Symbion Pty Ltd
[2025] FWCA 298
•24 JANUARY 2025
| [2025] FWCA 298 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Symbion Pty Ltd
(AG2024/5078)
SYMBION PTY LTD (QUEENSLAND) ENTERPRISE AGREEMENT 2024
| Pharmaceutical wholesaling industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 24 JANUARY 2025 |
Application for approval of the Symbion Pty Ltd (Queensland) Enterprise Agreement 2024
Introduction
Symbion Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Symbion Pty Ltd (Queensland) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by either the Pharmaceutical Industry Award 2020 (Pharmaceutical Award) or the Clerks – Private Sector Award 2020 (Clerks Award).
Notice of Employee Representational Rights (NERR)
The F17 Declaration stated that the date of notification was 12 July 2024 and that the NERR was provided on 22 May 2024. This may be inconsistent with s.173 of the Act as the NERR was provided to employees prior to the notification date. The Employer provided submissions that the F17 contained a typographical error as the notification date was on 12 May 2024.
In the circumstances, I have allowed a correction to the F17 Declaration in relation to the notification date pursuant to s.586(a) of the Act.
Compassionate Leave
Clause 28 of the Agreement provides for compassionate leave, however, it omits the entitlement to leave where an employee, their partner or spouse has a miscarriage or gives birth to a stillborn child as provided in s.104(1)(b) and (c) of the Act.
The Employer provided an undertaking to address this issue.
Public Holidays
Clause 32.4 of the Agreement states that by agreement between the employer and the majority of employees in a workplace, an alternative day may be taken as the public holiday instead of the day that would otherwise be the public holiday. This appears to be inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.
The Employer provided an undertaking to address this issue.
Withholding Monies of Termination
Clause 40.2(b) of the Agreement provides that where an employee fails to give notice, the company shall have the right to withhold monies due to the employee with a maximum amount equal to the ordinary time rate of pay for the period of notice. This clause does not limit the source of monies deducted, and therefore may restrict an employee’s entitlement to payment of National Employment Standards (NES) entitlements upon the termination of employment. Furthermore, this approach is inconsistent with the Pharmaceutical Award and the Clerks Award, which limit such deductions to a maximum of one week's wages.
The Employer provided an undertaking to address this issue.
Saturday Work
Clause 19.2 of the Agreement states that ordinary hours may be worked from Monday to Saturday. This is less favourable than clause 13.2(d) of the Pharmaceutical Industry Award, which restricts ordinary hours to Monday to Friday, requiring Saturday work to be paid at overtime rates of 150% for the first two hours and 200% thereafter. Under the Agreement, employees working ordinary hours on Saturday receive time and a half, as outlined in clause 19.2(a). This reduction in benefits may be a concern for casual storeworkers who regularly work ordinary hours on Saturdays or whose work is primarily scheduled on Saturdays.
The Employer provided an undertaking to address this issue.
Casual Minimum Engagement
Clause 6 of the Agreement provides that casual employees are paid for a minimum of 2 hours work on any one engagement whereas clause 11.4 of the Clerks Award provides a minimum of 3 hours work on each engagement. This difference may raise a BOOT concern for casual employees who frequently work 2-hour shifts with limited additional hours or work exclusively in this manner.
The Employer provided an undertaking to address this issue.
Section 190 Undertakings
The employer provided written undertakings. A copy of the undertakings is attached in Appendix 4. 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. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
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.
Section 183 Bargaining Representatives
The United Workers Union (UWU) 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 UWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 January 2025. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
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