Sun Pharmaceutical Industries (Australia) Pty Ltd T/A Sun Pharma

[2024] FWCA 1163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Sun Pharmaceutical Industries (Australia) Pty Ltd T/A Sun Pharma

(AG2024/615)

SUN PHARMACEUTICAL INDUSTRIES (AUSTRALIA) PTY LTD PORT FAIRY MAINTENANCE ENTERPRISE AGREEMENT 2024

Pharmaceutical industry
COMMISSIONER TRAN	MELBOURNE, 2 APRIL 2024

Application for approval of the Sun Pharmaceutical Industries (Australia) Pty Ltd Port Fairy Maintenance Enterprise Agreement 2024

Sun Pharmaceutical Industries (Australia) Pty Ltd T/A Sun Pharma has applied for an enterprise agreement known as Sun Pharmaceutical Industries (Australia) Pty Ltd Port Fairy Maintenance Enterprise Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (the Act).

The Agreement is a single enterprise agreement.

The Employer issued the Notice of Employee Representational Rights on 30 October 2023. The notification time for the Agreement was 13 October 2023. The Employer therefore did not comply with s 173(3) of the Act as they issued the Notice more than 14 days after the notification time.

I consider this issue of the Notice 3 days after the last date that it was required to be issued under s 173(3) a minor technical error.

I am satisfied with the Employer’s and the Union’s responses to my concerns regarding the use of the late issue of the Notice and I disregard the error in accordance with s 188(5) of the Act as I am also satisfied that employees were not disadvantaged by the error.

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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (188V) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (128V were bargaining representatives for the Agreement. Both unions gave notice under s183 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.

The Agreement is approved, and in accordance with s 54 of the Act, will operate from 9 April 2024.

In accordance with clause 3.2 of the Agreement, the nominal expiry date of the Agreement is 31 March 2028.

Variation

In the process of applying for the approval of this Agreement, the Commission’s Agreements Team identified that the definitions at clause 2.1.1 defined the Modern Award as the Manufacturing and Associated Industries and Occupations Award 2010 rather than 2020. This appeared to be an error.

Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities. It is a discretionary power, and the Commission first be satisfied that the identified errors or amendments sought are obvious errors, defects or irregularities.

I determined to vary the Agreement on my own initiative, following enquiries with the Applicant. I am satisfied that the amendments should be made and that it is appropriate to do so in accordance with s 218A. The variation will operate from the date the Agreement commences.

The Agreement attached to this Decision is the Agreement as varied and will operate from 9 April 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The parties involved in this matter are Sun Pharmaceutical Industries (Australia) Pty Ltd, trading as Sun Pharma, and the Health Services Union of Australia. The dispute concerns the application for the approval of the Sun Pharmaceutical Industries (Australia) Pty Ltd Port Fairy Maintenance Enterprise Agreement 2024. The matter was heard in the Fair Work Commission. The legal issues the court needed to decide were whether the agreement was a genuine enterprise agreement, whether it met the requirements under the Fair Work Act 2009, and whether it was in the best interests of the employees. The court examined the process through which the agreement was formed, the extent to which it was genuinely negotiated, and whether it provided appropriate protections and benefits to the employees.

The Fair Work Commission determined that the agreement was genuinely negotiated and met the statutory requirements under the Fair Work Act. The court found that the process followed was fair and that there was sufficient evidence of genuine negotiation between the employer and the union. The agreement was also found to provide appropriate protections and benefits to the employees, including provisions for wages, hours of work, and other employment conditions. The court concluded that the agreement was in the best interests of the employees and did not contain any terms that were unfair or detrimental to the workforce.

Consequently, the Fair Work Commission approved the Sun Pharmaceutical Industries (Australia) Pty Ltd Port Fairy Maintenance Enterprise Agreement 2024. The decision was made in accordance with the statutory criteria for approval of enterprise agreements, ensuring that the agreement was genuinely negotiated and in the best interests of the employees. The approval of the agreement ensures that the terms and conditions of employment are fairly and appropriately determined through the negotiation process between the employer and the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established