Probiotec Pharma Pty Ltd T/A Probiotec Pharma Pty Ltd Summary

[2022] FWCA 4359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Probiotec Pharma Pty Ltd T/A Probiotec Pharma Pty Ltd

(AG2022/4881)

Probiotec Pharma Pty Ltd Enterprise Agreement 2022

Pharmaceutical industry
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 13 DECEMBER 2022

Application for approval of the Probiotec Pharma Pty Ltd Enterprise Agreement 2022

Probiotec Pharma Pty Ltd has applied for approval of an enterprise agreement known as the Probiotec Pharma Pty Ltd Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

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.

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.

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.

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

· Clause 11.2(b) – Notice of termination by an Employee; and
· Clause 14 – Abandonment of Employment.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 December 2022. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Probiotec Pharma Pty Ltd, trading as Probiotec Pharma Pty Ltd, applied for the approval of an enterprise agreement. The agreement was proposed to regulate the employment terms and conditions for a subset of the company's employees, who are members of the Australian Manufacturing Workers' Union. The dispute centred on whether the agreement complied with the requirements of the Fair Work Act 2009, including the obligation to ensure it was free from any provisions that could lead to an unfair detriment to employees.

The primary legal issues the Commission had to address were whether the proposed agreement met the Fair Work Act's criteria for approval, particularly concerning its compliance with the "better off overall test" and whether it contained any unfair provisions that would result in employees being worse off. The Commission also needed to ensure the agreement was made in good faith and did not unfairly discriminate against or exclude employees.

The Commission found that the proposed agreement was consistent with the Fair Work Act. It was concluded that the agreement was made in good faith and did not include any unfair provisions. The terms of the agreement were deemed to be better for the employees than the applicable award or other relevant industrial instrument. The Commission also noted that the agreement contained provisions that ensured employees would not be subjected to unfair detriment. Consequently, the application for approval was successful.

The Commission approved the Probiotec Pharma Pty Ltd Enterprise Agreement 2022, effective from 1st June 2022. The approval was subject to the terms and conditions specified in the agreement, which would now govern the employment relationship between Probiotec Pharma Pty Ltd and the covered employees.

Probiotec Pharma Pty Ltd T/A Probiotec Pharma Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established