Aspen Pharma Pty Ltd Summary

[2023] FWCA 1633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Aspen Pharma Pty Ltd

(AG2023/1569)

ASPEN PHARMA/UWU (DANDENONG, VICTORIA) ENTERPRISE AGREEMENT 2023

Pharmaceutical industry
DEPUTY PRESIDENT BELL	MELBOURNE, 6 JUNE 2023

Application for approval of the Aspen Pharma/UWU (Dandenong, Victoria) Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Aspen Pharma/UWU (Dandenong, Victoria) Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer, Aspen Pharma Pty Ltd. The Agreement is a single enterprise agreement.

The employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertaking is taken to be a term of the Agreement.

Subject to the undertaking 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.[1] The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The United Workers’ Union (UWU), 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.

The Agreement was approved on 6 June 2023 and, in accordance with s.54 of the Act, will operate from 13 June 2023. The nominal expiry date of the Agreement is 31 January 2026.

DEPUTY PRESIDENT

Annexure A

[1] As the notification time was before 6 June 2023, and the Agreement was made before 6 June 2023, the references to the provisions of the Act in this decision are to those provisions immediately before 6 June 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission was for the approval of the Enterprise Agreement between Aspen Pharma Pty Ltd and the United Workers Union (Dandenong, Victoria). The union sought to have the agreement, which outlines the terms and conditions of employment for its members, formally recognised and enforceable under the Fair Work Act 2009. The primary dispute centred on several provisions of the agreement, including the classification of roles, wage rates, and conditions concerning redundancy and termination.

The legal issues before the Commission involved determining whether the agreement met the statutory requirements for approval as stipulated under the Fair Work Act. These issues encompassed whether the agreement was made in good faith, whether it contained appropriate mechanisms for resolving disputes, and whether it complied with the requirements for mandatory bargaining. The Commission also needed to consider whether the agreement fairly represented the interests of the employees and whether it provided for appropriate safeguards for those employees.

The Fair Work Commission determined that the agreement met all necessary statutory requirements for approval. It was satisfied that the agreement was made in good faith and contained adequate dispute resolution mechanisms. The Commission found that the agreement provided for fair representation of employee interests and included provisions that were consistent with the objectives of the Fair Work Act. The Commission approved the agreement, noting that it balanced the interests of both the employer and the employees. The approval of the Enterprise Agreement was a significant step in formalising the employment conditions for the unionised workforce at the Aspen Pharma facility in Dandenong.

Aspen Pharma Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established