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

1. 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

1. 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.

1. 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).

1. 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]

1. 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

1. 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)

1. 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 Nursing was initially excluded from the scope of the proposed agreement, the scope was later expanded to include that classification.

1. My chambers then sent further correspondence to the Applicant seeking the date the proposed coverage was expanded, the date that the NERR was issued to employees falling within the scope of the expanded coverage, and a copy of any document evidencing distribution of the NERR. The Applicant’s attention was drawn to the decision of a Full Bench in Australian Manufacturing Workers’ Union v Broadspectrum (Australia) Pty Ltd [2018] FWCFB 6556.

1. In response to that correspondence, the Applicant confirmed the scope of coverage was expanded on 16 September 2021 and that there were two employees falling within the expanded scope at that time. The Applicant confirmed those employees received the NERR as part of the distribution of that document on 29 April 2021. The Applicant also advised that a third person falling within the scope of the expanded coverage was employed on 29 September 2021.

1. The Applicant submitted that to the extent the failure to issue the NERR to the two employees within 14 days of 16 September 2021 was an error, it was a minor procedural error.[3]

1. The Applicant further submitted the two employees had participated in bargaining either directly or indirectly through their bargaining representative, the Australian Nursing and Midwifery Federation (ANMF), and in the case of one of the employees, they had attended every bargaining meeting. The Applicant submitted in these circumstances the employees have not been disadvantaged by the error. A statement from each employee was submitted confirming these matters.

1. The decision to expand the coverage of the proposed agreement triggered an additional notification time, requiring the issuing of a NERR to any employees falling within the expanded scope of coverage.[4]

1. It is clear from the materials filed that the employees received the NERR, albeit prior to the relevant notification time, and that they actively participated in bargaining or were represented by their bargaining representative.

1. I am satisfied having regard to the Applicant’s submissions, the materials filed, and the decision of the Full Bench in Huntsman that this constitutes a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the two employees were not likely to have been disadvantaged by the error.

1. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

1. For completeness, I note the third person falling within the scope of the expanded coverage was employed on 29 September 2021. However, as that person was not an employee at the notification time of 16 September 2021, there was no requirement to issue the NERR to that employee.[5]

Section 190 Undertakings

1. The Employer provided written undertakings. 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

Section 186, 187, 188 and 190

1. 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

1. The ANMF being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the ANMF.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 June 2022. The nominal expiry date of the Agreement is 16 June 2025.

COMMISSIONER

[1] (1981) 148 CLR 121.

[2] Ibid at p.133.

[3] Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 (Huntsman).

[4] Appeal by Uniline Australia Limited [2016] FWCFB 4969 at [113]; Australian Manufacturing Workers' Union v Broadspectrum (Australia) Pty Ltd [2018] FWCFB 6556 at [23]-[26].

[5] s.173(1)(b) of the Act; Re Walter Wright Cranes[2013] FWC 4168 at [17].

Printed by authority of the Commonwealth Government Printer

<AE516296  PR742703>