Symbion Pty Ltd

[2020] FWCA 516

[2020] FWCA 516

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Symbion Pty Ltd
(AG2019/5001)

SYMBION PTY LTD (NSW) ENTERPRISE AGREEMENT 2019

Pharmaceutical industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 13 FEBRUARY 2020

Application for approval of the Symbion Pty Ltd (NSW) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement to be known as the Symbion Pty Ltd (NSW) Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Symbion Pty Ltd (Employer). The Agreement is a single enterprise agreement.

[2] The United Workers’ Union (UWU), being bargaining representatives for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The Employer has provided a written undertaking dated 28 January 2020. This undertaking is attached at Annexure A to this decision and becomes a term of the Agreement. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Pharmaceutical Industry Award 2010 Award 2010 or Clerks—Private Sector Award 2010), and that the undertaking will not result in substantial changes to the Agreement.

[5] I note that the UWU opposed the inclusion of the undertaking referred to above. I reject UWU’s opposition as to the inclusion of the undertaking on the basis that:

a) it is the role of the Commission to be satisfied that a proposed enterprise agreement meets the requirements for approval under the Act;

b) the dispute resolution procedure in the Agreement (but for the undertaking) does not meet the requirements of s.186(6)(b) of the Act. More specifically, the dispute resolution procedure does not enable representation of employees by a representative of their choice (for example, a union, or a legal representative, or a paid agent). The Applicant has proffered an undertaking that resolves this issue;

c) in making their opposition to the inclusion of the undertaking, the UWU have not referred to any legislative provision, or case authority, in support of their opposition. Further, the UWU has not identified any prejudice to relevant employees (or itself) arising from the undertaking being accepted by the Commission (and becoming a term of the proposed enterprise agreement); and

d) I have considered the views of UWU (as bargaining representative). However, I have determined to accept the Applicant’s undertaking pursuant to s.190 of the Act.

[6] Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[7] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 February 2020. The nominal expiry date of the Agreement is 31 March 2023.

DEPUTY PRESIDENT

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Annexure A