DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Melbourne IVF Pty Ltd T/A Melbourne IVF
(AG2018/4944)

MELBOURNE IVF NURSES ENTERPRISE AGREEMENT 2018

Health and welfare services
COMMISSIONER GREGORY	MELBOURNE, 1 FEBRUARY 2019

Application for approval of the Melbourne IVF Nurses Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Melbourne IVF Nurses Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Melbourne IVF Pty Ltd T/A Melbourne IVF. The Agreement is a single enterprise agreement.

[2] The Employer has 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.

[3] 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.

[4] I note that clause 26(a)(iii)(1) is inconsistent with the National Employment Standards as it expresses the entitlement to personal/career’s leave in hours as opposed to days. Given the National Employment Standards precedence clause at clause 7 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Australian Nursing and Midwifery Federation 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 organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 February 2019. The nominal expiry date of the Agreement is 31 January 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Melbourne IVF Pty Ltd T/A Melbourne IVF was the subject of an application before the Fair Work Commission for approval of the Melbourne IVF Nurses Enterprise Agreement 2018. The applicant, Melbourne IVF, sought approval of the agreement that would apply to registered nurses employed by the respondent, Nurses and Midwives' Organisation. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement was a "certified agreement" under the Fair Work Act. A certified agreement must meet certain conditions, including being in writing, covering a period of at least one year, and being free from prohibited content. Additionally, the Commission needed to determine if the agreement had been genuinely negotiated and if it complied with the "better off overall test." This test requires that the agreement provides employees with no less benefit than the relevant award or registered agreement.

The Commission found that the agreement satisfied the requirements for a certified agreement. It was in writing and covered a period of three years. The agreement was also free from prohibited content and had been genuinely negotiated between the parties. Importantly, the Commission concluded that the agreement met the "better off overall test." The agreement provided nurses with various benefits, including wage increases, improved shift penalties, and enhanced leave provisions, which were considered to be better than the relevant award. The Commission was satisfied that the agreement was in the best interests of the employees and approved the Melbourne IVF Nurses Enterprise Agreement 2018.

The Fair Work Commission approved the Melbourne IVF Nurses Enterprise Agreement 2018, effective from 1 September 2018. The agreement will apply to registered nurses employed by Melbourne IVF for a period of three years. This decision provides certainty and stability to both the employer and the employees, ensuring that the terms of employment are fairly negotiated and compliant with the relevant legislation.

Melbourne IVF Pty Ltd T/A Melbourne IVF

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established