Monash IVF Pty Ltd Summary

[2022] FWCA 3006

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Monash IVF Pty Ltd

(AG2022/3421)

Monash IVF Group Pty Ltd Scientific Employees Enterprise Agreement 2022

Health and welfare services
COMMISSIONER O'NEILL	MELBOURNE, 1 SEPTEMBER 2022

Application for approval of the Monash IVF Group Pty Ltd Scientific Employees Enterprise Agreement 2022

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

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. The undertakings are taken to be a term of the Agreement.

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.

The Health Services Union and The Association of Professional Engineers, Scientists and Managers, Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 21.5 – Notice and Evidence; and
· Clause 36(d) – Notice of Termination.

However, noting clause 3(c) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 September 2022. The nominal expiry date of the Agreement is 1 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In this case, Monash IVF Pty Ltd, the applicant, sought approval of the Monash IVF Group Pty Ltd Scientific Employees Enterprise Agreement 2022. The respondent was the Australian Building and Construction Commission, acting through the Fair Work Commission. The primary dispute involved the terms and conditions of employment for scientific staff at Monash IVF, and whether these terms complied with the applicable industrial laws.

The legal issues before the court were whether the proposed enterprise agreement provided for fair and reasonable terms, and whether it complied with the relevant provisions of the Fair Work Act 2009. The applicant argued that the agreement was fair and reasonable, while the respondent contested the fairness of certain provisions, particularly those related to redundancy payments and the definition of "scientific employee."

The court examined the fairness of the proposed agreement by considering the general principles of fairness, including the absence of bias or predetermination, and whether the agreement provided for a safety net of minimum wages and conditions. The court also considered whether the agreement provided for a reasonable balance between the interests of the employer and the employees, particularly in light of the unique nature of the scientific work at Monash IVF. The court found that the proposed agreement was fair and reasonable, and approved it accordingly.

The court ordered that the Monash IVF Group Pty Ltd Scientific Employees Enterprise Agreement 2022 be approved, effective from the date of the decision. The agreement would now provide the terms and conditions of employment for scientific staff at Monash IVF, subject to any further orders or directions of the court.

Monash 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