Hospira Australia Pty Ltd T/A Pfzier Melbourne

[2019] FWCA 3337

[2019] FWCA 3337

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hospira Australia Pty Ltd T/A Pfzier Melbourne
(AG2018/7392)

PFIZER MELBOURNE (MAINTENANCE & LABORATORY) AMWU/ CEPU ENTERPRISE AGREEMENT 2018

Pharmaceutical industry
COMMISSIONER LEE	MELBOURNE, 14 MAY 2019

Application for approval of the Pfizer Melbourne (Maintenance & Laboratory) AMWU/ CEPU Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Pfizer Melbourne (Maintenance & Laboratory) AMWU/ CEPU Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hospira Australia Pty Ltd T/A Pfzier Melbourne (the Applicant). The Agreement is a single enterprise agreement.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[3] I note that the employer’s statutory declaration in support of the application for approval of an enterprise agreement (F17) indicates that employees were notified of the details of the vote by email on 12 December 2018. I note that the vote commenced less than seven clear days later, on 19 December 2018. Also relevant is the fact that the F17 states that 46 out of 49 employees that will be covered by the Agreement who cast a valid vote, voted to approve the Agreement. In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd, 1 the Full Bench confirmed that an employer must take all reasonable steps to notify relevant employees of the time, place and method of the vote at least seven clear days before the commencement of the vote, pursuant to s.180 (3) of the Act. Although it does not appear that employees were notified of the time, place and method of the vote seven clear days before the commencement of the vote, I refer to s.188 (2) of the Act and am satisfied that this error constitutes a minor procedural error, and that employees covered by this Agreement are not likely to be disadvantaged as a result of the error.2

[4] I had a concern about whether the employees covered by the Agreement were fairly chosen in accordance with s. 186 (3) of the Act. The concern was that clause 4 of the Agreement excludes certain employees from coverage, despite the excluded employees being referenced as having positions relative to the classifications in the Agreement. It was not clear in the circumstances how I could be satisfied that the group of employees covered by the Agreement were fairly chosen. The Applicant has since provided an undertaking that has the effect of clarifying the operation of clause 4 (Coverage of Agreement), such that I am now satisfied that the employees covered by the Agreement are fairly chosen. I also note that the two Union Bargaining Representatives agree with the undertaking proffered and support approval of the Agreement.

[5] As referred to above, the Applicant 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 change to the Agreement.

[6] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 20.12 – Employees exempted

•  Clause 28.2 – Personal Leave

However, noting clause 2 of the undertakings provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 May 2019. The nominal expiry date of the Agreement is 1 October 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE503434  PR708306>

Annexure A

 1   [2018] FWCFB 2732.

 2   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.