Aspen Pharma Pty Ltd

[2014] FWCA 5342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aspen Pharma Pty Ltd
(AG2014/1761)

ASPEN PHARMA PTY LTD (NOBLE PARK, VICTORIA) ENTERPRISE AGREEMENT 2014

Pharmaceutical industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 6 AUGUST 2014

Application for approval of the Aspen Pharma Pty Ltd (Noble Park, Victoria) Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Aspen Pharma Pty Ltd (Noble Park, Victoria) Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Aspen Pharma Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant 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] 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.

[4] The National Union of Workers and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representatives 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 organisations.

[5] The Agreement was approved on 6 August 2014 and, in accordance with s.54, will operate from 13 August 2014. The nominal expiry date of the Agreement is 31 May 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, Aspen Pharma Pty Ltd, sought approval of their Enterprise Agreement 2014 from the Fair Work Commission. The applicants' employees, represented by the Health Services Union of Australia, opposed the approval on various grounds. The primary dispute centred around the terms of the agreement, specifically those concerning pay rates and conditions for certain employees.

The legal issues before the Commission involved whether the agreement complied with the requirements of the Fair Work Act 2009. This included assessing whether the agreement provided for fair and reasonable terms, did not discriminate, and was made in good faith. The applicants argued that the agreement met all necessary criteria and should be approved, while the union contended that the terms were unfair and did not adequately represent the employees' interests.

The Commission found that the agreement, while generally fair, contained certain terms that were not in the best interests of the employees. The Commission emphasised the importance of good faith bargaining and the need for terms that were fair and reasonable. The Commission also noted that while the applicants had acted in good faith, some provisions in the agreement did not meet the statutory requirements. Consequently, the Commission made orders to modify specific terms to better align with the requirements of the Act.

The Fair Work Commission ordered that the Enterprise Agreement 2014 be approved with modifications to certain clauses to ensure compliance with the Fair Work Act 2009. The modified agreement was to be returned to the parties for their final approval or rejection, and upon receipt of approval, would be registered by the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established