Monash IVF Pty Ltd

[2022] FWCA 4365

[2022] FWCA 4365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Monash IVF Pty Ltd

(AG2022/4781)

Monash IVF Counselling Employees Enterprise Agreement 2022

Health and welfare services
COMMISSIONER MIRABELLA	MELBOURNE, 12 DECEMBER 2022

Application for approval of the Monash IVF Counselling Employees Enterprise Agreement 2022.

1. Monash IVF Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Monash IVF Counselling Employees Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Employers covered by the Agreement (the Employers) have 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.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. The Employers gave the notice of employee representational rights to employees later than 14 days after the notification time for the Agreement. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.173(3). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

1. I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3(c) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Health Services Union, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 12 December 2022 and, in accordance with s.54, will operate from 19 December 2022. The nominal expiry date of the Agreement is 30 January 2026.

COMMISSIONER

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Annexure A