Catalent Australia Pty Ltd Trading AS Blackmores Manufacturing Australia

[2025] FWCA 1933

[2025] FWCA 1933

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Catalent Australia Pty Ltd Trading AS Blackmores Manufacturing Australia

(AG2025/1424)

BLACKMORES MANUFACTURING AUSTRALIA MAINTENANCE ENTERPRISE AGREEMENT 2024

Pharmaceutical industry
COMMISSIONER PERICA	MELBOURNE, 11 JUNE 2025

Application for approval of the Blackmores Manufacturing Australia Maintenance Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Blackmores Manufacturing Australia Maintenance Enterprise Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement and the BOOT

1. The Agreement:

• Incorporates the terms of the National Employment Standards and the Manufacturing and Associated Industries and Occupations Award 2020 (the Metals Award) (clause 3);

• Prescribes wage increases of 5 percent on 1 July 2024, 4 percent on 1 July 2025 and 2 percent on 1 July 2026 (clause 14.1);

• Sets wage rates at a minimum of ten cents above the minimum hourly rate provided in the Metals Award [clause 14.2(a)]; and

• Provides that, where employees receive wages more favourable than those provided for in the Agreement, the entitlements prescribed by the Agreement (such as overtime, weekend work, penalty rates, and the wage increases in clause 14.1) “will be based upon the Employees above Agreement wage” [clause 14.2(b) and (c)].

1. The actual wages paid by the Applicant are set by contract, not by the Agreement. The effect of cl 14.2 is not to incorporate the contractual terms into the Agreement but to set an external measure against which overtime, weekend work, penalty rates and the wages increases are calculated.

1. It follows an employee seeking to establish their entitlements to overtime or penalty rates (for example) would be required to engage in a calculation against their contract wage.  An enterprise agreement which leaves the setting of actual wages to contracts of employment is highly unusual. I am however, satisfied the employees understood those terms when they voted for them.

1. It is trite the BOOT assessment is against the terms of an Agreement.  The payment of “over Agreement wages” under contract are not relevant.  The setting of the wages rates within the Agreement at such a narrow margin over the Metals Award (that is, ten cents over) invites scrutiny with respect to the application of the BOOT. I therefore asked the Applicant through its representative, Mr. Lee Buntman of AI Group, to make further submissions on the BOOT issues.

1. On 2 June 2025, Mr. Buntman provided further submissions which included a further undertaking from the Applicant dated 2 June 2025 that clause 14.2(a) would be read as if the wage rates prescribed in the Agreement were as follows:

1. Mr. Buntman submits the post-undertaking wage rates will be far superior to the Metals Award wages. I reproduce a table (based on a 38-hour week) from those further submissions.

1. The Agreement incorporates the Metals Award. Some of the benefits provided by the Agreement are substantial, including:

   ·   Pay outs of personal/carers leave on retirement or on termination other than by misconduct (clause 28.4);

   ·   An additional day of paid leave known as a “wellness day” (clause 31.1);

   ·   The provision of Accident Pay (clause 32); and

   ·   Superior payments for overtime (clause 25) and night shift (clause 26.6).

1. These benefits together with the new undertaking on the wage rates are superior to the Metals Award. I am satisfied the Agreement together with the undertakings meet the BOOT.

The Undertakings and disposition

1. A copy of the undertakings made on 15 May 2025 and 2 June 2025 are attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

1. Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all 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.

1. The Agreement is approved today 11 June 2025. It will operate from 18 June 2025 as required by section 54 of the Act. The nominal expiry date is 30 June 2027.

COMMISSIONER

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Annexure A