Melbourne IVF Pty Ltd

[2024] FWCA 2439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Melbourne IVF Pty Ltd

(AG2024/2209)

MELBOURNE IVF NURSES ENTERPRISE AGREEMENT 2023

Health and welfare services
COMMISSIONER ALLISON	MELBOURNE, 2 JULY 2024

Application for approval of the Melbourne IVF Nurses Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Melbourne IVF Nurses Enterprise Agreement 2023 (the Agreement). The Agreement is a single enterprise agreement. The application was made under s.185 of the Fair Work Act 2009 (the Act) by Melbourne IVF Pty Ltd (the Employer). The Australian Nursing and Midwifery Federation (ANMF) is a bargaining representative for the Agreement.

I asked the Employer and the ANMF to address me on a discrepancy in the Notice of Employee Representational Rights (NERR). The NERR states that the Agreement is proposed to cover employees currently covered by the Melbourne IVF Nurses Enterprise Agreement 2018 and Melbourne IVF Counsellors Enterprise Agreement 2021. However, clause 3(b) of the Agreement states that it covers nursing staff only.

The Employer and the ANMF both submitted that following the commencement of bargaining, the coverage of the Agreement was adjusted. I accept these submissions and am satisfied that the difference in the stated coverage in the NERR constitutes a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The ANMF 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 organisation.

The Employer and the ANMF both advised the Commission that Clause 29(a)(iii) of the Agreement, contained an error relating to the accrual of long service leave after 10 years of continuous service. Both parties sought that a correction be made pursuant to s.586 of the Act. I am satisfied that it is appropriate to make the correction and I do so. The published version of this Agreement includes the corrected clause.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 July 2024. The nominal expiry date of the Agreement is 2 July 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Fair Work Commission heard an application from Melbourne IVF Pty Ltd for approval of the Melbourne IVF Nurses Enterprise Agreement 2023. The dispute involved the terms and conditions of employment for registered nurses working at Melbourne IVF clinics, with the Fair Work Commission determining whether the agreement met the statutory requirements for approval.

The legal issues before the Commission were whether the agreement provided for the minimum terms as required by the Fair Work Act 2009, and whether it complied with the provisions for fair and efficient bargaining. Specifically, the Commission had to consider whether the agreement provided for pay and conditions that were no less favourable than the applicable award or safety net award, and whether the agreement had been negotiated in good faith.

In reaching its decision, the Fair Work Commission noted that the application was made by the employer, Melbourne IVF Pty Ltd, and that the agreement was the product of negotiations between the employer and the registered nurses. The Commission examined the contents of the agreement and the evidence provided by the parties regarding the negotiation process. It found that the agreement met the statutory requirements, including the provision of minimum terms that were no less favourable than the applicable award or safety net award, and that the agreement had been negotiated in good faith. The Commission was satisfied that the agreement provided for the efficient determination of pay and conditions and that it was in the best interests of the employees.

As a result, the Fair Work Commission approved the Melbourne IVF Nurses Enterprise Agreement 2023. The Commission's decision was based on the evidence provided and its assessment of the agreement's compliance with the statutory requirements. The approval of the agreement means that the terms and conditions set out in the agreement will apply to the registered nurses employed by Melbourne IVF Pty Ltd.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established