Adelaide Radiotherapy Centre Pty Ltd T/A Genesiscare South Australia

[2023] FWCA 2898

[2023] FWCA 2898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Adelaide Radiotherapy Centre Pty Ltd T/A Genesiscare South Australia

(AG2023/2770)

GENESISCARE ONCOLOGY SA PATIENT SERVICES AND RADIATION THERAPISTS ENTERPRISE AGREEMENT 2023

Health and welfare services
DEPUTY PRESIDENT DOBSON	BRISBANE, 8 SEPTEMBER 2023

Application for approval of the GenesisCare Oncology SA Patient Services and Radiation Therapists Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the GenesisCare Oncology SA Patient Services and Radiation Therapists Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Adelaide Radiotherapy Centre Pty Ltd T/A GenesisCare (the Applicant). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was not later than 13 March 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 10 August 2023.

1. The Notice of Employee Representational Rights (NERR) distributed to employees proposed a different Agreement name and narrower scope (Radiation Therapists) to that which has been made with an amended name and broader scope (adding Patient Services Officers). I noted that the NERR was re-issued to the broader group and that is reflected in the notification time. However, by reference to the evidence and submissions before me as to these circumstances, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

Reasonably Foreseeable Patterns or Kinds of Work or Types of Employment

1. Correspondence was sent to my Chambers on 29 August 2023 raising concerns in respect of two circumstances that were submitted to be reasonably foreseeable and that may leave employees worse off. Those concerns were:

a.That the Agreement contained less beneficial circumstances with respect to higher duties payments for Patient Services Officers where they may be required to ‘undertake higher duties several times a fortnight and never have access to the high (sic) duties. If these circumstances were to be repeated across the life of the enterprise agreement, the employee may be significantly worse off.”

b.That the Agreement does not provide for automatic progression through the pay points and an employee could be held back from progression over the life of the Agreement.

1. The Employer provided submissions in respect of these issues on 25 August 2023, 31 August 2023, 4 September 2023 and 6 September 2023. The Employer submitted that the circumstances that gave rise to the concerns were remote. I considered the views of the employer and the employee bargaining representative and the submissions that the circumstances foreshadowed, would pass the better off overall test in any event. In respect of the higher duties payments, I am satisfied that in the event that those circumstances arise, the Agreement passes the better off overall test in accordance with s.193 of the Act. In respect of the pay point progression, I am satisfied on the basis of undertakings provided by the Applicant, that in the event that those circumstances arise, the Agreement passes the better off overall test in accordance with s.193 of the Act.

1. The Applicant has provided written undertakings. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Health Services Union (HSU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the HSU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 1 April 2026.

DEPUTY PRESIDENT

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