Symbion Pty Ltd Summary

[2023] FWCA 359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Symbion Pty Ltd

(AG2022/5594)

SYMBION PTY LTD (VICTORIA) ENTERPRISE AGREEMENT 2022

Pharmaceutical industry
COMMISSIONER MIRABELLA	MELBOURNE, 7 FEBRUARY 2023

Application for approval of the Symbion Pty Ltd (Victoria) Enterprise Agreement 2022.

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

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied the undertaking will not cause financial detriment to any employee covered by the Agreement and the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The United Workers’ Union (UWU) as a bargaining representative for the Agreement gave notice under s.183 that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the UWU, I note the Agreement covers the UWU.

The Agreement was approved on 7 February 2023 and, in accordance with s.54, will operate from 1 June 2023. The nominal expiry date of the Agreement is 1 November 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Symbion Pty Ltd, an employer, applied to the Fair Work Commission for approval of an enterprise agreement. The applicant, which operates in the health services sector, sought approval for the Symbion Pty Ltd (Victoria) Enterprise Agreement 2022, which was to govern the employment of its workers. The primary dispute centred on whether the proposed agreement met the legal requirements for an enterprise agreement under the Fair Work Act 2009, specifically whether it was in the best interests of the employees and contained appropriate terms and conditions of employment.

The legal issues the court had to decide were whether the agreement complied with the mandatory provisions of the Fair Work Act, and if it was fair and reasonable for the employees. The court had to assess whether the agreement contained all the mandated minimum terms and conditions, and if it provided a fair and reasonable balance of rights and obligations for both the employer and the employees. The court also needed to determine if the agreement had been genuinely negotiated between the parties and if the process complied with the requirements of the Act.

In delivering its decision, the Fair Work Commission found that the Symbion Pty Ltd (Victoria) Enterprise Agreement 2022 was compliant with the relevant statutory requirements. The Commission noted that the agreement contained all the mandated minimum terms and conditions, and that the negotiation process had been genuine and in line with the Fair Work Act. The Commission further found that the proposed agreement provided a fair and reasonable balance of rights and obligations for both parties, and was in the best interests of the employees. Consequently, the Commission approved the enterprise agreement, recognising it as a valid and enforceable contract between the parties. The court directed that the agreement be registered and published as required under the Fair Work Act.

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