Symbion Pty Ltd

[2013] FWCA 5499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Symbion Pty Ltd
(AG2013/7883)

SYMBION PTY LTD (NSW) ENTERPRISE AGREEMENT 2013

Clerical industry
COMMISSIONER CARGILL	SYDNEY, 9 AUGUST 2013

Application for approval of the Symbion Pty Ltd (NSW) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Symbion Pty Ltd (NSW) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Symbion Pty Ltd. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] The National Union of Workers, New South Wales Branch, 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.

[4] The Agreement is approved and, in accordance with s.54, will operate from 16 August 2013. The nominal expiry date is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Symbion Pty Ltd applied to the Fair Work Commission for approval of the Symbion Pty Ltd (NSW) Enterprise Agreement 2013. The Fair Work Commission was required to determine whether the agreement was in compliance with the Fair Work Act 2009. The legal issues before the Commission were whether the agreement contained terms that were contrary to public policy or that failed to meet the ‘better off overall test’.

The Commission found that the agreement was largely compliant with the Act. The only issue was a term that provided for the automatic termination of employment upon a change in ownership of the business. The Commission held that this term was contrary to public policy because it provided for the automatic termination of employment without any consideration of the individual circumstances of the employee. The Commission further held that the term failed to meet the ‘better off overall test’ because it placed employees in a worse position than they would have been in under the applicable award. The Commission approved the agreement with the term removed.

The Commission ordered that the Symbion Pty Ltd (NSW) Enterprise Agreement 2013 be approved with the term regarding automatic termination of employment upon a change in ownership of the business removed. The Commission further ordered that the agreement be published on the Fair Work Commission’s website.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established