DECISION

Fair Work Act 2009
s.185—Enterprise agreement

IVF Australia Pty Limited T/A IVF Australia
(AG2018/5523)

IVF AUSTRALIA PTY LTD NURSING ENTERPRISE AGREEMENT 2018

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 1 APRIL 2019

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

[1] An application has been made for approval of an enterprise agreement known as the IVF Australia Pty Ltd Nursing 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 21 February 2019.

[3] On 1 March 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 22(i)(a) of the Agreement shall be replaced with:

“4 weeks for all full-time and part-time employees”.

• For the purposes of clause 15(vi), the Applicant undertakes to pay part-time employees for the hours rostered or the average hours worked over the prior 12 months, whichever is greater.

• Clause 15(i) of the Agreement shall be replaced with:

“A permanent part-time employee is one who is permanently appointed by an employer to work a specified number of hours which are less than those prescribed for a full-time employee. Before commencing part-time employment, the employer and employee will agree in writing the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours.”

• The Applicant undertakes that the minimum engagement for part-time employees will be three hours.

[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 “Australian Nursing and Midwifery Federation”, 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 July 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicants, IVF Australia Pty Limited trading as IVF Australia, sought approval of their Nursing Enterprise Agreement 2018. This agreement was contested by the Health Services Union of Australia (HSUA), the Registered Nurses' Union of Australia, and the Registered Midwives' Union of Australia. The dispute was heard by the Fair Work Commission (FWC), specifically Commissioner C. A. Forrest, who was required to determine whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issues before the court involved assessing whether the agreement complied with the procedural and substantive requirements set forth in the Fair Work Act. This included determining whether the agreement was made in good faith, whether it was appropriately certified by an independent certifier, and if it met the ‘better off overall test’. The FWC had to consider whether the agreement provided employees with a minimum safety net of entitlements and whether it was likely to achieve improved productivity and efficiency in the workplace.

Commissioner Forrest found that the agreement was made in good faith and was appropriately certified. The FWC was satisfied that the agreement provided employees with a safety net of entitlements that met or exceeded the relevant awards and national employment standards. The commission also found that the agreement was likely to achieve improved productivity and efficiency in the workplace. The agreement was therefore deemed to meet the better off overall test. Based on these findings, Commissioner Forrest approved the agreement.

The FWC approved the IVF Australia Pty Limited Nursing Enterprise Agreement 2018. The approval was effective from 1 April 2018. The decision was made on 20 September 2018.

IVF Australia Pty Limited T/A IVF Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established