Ensign Laboratories Pty Ltd; United Workers' Union

[2020] FWCA 1132

[2020] FWCA 1132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ensign Laboratories Pty Ltd; United Workers' Union
(AG2019/4504)

ENSIGN LABORATORIES AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2019-2022

Pharmaceutical industry
COMMISSIONER YILMAZ	MELBOURNE, 3 MARCH 2020

Application for approval of the Ensign Laboratories and United Workers Union Enterprise Agreement 2019-2022.

[1] An application has been made for approval of an enterprise agreement known as the Ensign Laboratories and United Workers Union Enterprise Agreement 2019-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ensign Laboratories Pty Ltd; United Workers’ Union. The Agreement is a single enterprise agreement.

[2] The employer did not provide employees with a copy of the incorporated material referred to at clause 7 of the Agreement in accordance with s.180(2) of the Act. Clause 7 of the Agreement states that a party to the agreement shall comply with the terms of the National Training Wage Interim Award 1994, as varied and that the agreement shall be read in conjunction with the Pharmaceutical Industry Award 2010 (the Award) but shall take precedence to the extent of any inconsistency.

[3] The employer submits its non-compliance with s.180(2) is a minor procedural error and employees did not experience any disadvantage as a result, as many of them are long term employees who have been covered by previous enterprise agreements with substantially the same provisions and are familiar with the enterprise agreement bargaining process. The United Workers’ Union supported the employer’s submissions and also submits that employees were not likely disadvantaged by the error. In the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). I am further satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[4] The employer has provided written undertakings. A copy of the undertakings is attached in 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. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] 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) I note that the Agreement covers the organisation.

[7] The Agreement is approved and in accordance with s.54, will operate from 10 March 2020. The nominal expiry date of the Agreement is 30 September 2022.

COMMISSIONER

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Annexure A