DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Genesis Cancer Care Victoria Pty Ltd T/A Genesis Cancer
(AG2018/7283)

GENESIS CANCER CARE VICTORIA PATIENT SERVICES ENTERPRISE AGREEMENT 2018

Health and welfare services
COMMISSIONER CIRKOVIC	MELBOURNE, 11 APRIL 2019

Application for approval of the Genesis Cancer Care Victoria Patient Services Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Genesis Cancer Care Victoria Patient Services Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Genesis Cancer Care Victoria Pty Ltd T/A Genesis Cancer. The Agreement is a single enterprise agreement.

[2] 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.

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

• Clause 27; and

• Clause 27(v)(2).

[4] However, noting clause 7 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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 Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] 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.

[7] The Agreement was approved on 11 April 2019 and, in accordance with s.54, will operate from 18 April 2019. The nominal expiry date of the Agreement is 1 October 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Fair Work Commission was brought by Genesis Cancer Care Victoria Pty Ltd, trading as Genesis Cancer, to obtain approval for the Genesis Cancer Care Victoria Patient Services Enterprise Agreement 2018. The application arose in the context of the need to formalise terms and conditions for employees under the Fair Work Act 2009. The primary legal issues that the court had to address involved the validity of the agreement under the statutory framework, specifically whether the agreement complied with the requirements set forth in the Fair Work Act, and whether the process of its formation was fair and appropriate.

The court examined whether the agreement contained all the mandatory terms as required by section 230 of the Fair Work Act, and if it provided for a fair and efficient process for the resolution of disputes. The court also considered whether the agreement was appropriately negotiated and whether it met the criteria for being deemed a simple, low-risk agreement. The analysis involved assessing the procedural fairness in the negotiation and drafting of the agreement, ensuring that the parties had genuinely attempted to reach an agreement without coercion or undue influence.

After careful consideration of the arguments presented and the evidence provided, the court found that the agreement met all the necessary statutory requirements. It was concluded that the agreement was fairly negotiated and contained all mandatory terms, thereby complying with the provisions of the Fair Work Act. The court approved the agreement, highlighting that it was appropriate for the specific circumstances of the employees and the employer. The approval was based on the evidence that the process adhered to the principles of procedural fairness and that the agreement was in the best interests of the employees.

The final orders of the court approved the Genesis Cancer Care Victoria Patient Services Enterprise Agreement 2018, effective from the date of the approval. This decision ensures that the agreement can now be formally implemented, providing clarity and certainty to both the employer and the employees regarding their rights and obligations under the agreement.

Genesis Cancer Care Victoria Pty Ltd T/A Genesis Cancer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established