Application by Symbion Pty Ltd Summary

[2022] FWCA 3465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Symbion Pty Ltd

(AG2022/3837)

Pharmaceutical industry
COMMISSIONER HUNT	BRISBANE, 7 OCTOBER 2022

Application for approval of the Symbion (Western Australia) Enterprise Agreement 2022

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

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Shop, Distributive and Allied Employees Association (SDA) and United Workers Union (UWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views.

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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I indicated to the Employer my view that the Agreement’s existing flexibility term did not meet the requirements of s.203 of the Act, and that in the event of approval, the model flexibility term will be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 to the Fair Work Regulations 2009 is attached to the Agreement at Annexure B and taken to be a term of it.

I have taken into consideration the material filed in the Commission. 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 Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The SDA and UWU being bargaining representatives for the Agreement have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the SDA and UWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 October 2022. The nominal expiry date of the Agreement is 30 September 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the case of Application by Symbion Pty Ltd, Symbion Pty Ltd, an employer in the pharmaceutical industry, applied to the Fair Work Commission for approval of a single-enterprise agreement, the Symbion (Western Australia) Enterprise Agreement 2022. The application was made under section 185 of the Fair Work Act 2009. The Fair Work Commission raised concerns about the Agreement and Symbion Pty Ltd provided written undertakings to address these concerns. The Commission sought the views of the Shop, Distributive and Allied Employees Association and United Workers Union regarding the undertakings and was satisfied that they would not cause financial detriment to any employee or result in substantial changes to the Agreement.

The legal issues before the Commission were whether the Agreement met the requirements of sections 186, 187, 188 and 190 of the Act, and whether the flexibility term in the Agreement met the requirements of section 203 of the Act. The Commission was also required to determine whether the group of employees covered by the Agreement was fairly chosen. The Commission was satisfied that each of the requirements of the relevant sections of the Act had been met, and that the group of employees was fairly chosen. The Commission also noted that the Agreement covers the bargaining representatives for the Agreement, the Shop, Distributive and Allied Employees Association and United Workers Union.

The Commission accepted the written undertakings provided by Symbion Pty Ltd and took them to be a term of the Agreement. The Commission also inserted the model flexibility term prescribed by Schedule 2.2 to the Fair Work Regulations 2009 into the Agreement. The Commission approved the Agreement, which will operate from 14 October 2022 and have a nominal expiry date of 30 September 2025. The Commission's decision was based on the material filed in the Commission and the satisfaction that the requirements of the relevant sections of the Act had been met.

Application by Symbion Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established