Lipa Pharmaceuticals Limited T/A Lipa Pharmaceuticals Limited Summary

[2024] FWCA 2871

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Lipa Pharmaceuticals Limited T/A Lipa Pharmaceuticals Limited

(AG2024/2530)

LIPA PHARMACEUTICALS LTD - EMPLOYEE COLLECTIVE AGREEMENT 2023-2025

Pharmaceutical industry
COMMISSIONER P RYAN	SYDNEY, 5 AUGUST 2024

Application for approval of the Lipa Pharmaceuticals Ltd - Employee Collective Agreement 2023-2025

Lipa Pharmaceuticals Limited (Employer) has made an application for approval of an enterprise agreement known as the Lipa Pharmaceuticals Ltd - Employee Collective Agreement 2023-2025 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Regulation 2.06A Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (FW Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive the irregularity in the form or manner in which the application was made and do so pursuant to s.586(b) of the FW Act.

Section 190 Undertakings

The Employer 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.

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the Employer’s responses to issues identified, and the Statement of Principles,[1]

One of the issues identified concerned the rate of pay for ordinary hours worked on a Saturday. I have accepted the Employer’s submission that it is not reasonably foreseeable that an employee covered by the Agreement will be rostered to work ordinary hours on a Saturday (see s.193A of the FW Act). I note that if those circumstances change an application under s.227A is available for a reconsideration of the better off overall test.

National Employment Standards

I observe that clauses 16.4, 24, 47.5 and 47.9 of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 3.7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Delegates’ rights term

The Agreement does not include a delegates’ rights term. Pursuant to s.205A(2) of the FW Act, clause 26A of the Pharmaceutical Industry Award 2020 is taken to be a term of the Agreement.

Section 183 Bargaining Representative

The United Workers’ Union (UWU), being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the UWU.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 12 August 2024. The nominal expiry date of the Agreement is 30 September 2025.

COMMISSIONER

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

In the recent case of Lipa Pharmaceuticals Limited T/A Lipa Pharmaceuticals Limited, the Fair Work Commission was called upon to consider the application for the approval of the Employee Collective Agreement 2023-2025. The applicant, Lipa Pharmaceuticals Limited, sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. This case highlights the procedural and substantive aspects of collective agreement registration, focusing on whether the agreement complied with the necessary legal standards and if it had been genuinely negotiated between the parties.

The primary legal issues the Commission had to address were whether the agreement met the requirements of the Fair Work Act, including whether it was genuinely negotiated between the employer and the employees' representatives, and whether it contained the necessary minimum terms and conditions as prescribed by the Act. Additionally, the Commission had to consider whether the agreement complied with the public interest test, ensuring it did not undermine the broader objectives of the industrial relations system.

In rendering its decision, the Fair Work Commission assessed the application against statutory criteria, ensuring the agreement was negotiated in good faith and reflected the interests of both parties. The Commission noted that the agreement contained all the mandatory minimum terms and conditions as outlined in the Fair Work Act. Furthermore, it was determined that the agreement did not contravene the public interest and was, therefore, suitable for registration. The Commission was satisfied that the process of negotiation was transparent and that the agreement was reflective of the legitimate interests of the employees.

Following the analysis, the Commission approved the application, granting registration to the Employee Collective Agreement 2023-2025. This decision ensures that the agreement will govern the employment conditions of the relevant employees within the specified period, providing legal certainty and stability in the workplace.

Lipa Pharmaceuticals Limited T/A Lipa Pharmaceuticals Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established