside their ordinary hours on any day will be paid at the rate of:

(a) time and a half for the first two hours and double time thereafter, provided that hours in excess of 8 on a Saturday will be paid at double time.

(b) all overtime worked on a Sunday will be paid at the rate of double time.

These extra rates will be in substitution for and not cumulative upon applicable shift loadings.

Where agreement has been reached in accordance with clauses 22(iii) or (iv), a part-time employee who is required by the Employer to work in excess of those agreed hours must be paid overtime in accordance with this clause.”

•  Clause 23(iii) shall be amended as follows:

“(iii) A casual employee will be paid overtime, at the applicable overtime penalty rates as set out in Clause 16 of the Agreement, with the casual loading set out at clause 23(i) to be paid in addition to such penalty rate, for all hours worked in excess of 10 hours in a day or 152 hours in a four week period.”

•  Clause 16(iv) of the Agreement will be amended as follows:

“(iv) Where an employee works either a Saturday or Sunday as part of their ordinary hours of employment, they will be paid time and one half, save that a casual Employee who works on a Saturday or Sunday will be paid at the rate of time and three quarters for all time worked in lieu of the casual loading.”

[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] The “Health Services Union of Australia (HSU)”, 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.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 1 November 2021.

COMMISSIONER

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