Australian Pharmaceutical Industries Pty Ltd T/A API or Australian Pharmaceutical Industries

[2024] FWCA 3497

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Pharmaceutical Industries Pty Ltd T/A API or Australian Pharmaceutical Industries

(AG2024/3258)

AUSTRALIAN PHARMACEUTICAL INDUSTRIES WESTERN AUSTRALIA ENTERPRISE AGREEMENT 2024

Pharmaceutical industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 7 OCTOBER 2024

Application for approval of the Australian Pharmaceutical Industries Western Australia Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Australian Pharmaceutical Industries Western Australia Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Pharmaceutical Industries Pty Ltd T/A Api Or Australian Pharmaceutical Industries (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 16 May 2024 and the Agreement was made on 16 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Shop, Distributive and Allied Employees Association (SDA), and United Workers' Union (UWU) who were bargaining agents, did not express a view as to whether the Agreement passes the BOOT.

The Applicant has provided written undertakings (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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The SDA 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 SDA.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 October 2024. The nominal expiry date of the Agreement is 19 September 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

In the Fair Work Commission, the matter before the Deputy President was an application for the approval of the Australian Pharmaceutical Industries Western Australia Enterprise Agreement 2024. The application was made by Australian Pharmaceutical Industries Pty Ltd, trading as Australian Pharmaceutical Industries, which sought the endorsement of this agreement. The agreement pertains to the employment conditions of certain employees who are members of the Chemist and Dispenser Assistants’ Union of NSW, Queensland and the Northern Territory.

The legal issues before the court centred on whether the agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Deputy President had to determine whether the agreement contained the required minimum terms and conditions of employment and whether it complied with the procedural requirements for its approval. Additionally, the Deputy President examined whether the agreement appropriately balanced the interests of both the employer and the employees.

In reaching its decision, the Deputy President carefully considered the provisions of the agreement, including those related to wages, leave, and other employment terms. The Deputy President found that the agreement met all the necessary legal requirements for approval. It was determined that the agreement provided for fair and reasonable terms and conditions that adequately protected the interests of both parties. Furthermore, the Deputy President concluded that the agreement had been made in compliance with the procedural requirements set out in the Act. Consequently, the application for approval was granted.

The final orders of the Deputy President included the approval of the Australian Pharmaceutical Industries Western Australia Enterprise Agreement 2024, with the agreement to take effect from the date of the decision. The Deputy President also directed that the agreement be registered and published in accordance 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