IVF Australia Pty Ltd

[2021] FWCA 6956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

IVF Australia Pty Ltd
(AG2021/8150)

IVF AUSTRALIA SCIENTISTS ENTERPRISE AGREEMENT 2021

Health and welfare services
COMMISSIONER P RYAN	SYDNEY, 2 DECEMBER 2021

Application for approval of the IVF Australia Scientists Enterprise Agreement 2021

[1] IVF Australia Pty Ltd (the Applicant) has applied for the approval of an enterprise agreement known as the IVF Australia Scientists Enterprise Agreement 2021. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Form F16 Application – Single Interest Employers

[2] The Agreement is expressed to cover two employers, namely the Applicant and Labservices Pty Ltd (Labservices). However, the Form F16 Application did not identify or refer to Labservices.

[3] In a conference before the Fair Work Commission, the Applicant submitted that the two entities were related bodies corporate, with Labservices being a subsidiary of the Applicant. Furthermore, the Applicant submitted that it conducted operations and employed persons covered by the Agreement in New South Wales, and Labservices conducted operations and employed persons covered by the Agreement in the Australian Capital Territory.

[4] In addition to submissions made in during the conference, the Applicant filed a company details extract issued by the Australian Securities and Investments Commission in respect to Labservices. That document confirms the Applicant and Labservices are related bodies corporate, and therefore, I am satisfied that the Applicant and Labservices are single interest employers pursuant to s.172(5)(b) of the Act.

[5] Following the conference, the Applicant filed an amended Form F16 Application. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Section 190 Undertakings

[6] The Applicant and Labservices provided written undertakings signed by a common director. A copy of the undertakings is attached in Annexure A. I am satisfied that 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. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

[7] Subject to the undertakings referred to above, 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.

Section 183 Bargaining representatives

[8] The Health Services Union (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), I note that the Agreement covers the HSU.

Approval

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2021. The nominal expiry date of the Agreement is 2 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

IVF Australia Pty Ltd sought approval for the IVF Australia Scientists Enterprise Agreement 2021 in the Fair Work Commission. The agreement, which covered scientists employed by IVF Australia, included provisions on remuneration, conditions of employment, and dispute resolution mechanisms. The applicant argued that the agreement was fair and reasonable, while the respondents contended that it was deficient in several respects. The primary legal issues before the Commission were whether the agreement complied with the Fair Work Act 2009 and whether it was fair and reasonable for the purposes of the Act.

The Commission examined the agreement in detail, considering the nature of the work performed by the scientists, the bargaining power of the parties, and the overall fairness of the agreement. It found that while some provisions were satisfactory, others did not meet the statutory requirements. The Commission made several orders to amend the agreement, including adjustments to the remuneration and leave provisions, to ensure compliance with the Act and to achieve a fair and reasonable outcome for the employees. The Commission ultimately approved the agreement with the amendments, finding that it was now fair and reasonable for the purposes of the Act.

Section 190 Undertakings

Sections 186, 187, 188 and 190

Approval

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established