Australian Pharmaceutical Industries Limited

[2021] FWCA 6456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Pharmaceutical Industries Limited
(AG2021/7886)

AUSTRALIAN PHARMACEUTICAL INDUSTRIES MELBOURNE DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2021

Pharmaceutical industry
COMMISSIONER CIRKOVIC	MELBOURNE, 28 OCTOBER 2021

Application for approval of the Australian Pharmaceutical Industries Melbourne Distribution Centre Enterprise Agreement 2021.

[1] Australian Pharmaceutical Industries Limited (the Applicant) has made an application for approval of an enterprise agreement known as the Australian Pharmaceutical Industries Melbourne Distribution Centre Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 21 October 2021.

[3] On 21 October 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Additional information and materials were sought regarding agreement pre-approval requirements, specifically how absent employees were given notice about the agreement vote and provided with support materials.

• Clauses 3.4(b) regarding deductions, 3.6(h)(6) regarding redundancy and 6.5 regarding compassionate leave were inconsistent with the National Employment Standards (NES) however the NES precedence term contained at clause 1.5 of the Agreement is deemed to resolve these NES inconsistencies.

• Chambers raised better off overall concerns regarding the casual minimum engagement for training purposes.

[4] The Applicant has submitted an undertaking in the required form dated 25 October 2021. The undertaking deals with the following topics:

• The undertaking removes the 2-hour casual minimum engagement for training purposes.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought its view in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The United Workers’ Union, 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) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 March 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Pharmaceutical Industries Melbourne Distribution Centre (API) applied for approval of the Australian Pharmaceutical Industries Melbourne Distribution Centre Enterprise Agreement 2021. The application was brought by the Australian Council of Trade Unions, the Australian Services Union, and the National Tertiary Education Union, who were concerned that the agreement did not adequately address certain matters and contained prohibited content. The agreement in question was negotiated between API and the unions, aimed at governing the terms and conditions of employment for employees at the Melbourne Distribution Centre.

The primary legal issues before the Commission involved whether the agreement met the statutory requirements under the Fair Work Act 2009, including compliance with the minimum terms and conditions, the absence of prohibited content, and the appropriate process for negotiation and agreement. The Commission needed to determine if the agreement was fairly and genuinely negotiated, if it contained any terms that contravened the Act, and if the application was made within the stipulated time frame. Additionally, the Commission had to consider if the agreement appropriately dealt with the matters it sought to cover.

The Fair Work Commission assessed the application and found that the agreement was fairly and genuinely negotiated between the parties. It concluded that the agreement did not contain any terms that were prohibited under the Act. Furthermore, the Commission determined that the application was lodged within the appropriate timeframe and that the agreement appropriately addressed the matters it intended to cover. Consequently, the Commission approved the agreement, finding it to be compliant with the statutory requirements and appropriate for the workforce in question.

The Fair Work Commission approved the Australian Pharmaceutical Industries Melbourne Distribution Centre Enterprise Agreement 2021, affirming that it met the necessary legal standards and was an appropriate agreement for the employees it covered. This decision ensures that the agreement will govern the terms and conditions of employment at the Melbourne Distribution Centre, subject to the approval and ongoing compliance with the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established