DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Friendly Society Medical Association Limited T/A National Pharmacies
(AG2019/2538)

NATIONAL PHARMACIES AND PROFESSIONALS AUSTRALIA PHARMACIES AGREEMENT 2019

Pharmaceutical industry
COMMISSIONER PLATT	ADELAIDE, 19 AUGUST 2019

Application for approval of the National Pharmacies and Professionals Australia Pharmacies Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the National Pharmacies and Professionals Australia Pharmacies Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Friendly Society Medical Association Limited T/A National Pharmacies. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 2 August 2019.

[3] On 7 August 2019, I conducted telephone conferences with the parties to seek clarification about aspects of the Agreement. The Applicant was represented by Mr Rod Reid (Employer Bargaining Representative).

[4] The Applicant has submitted an undertaking in the required form dated 14 August 2019. The undertaking deals with the following topics:

• Employees who are required by National Pharmacies to undertake training pursuant to clause 13 of the Agreement will paid for the time so engaged.

• Clause 14.2 of the Agreement will not operate.

• Clause 14.3 of the Agreement will apply to all part-time employees and the reference to the word “other” in the title will have no effect.

• Clause 14.3.2 of the Agreement has been amended so as to require any variation to the agreed arrangements to be in writing.

• A new clause 14.3.3 has been inserted into the Agreement.

• A new clause 18.2.8 has been inserted into the Agreement. The clause confirms that part-time employees who work in excess of the agreed number of hours will be paid overtime.

• Clause 15.2 of the Agreement has been amended to reduce the averaging period to two (2) weeks.

• A new clause 19.5 has been inserted which deals with time off in lieu (TOIL) at termination of employment.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views 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 “Association of Professional Engineers, Scientists and Managers, Australia (APESMA)”, 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 from the date of approval of the Agreement. The nominal expiry date is 13 May 2022.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of an enterprise agreement, specifically the National Pharmacies and Professionals Australia Pharmacies Agreement 2019. The applicants, Friendly Society Medical Association Limited trading as National Pharmacies, sought the commission's endorsement of this agreement, which was intended to regulate the terms and conditions of employment for employees under the agreement. The dispute centred on whether the proposed agreement met the legal criteria for approval, particularly in terms of its compliance with the Fair Work Act 2009 and the Fair Work Regulations 2009.

The primary legal issues the commission needed to address were whether the agreement had been made in accordance with the procedural requirements of the Act, whether it contained the mandated minimum terms and conditions, and whether it passed the ‘better off overall test’. The commission had to determine if the agreement had been fairly negotiated, if it provided for the minimum entitlements required by law, and if it ensured that employees were not worse off financially than under the applicable awards. Additionally, the commission had to consider whether the agreement contained any terms that were inconsistent with the objectives of the Fair Work Act.

After reviewing the submissions and evidence presented by both parties, the commission concluded that the agreement substantially complied with the legal requirements. The commission found that the agreement had been fairly negotiated and that it provided for all the mandated minimum terms and conditions. It was also determined that employees would not be worse off financially under the proposed agreement, thereby passing the better off overall test. Consequently, the commission approved the National Pharmacies and Professionals Australia Pharmacies Agreement 2019, finding it to be a lawful and fair agreement.

The final orders of the commission included the approval of the National Pharmacies and Professionals Australia Pharmacies Agreement 2019, effective from the date of the commission's decision. The agreement was to be registered and published in accordance with the Fair Work Act, ensuring that it was accessible to all relevant parties. The commission's decision was binding on the parties involved and provided clarity and certainty regarding the employment terms and conditions under the agreement.

Friendly Society Medical Association Limited T/A National Pharmacies

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established