GENESIS CANCER CARE QLD PTY LIMITED RADIATION THERAPISTS ENTERPRISE AGREEMENT 2024

Application for approval of the Genesis Cancer Care QLD Pty Limited Radiation Therapists Enterprise Agreement 2024

[1] This decision deals with an application made for approval of an enterprise agreement known as the Genesis Cancer Care QLD Pty Limited Radiation Therapists Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Genesis Cancer Care QLD Pty Limited (the Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement contains a delegates' rights term.[1] There are some provisions of the delegates' rights term in the Agreement that are less favourable than the Award and some that are more beneficial than the Award. I raised this by correspondence with the parties on 21 March 2025, let them know that I was considering applying the term from the Award pursuant to s.205A of the Act and gave them an opportunity to make submissions on this.

[3] The Applicant responded on 25 March 2025 and indicated that they were comfortable to have the Award term applied. The United Workers Union (UWU) replied later on 25 March 2025 and made submissions that I should consider the comparison of the Award and Agreement terms "over the life of the Agreement." The UWU submitted that the Agreement afforded delegates' 3 days paid leave during each financial year[2] during the life of the Agreement and the Award provided for 7 paid days over that same time (until the Agreements nominal expiry date on 30 June 2027).[3]

[4] I note that the Award more accurately provides for up to 5 days paid leave for initial training and then a further amount of at least 1 day each subsequent year.[4] The initial period is 2 days more in the Award than the Agreement. Further subsequent years under the Award provide for at least 1 day therefore this is the minimum entitlement.

[5] The UWU further raised that the EBA also provides for 1 delegate per site unless the number of employees on that site goes over 50 employees at that site as compared to the Award which restricts the number of delegates' to 1 per 50 employees. I accept that the Agreement term in this respect is more favourable than this provision under the award. The UWU submits therefore that the delegates' right term in the Agreement is more favourable than the award and that over the life of the Agreement, the delegate rights term is therefore "compliant with the Award term".[5]

[6] The Act requires that an enterprise agreement must include a delegates' rights term for workplace delegates to whom it applies. Further that the modern award term will prevail unless, "if, when the agreement is approved, the delegates rights term is less favourable than"[6] the delegates rights term in the relevant modern award.[7] The test therefore is conducted when the Agreement is approved

[7] Noting that there is a benefit of 5 days that will be granted under the Award and only 3 days under the Agreement, the term in the Agreement is initially less beneficial in this regard than the Award. The Act does not provide for the terms to be compared on a global basis or over the life of the Agreement. On that basis, where any aspect of the term is less beneficial, the Act provides that I must apply the modern award term (the whole term in the Agreement has no effect and the most favourable whole term in any of the relevant modern awards, is taken to be a term of the Agreement)[8].

[8] In circumstances where the Agreement does not contain a delegates' rights term that is, in all respects, no less favourable than the modern award, pursuant to s.205A, the term in the relevant modern award will apply and the delegates' rights term in the Agreement at clause 41 will have no effect.

[9] On the basis of the material contained in the application and accompanying declarations, having regard to the Statement of Principles,[9] I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

[10] The UWU 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 UWU.

[11] The Agreement is approved and will operate in accordance with s.54 of the Act and cl.4.1 of the Agreement. The nominal expiry date of the Agreement is 30 June 2027.

[3] Email from UWU Mr Alex Nash to Chambers dated 25 March 2025 at 2.20pm.

[4] Health Professionals and Support Services Award 2020, cl.33A.8

[5] Email from UWU Mr Alex Nash to Chambers dated 25 March 2025 at 2.20pm.

[8] Health Professionals and Support Services Award 2020, cl.33A.8

[9] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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