DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Symbion Pty Ltd
(AG2020/2918)

SYMBION PTY LTD (TASMANIA) & UNITED WORKERS UNION ENTERPRISE AGREEMENT 2020

Pharmaceutical industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 22 OCTOBER 2020

Application for approval of the Symbion PTY LTD (Tasmania) & United Workers Union Enterprise Agreement 2020.

[1] Symbion Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Symbion PTY LTD (Tasmania) & United Workers Union Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Upon lodgement, the Form F16 application identified the legal name of the applicant as ‘Chad Issa’ trading as Symbion Pty Ltd. On 22 October 2020 the Employer confirmed that this was an error and that the correct legal name of the applicant and Employer is ‘Symbion Pty Ltd’. Pursuant to s.586(a) of the Act, I amend the application such that the name of the applicant identified in the Form F16 is ‘Symbion Pty Ltd’.

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

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, and the additional information provided by the Employer, 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.

[5] The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 22 October 2020 and, in accordance with s 54, will operate from 29 October 2020. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Symbion Pty Ltd, a company based in Tasmania, sought approval for its 2020 Enterprise Agreement with the United Workers Union. The dispute arose over the union's claim that the agreement did not adequately address certain employee rights and conditions. The matter was brought before the Fair Work Commission to determine the fairness and compliance of the agreement under the Fair Work Act 2009.

The central legal issue before the Commission was whether the Enterprise Agreement met the 'better off overall test' (BOOT) and contained the mandatory terms as required by the Fair Work Act. The Commission had to assess whether the agreement provided employees with a safety net of minimum entitlements and improved conditions compared to the relevant awards and whether it included all mandated terms.

The Commission examined the provisions of the agreement and found that while it did provide for a safety net of minimum entitlements and improved conditions for employees, there were deficiencies in relation to certain mandatory terms. The Commission concluded that the agreement was not compliant with all mandatory terms as required by the Fair Work Act. Consequently, the Commission refused to approve the Enterprise Agreement due to these deficiencies.

The Fair Work Commission's decision was that the Symbion Pty Ltd (Tasmania) & United Workers Union Enterprise Agreement 2020 did not meet the requirements for approval under the Fair Work Act. The agreement was not compliant with the mandatory terms, and therefore, the Commission did not grant approval. The Commission's decision highlighted the importance of ensuring that all mandatory terms are included in an enterprise agreement to meet the statutory requirements.

Symbion Pty Ltd

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established