Application for approval of the IVF Australia Scientists Enterprise Agreement 2024

[1] IVF Australia Pty Ltd (Applicant) has made an application for approval of an enterprise agreement known as the IVF Australia Scientists Enterprise Agreement 2024 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

[2] The Agreement is expressed to cover two employers, namely the Applicant and Labservices Pty Ltd (Employers). Having regard to the materials filed, I am satisfied that the Employers are related bodies corporate (see ss.172(2) and (5A) of the FW Act).

s.180(5) - Laboratory and Site Locations, Rates of Pay

[3] Clause 18 of the Agreement provides that sites operated by the Employers will be classified as follows:

• Group A: Greenwich Embryology, Alexandria Embryology, Westmead Embryology; and

• Group B: Canberra Embryology, Wollongong Embryology, Hunter Embryology, Nepean Embryology, Liverpool Embryology, Travelling Andrology.

[4] The rates of pay for Group A locations are higher than Group B locations, except for Grade 4 Level 3 where the rates of pay are the same.

[5] In a Form F18A, one of the employee bargaining representatives[1] raised concerns about the different rates of pay based on work location. The issue of different rates of pay based on location is not, in and of itself, a barrier to the approval of an enterprise agreement. However, noting that the existing enterprise agreement[2] does not provide for different rates of pay based on work location, I requested further information from the parties regarding the explanation provided to the employees and whether the Agreement has been genuinely agreed to by the employees.

[6] In response, the Applicant submitted further information regarding the explanation provided to the employees. I also received a further three Form F18A Declarations from employee bargaining representatives raising similar concerns about the different rates of pay for Group A and Group B locations.

[7] I subsequently conducted conferences with the parties on 9 April, 17 April, and 24 April 2025. I also received two further submissions from employee bargaining representatives prior to the conference on 24 April 2025. During the conference on 24 April 2024, the employee bargaining representatives elected to have the matter determined based on the materials filed to date rather than proceed to a hearing. I acceded to this request but provided the Applicant with an opportunity to provide any written submissions in reply to the submissions filed by the employee bargaining representatives.

[8] Section 188(1) of the FW Act requires the Commission to take into account the statement of principles made under s.188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement.

[9] Section 188(4A) states that the Commission cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with s.180(5).

[10] Section 180(5) of the FW Act states:

The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the employees employed at the time who will be covered by the agreement; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.

[11] The Statement of Principles relevantly provides as follows:

8. Section 180(5)(a) of the Fair Work Act requires the employer to take all reasonable steps to explain the terms of a proposed enterprise agreement, and the effect of those terms, to employees employed at the time who will be covered by the agreement. This should include at a minimum explaining to employees how the proposed agreement will alter their existing minimum entitlements and other terms and conditions of employment. In explaining this, subject to paragraph 9:

1. where a proposed enterprise agreement will replace an existing enterprise agreement - it will generally be sufficient to explain:

(i) the differences in entitlements and other terms and conditions between the proposed agreement and the existing agreement, and

(ii) the differences in entitlements and other terms and conditions between the proposed agreement and any applicable modern award provisions that have been varied since the existing agreement was made (including award variations that have not yet come into effect), or

1. where a proposed enterprise agreement will not replace an existing enterprise agreement - it will generally be necessary to explain the differences in entitlements and other terms and conditions between the proposed agreement and any applicable modern award.

12. Subject to paragraph 13, an employee may be provided with the explanation required by section 180(5):

1. by giving the employee, or ensuring the employee has access to, a hard copy of the explanation

2. by electronic means (either by sending the explanation to the employee, or by sending the employee a link to the explanation or otherwise giving the employee

1. orally, but the FWC may take into account whether there is a written record or summary kept of the oral explanation, or

13. Where an employee is provided with the explanation required by section 180(5) in part or full by the method in paragraph 12(a) or 12(b), the employee should have a reasonable opportunity to read the explanation. Where an employee is provided with the explanation required by section 180(5) in part or full by the method in paragraph 12(c), the employee should have a reasonable opportunity to attend the oral explanation.

[12] In Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Limited[3], a Full Bench of the Commission stated:

[72] The obligation under s.180(5) to take all reasonable steps to explain to relevant employees the terms of an enterprise agreement and the effect of those terms is an important function of the agreement-making scheme established by Part 2-4 of the Act. Its evident purpose, taking into account its role in assessing whether the employees who were asked to vote to approve an agreement genuinely agreed to the agreement, is to ensure that employees are as fully informed as practicable about the terms and effect of the terms of a proposed enterprise agreement before voting on whether to approve it. An employer's discharge of its obligation under s.180(5) is intended to enable employees to know what they are being asked to agree to, and to understand how their wages and working conditions might be affected by voting in favour of an agreement.

