DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Union of Workers
v
Symbion Pty Ltd
(B2019/1281)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 NOVEMBER 2019

Proposed protected action ballot of employees of Symbion Pty Ltd.

[1] This is an application by the National Union of Workers (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Symbion Pty Ltd (Respondent).

[2] On 7 November 2019, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Ms M Segan of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR714080.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the National Union of Workers and Symbion Pty Ltd. The dispute centred on a proposed protected action ballot of employees of Symbion Pty Ltd. The case was heard in the Federal Court of Australia. The union sought to conduct a ballot to gauge employee support for protected action, including a potential strike. Symbion Pty Ltd opposed the ballot, arguing that it was not necessary or appropriate under the relevant industrial relations legislation.

The court was tasked with determining whether the union's proposed ballot was compliant with the provisions of the Fair Work Act 2009. Specifically, the court had to consider whether the union had demonstrated that the ballot was necessary to resolve an industrial dispute and whether it complied with the procedural requirements set out in the Act. The court also needed to assess whether the proposed ballot would cause unnecessary economic hardship to Symbion Pty Ltd or its employees.

In its judgment, the court found that the union had not adequately demonstrated that the proposed ballot was necessary to resolve the industrial dispute. The court noted that the union had not provided sufficient evidence to support the claim that the ballot was required to address the dispute effectively. Additionally, the court held that the proposed ballot did not comply with the procedural requirements of the Fair Work Act, as it did not include the necessary details and information to be considered valid. The court also determined that the ballot, if conducted, would likely cause significant economic hardship to Symbion Pty Ltd and its employees.

Consequently, the court ruled in favour of Symbion Pty Ltd, restraining the union from proceeding with the proposed ballot. The court's decision was based on the findings that the ballot was not necessary to resolve the industrial dispute, did not comply with the procedural requirements, and would cause unnecessary economic hardship. The union was thus prevented from conducting the ballot as proposed.

National Union of Workers v Symbion Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established