Ivfaustralia Pty Ltd T/A Ivfaustralia - [2022] FWCA 1972

[2022] FWCA 1972

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ivfaustralia Pty Ltd T/A Ivfaustralia

(AG2022/1387)

IVF AUSTRALIA PTY LTD NURSING ENTERPRISE AGREEMENT 2021

Health and welfare services
COMMISSIONER P RYAN	SYDNEY, 16 JUNE 2022

Application for approval of the IVF Australia Pty Ltd Nursing Enterprise Agreement 2021

IVF Australia Pty Ltd T/A IVF Australia (the Applicant) has made an application for approval of an enterprise agreement known as the IVF Australia Pty Ltd Nursing Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Single Interest Employers

The Agreement is expressed to cover four employers: the Applicant, Alexandria Specialist Day Hospital Pty Ltd, North Shore Specialist Day Hospital Pty Ltd, and City West Specialist Day Hospital Pty Ltd ATF the City West Day Surgery Unit Trust.

The application included company details extracts issued by the Australian Securities and Investments Commission (ASIC) for each entity. Those documents confirm the Applicant, Alexandria Specialist Day Hospital Pty Ltd and North Shore Specialist Day Hospital Pty Ltd are related bodies corporate. Accordingly, I am satisfied that those employers are single interest employers (see s.172(5)(b) of the Act).

In relation to City West Specialist Day Hospital Pty Ltd ATF the City West Day Surgery Unit Trust, the Applicant submitted that it was engaged in a common enterprise with this employer. In support of this submission, the Applicant provided supporting documentary material and relied on the definition of common enterprise as expressed by Mason J (as he then was) in Australian Softwood Forest Pty Ltd v Attorney-General (NSW); Ex Rel Corporate Affairs Commission[1], in which his Honour stated:

“An enterprise may be described as common if it consists of two or more closely connected operations on the footing that one part is to be carried out by A and the other by B, each deriving a separate profit from what he does, even though there is no pooling or sharing of receipts of profits. It will be enough that the two operations constituting the enterprise contribute to the overall purpose that unites them. There is then an enterprise common to both participants and, accordingly, a common enterprise.”[2]

Having regard to the materials filed and the submissions made by the Applicant, I am satisfied that the Applicant and City West Specialist Day Hospital Pty Ltd ATF the City West Day Surgery Unit Trust are employers engaged in a common enterprise (see s.172(5)(a) of the Act).

Notice of Employee Representational Rights

The Notice of Employee Representational Rights (NERR) was issued on 29 April 2021 and described the proposed coverage of the proposed agreement as “employees that are currently covered by the IVF Australia Pty Ld [sic] Nursing Enterprise Agreement 2018 excluding the position of Director of Nursing.” (emphasis added)

The Agreement included within its classification structure the position of Director of Nursing. My chambers raised this issue with the Applicant who confirmed that while the classification of Director of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWCA 1972
Decision Date: 16 JUNE 2022

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for approval of the IVF Australia Pty Ltd Nursing Enterprise Agreement 2021. The parties involved were IVF Australia Pty Ltd, trading as IVF Australia, and the Health Services Union (HSU). The nature of the dispute was the proposed enterprise agreement, which aimed to establish the terms and conditions of employment for nurses working at IVF Australia. The court was the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009.

The legal issues the court had to decide included whether the proposed agreement met the statutory requirements for approval under the Fair Work Act, particularly in relation to the provisions on wages, hours of work, and other conditions of employment. The court also needed to determine if the agreement provided for the fair and reasonable treatment of employees, and whether it complied with the "better off overall test." This test requires that employees be no worse off and at least some employees be better off financially under the new agreement compared to their previous conditions.

The Fair Work Commission found that the proposed agreement met the statutory requirements and provided for fair and reasonable treatment of employees. The court was satisfied that the agreement provided for appropriate wage rates, reasonable hours of work, and other conditions of employment. The better off overall test was also met, as the commission determined that at least some employees would be better off financially under the new agreement. Therefore, the court approved the IVF Australia Pty Ltd Nursing Enterprise Agreement 2021. The final orders were that the agreement be registered and approved as a registered agreement under the Fair Work Act, effective from the date of the decision.

Orders