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austlii:cth/FWCA/2025/2822
General information, not legal advice.
FWCA
2025-08-22
Original judgment source is linked above.
s.185 - Enterprise agreement
Sun Pharmaceutical Industries (Australia) Pty Ltd
SUN PHARMACEUTICAL INDUSTRIES (AUSTRALIA) PTY LTD PORT FAIRY PRODUCTION ENTERPRISE AGREEMENT 2025
Application for approval of the Sun Pharmaceutical Industries (Australia) Pty Ltd Port Fairy Production Enterprise Agreement 2025
[1] An application has been made for approval of an enterprise agreement known as the Sun Pharmaceutical Industries (Australia) Pty Ltd Port Fairy Production Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sun Pharmaceutical Industries (Australia) Pty Ltd. The Agreement is a single enterprise agreement.
[2] I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
[3] I observe that clauses 31 and 35 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). Clause 31 of the Agreement concerns compassionate leave and is silent for still birth/ miscarriage as provided by s.104 (1)(b) and (c) of the Act. This is easily remedied by the NES precedence term in clause 6.5 of the Agreement. Clause 35 provides for public holiday substitution with a majority of employees inconsistent with s.115 of the Act. I sought submissions from the Applicant. The Applicant contends that substituting a public holiday with individual employees would be impracticable and potentially disadvantage some employees. The United Workers' Union advised they do not have any submissions in regard to the Applicant's response. Having regard to the Full Bench decision in the 4 yearly review of modern awards - Plain language re-drafting[1] the substitution of a public holiday by majority agreement is considered inconsistent and/ or detrimental in comparison to the entitlement provided by the NES. The Applicant has not provided an undertaking, but I am nevertheless satisfied that there is an effective NES precedence term in clause 6.5 of the Agreement. Clause 6.5 satisfies that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
[4] 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.
[5] The Agreement is approved and in accordance with s.54, will operate from 29 August 2025. The nominal expiry date of the Agreement is 29 June 2029.
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