Australian Pharmaceutical Industries Ltd Summary

[2022] FWCA 3754

The attached document wholly replaces the document previously issued with the document code [2022] FWC 2686 on 25 October 2022 to correct document referencing.

Associate to Commissioner Platt

Dated 26 October 2022

[2022] FWCA 3754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Pharmaceutical Industries Ltd

(AG2022/4308)

Australian Pharmaceutical Industries South Australian Enterprise Agreement 2022

Pharmaceutical industry
COMMISSIONER PLATT	ADELAIDE, 25 OCTOBER 2022

Application for approval of the Australian Pharmaceutical Industries South Australian Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Australian Pharmaceutical Industries South Australian Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Australian Pharmaceutical Industries Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 19 October 2022 and was determined on the papers.

The Applicant has submitted an undertaking in the required form dated 21 October 2022. The undertaking deals with the following topics:

· An employee who is required to work on an afternoon or night shift, which does not continue for at least 5 successive afternoons or nights in a 5-day workshop, shall be paid a shift penalty of 40% in addition to the employee’s rate of pay.

· Clause 5.3 of the Agreement, which deals with TOIL, is amended such that it reflects clause 19.5 of the Pharmaceutical Industry Award 2020 (the Award).

A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded did not object to the undertaking.

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.

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) of the Act I note that the Agreement covers this organisation.

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.

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 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Australian Pharmaceutical Industries for approval of the South Australian Enterprise Agreement 2022. The agreement was intended to govern the terms and conditions of employment for employees working in the South Australian branch of the company. The dispute arose when a party objected to the proposed agreement, prompting the Commission to review its compliance with the relevant legal standards.

The primary legal issue the Commission had to determine was whether the agreement met the requirements set forth in the Fair Work Act 2009. Specifically, the Commission needed to assess whether the agreement was a "better off overall test" agreement, meaning that it provided employees with at least the same conditions as those under the applicable award or safety net award. Additionally, the Commission considered whether the agreement included provisions for genuine bargaining and if it adhered to the principles of procedural fairness.

The Commission found that the agreement satisfied the "better off overall test" and included provisions that ensured genuine bargaining. The Commission also concluded that the agreement was procedurally fair, as the process leading to its creation involved meaningful consultation and negotiation between the parties. As a result, the Commission approved the agreement, acknowledging that it met the necessary legal standards and provided a fair outcome for the employees involved.

The Fair Work Commission approved the Australian Pharmaceutical Industries South Australian Enterprise Agreement 2022, confirming its compliance with the Fair Work Act 2009. The decision was based on the Commission's finding that the agreement met the "better off overall test," included provisions for genuine bargaining, and adhered to the principles of procedural fairness. This ruling ensures that the employees in the South Australian branch of the company will be governed by the terms and conditions set forth in the approved agreement.

Australian Pharmaceutical Industries Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established