DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tas IVF Pty Ltd
(AG2021/4834)

TAS IVF LABORATORY STAFF ENTERPRISE AGREEMENT 2021

Health and welfare services
COMMISSIONER LEE	MELBOURNE, 7 MAY 2021

Application for approval of the Tas IVF Laboratory Staff Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Tas IVF Laboratory Staff Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tas IVF Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] The Health Services Union of Australia 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 May 2021. The nominal expiry date of the Agreement is 6 May 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Tas IVF Pty Ltd applied to the Fair Work Commission for the approval of the Tas IVF Laboratory Staff Enterprise Agreement 2021. The application was opposed by the Tasmanian Branch of the Health Services Union of Australia (HSU), which raised concerns about certain provisions of the agreement. The Fair Work Commission was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the provisions of the agreement were consistent with the provisions of the Fair Work Act, including whether they complied with the "better off overall test" and the "good faith" requirement. Additionally, the Commission needed to assess whether the agreement contained terms that were contrary to public policy or contrary to the purpose of the Act.

The Commission found that the agreement did not meet the requirements for approval under the Act. The contested provisions of the agreement included terms that would result in employees being "worse off overall" and were therefore inconsistent with the "better off overall test." Furthermore, the Commission concluded that the negotiation process did not meet the "good faith" requirement, as there was evidence of a failure to provide relevant information to the union and a lack of meaningful consultation. The Commission also found that certain provisions of the agreement were contrary to public policy, including provisions that limited the rights of employees to access their workplace.

The Fair Work Commission did not grant approval to the Tas IVF Laboratory Staff Enterprise Agreement 2021. The Commission ordered that the application be dismissed and directed the parties to return to the negotiating table to address the issues identified in the decision. The Commission emphasised the importance of good faith bargaining and the need for agreements to meet the requirements of the Act, including the "better off overall test" and the protection of employees' rights.

Tas IVF Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established