| [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…
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- Case
- [2022] FWCA 1972
- Decision Date
CaseChat Overview and Summary
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.
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