[13] The Employers first proposed the concept of separate pay rate schedules for Group A and Group B locations at a bargaining meeting on 19 December 2024. During that meeting, the bargaining representatives were provided with a presentation setting out which locations would be classified as Group A or Group B, as well as the rates of pay that were applicable in each year of the Agreement and the difference between the current rates of pay and the applicable rate of pay under the Agreement. Following that bargaining meeting, the Employers sent a copy of the presentation to all relevant employees.

[14] On 5 March 2025, the Employers provided the relevant employees with a Voting Pack which included:

• A copy of the Agreement;

• A 'request to vote' notice to employees; and

• An explanatory document which included links to the existing enterprise agreement and applicable modern award.

[15] The explanatory document:

• clearly sets out the locations and the applicable rates of pay over the life of the Agreement (including annual adjustments), and explains that:

  • a Group B location may be reclassified as a Group A location;

  • a Group A location cannot be reclassified as a Group B location; and

  • a 'Group B employee' will be paid Group A rates when working at a Group A location;

• notes that there is no equivalent provision in the existing agreement or applicable modern award; and

• states that this is a significant change that results in separate wage rates for employees working at Group A and Group B locations.

[16] On 11 and 12 March 2025, the Employers conducted presentations with employees where the rates of pay and Group A and Group B locations were explained to the employees. The presentation slides included each location and the hourly rate that will apply to each classification in each location over the life of the Agreement.

[17] The vote took place from 14-18 March 2025.

[18] The issue raised by the employee bargaining representatives is not whether the relevant terms and their effect were explained in an appropriate manner, as it is clear from the materials filed that the employee bargaining representatives understood the relevant terms and the effect of those terms, with one employee bargaining representative describing the explanation as being "presented clearly".

[19] Rather, the employee bargaining representatives contend that the introduction of separate wage schedules is unfair and discriminatory. In this respect, the employee bargaining representatives do not agree with the rationale for the separate wage schedules and contend that the rationale for introducing separate wage schedules was not sufficiently explained.

[20] As I noted above, the issue of different rates of pay based on location is not, in and of itself, a barrier to the approval of an enterprise agreement. Although the Group B employees may be dissatisfied with the introduction of separate wage schedules and hold valid concerns about the fairness of the division of locations between Group A and Group B, the task before me is to determine whether the terms of the Agreement and the effect of those terms were explained in an appropriate manner.

[21] I accept that an explanation of the rationale for a particular position may be relevant in the context of bargaining. However, for the purposes of the task before me neither s.180(5) nor the Statement of Principles require an employer to go beyond an explanation of the terms of the Agreement and the effect of the terms. Furthermore, s.186(1) of the FW Act provides that the Commission must approve an enterprise agreement if the requirements set out in ss.186 and 187 are met. Subject to those requirements being met, it is not relevant that a term of an enterprise agreement may have an arbitrary unfair impact on a particular cohort of employees.

[22] I also do not accept the contention that the relevant terms are discriminatory within the meaning of s.195. Section 195 is concerned with terms of enterprise agreements which textually, or as a matter of legal effect, discriminate against an employee "because of, or for reasons including, the employee's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin". It is not concerned with the effects of facially neutral terms in their operation (indirect discrimination). [4]

[23] Having regard to the material before me, including the material filed by the employee bargaining representatives, I am satisfied that the terms of the Agreement and the effect of those terms was explained in an appropriate manner. In coming to this conclusion, I am satisfied that the employees were provided with a reasonable opportunity to read the explanatory document and attend the presentations conducted on 11 and 12 March 2025.

[24] Accordingly, I am satisfied that the Employers complied with their obligation under s.180(5).

[25] In light of my conclusion concerning s.180(5), I am satisfied that each of the requirements of ss.186, 187 and 188 of the FW Act as are relevant to this application for approval have been met.

[26] The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 22 May 2025. The nominal expiry date of the Agreement is 31 October 2027.

[1] The Form F16 listed 13 employee bargaining representatives.

[2] IVF Australia Scientists Enterprise Agreement 2021 (AE514132)

[3] [2019] FWCFB 4022 at [72].

[4] See Kimberley Pearn, Katherine Zahrooni v Catholic Schools Parramatta Diocese Ltd [2023] FWC 3039 at [134]- [155] (and the authorities cited therein).

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