Sun Pharmaceutical Industries (Australia) Pty Ltd

[2023] FWCA 3084

[2023] FWCA 3084

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sun Pharmaceutical Industries (Australia) Pty Ltd

(AG2023/3180)

SUN PHARMACEUTICAL INDUSTRIES (AUSTRALIA) PTY LTD LATROBE SITE ENTERPRISE AGREEMENT 2023

Pharmaceutical industry
COMMISSIONER MIRABELLA	MELBOURNE, 27 SEPTEMBER 2023

Application for approval of the Sun Pharmaceutical Industries (Australia) Pty Ltd Latrobe Site Enterprise Agreement 2023.

1. Sun Pharmaceutical Industries (Australia) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Sun Pharmaceutical Industries (Australia) Pty Ltd Latrobe Site Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. On 21 September 2023, the Employer advised that the notification time for the Agreement was 27 March 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 28.2 of the Form F17B provides that the Agreement was made on 30 August 2023.

1. The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

1. Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. The Employer did not take all reasonable steps to ensure that copies of the incorporated Manufacturing and Associated Industries and Occupations Award 2020 and Electrical, Electronic and Communications Contracting Award 2010 were given to employees during the access period for the Agreement or that employees had access to these awards throughout the access period. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.180(2). I am 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 to within the meaning of s.188(2) of the FW Act.

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

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

·   Clauses 21.1 and 21.2 – Compassionate leave

·   Clause 23.9 – Carer’s leave

·   Clauses 23.11.2 and 23.11.4 – Personal leave (evidence)

1. However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The United Workers’ Union, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 27 September 2023 and, in accordance with s.54, will operate from 4 October 2023. The nominal expiry date of the Agreement is 20 July 2026.

COMMISSIONER

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Annexure A