Symbion Pty Ltd T/A Symbion

[2021] FWCA 3514

[2021] FWCA 3514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Symbion Pty Ltd T/A Symbion
(AG2021/5536)

SYMBION PTY LTD (UNDERDALE) ENTERPRISE AGREEMENT 2021

Pharmaceutical industry
COMMISSIONER PLATT	ADELAIDE, 18 JUNE 2021

Application for approval of the Symbion Pty Ltd (Underdale) Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Symbion Pty Ltd (Underdale) Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Symbion Pty Ltd T/A Symbion (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 15 June 2021 and was determined on the papers.

[3] The Applicant has submitted an undertaking in the required form dated 16 June 2021. The undertaking deals with the following topics:

•  If an employee who has elected to take time off in lieu (TOIL) does not take that leave, for whatever reason, payment for time accrued at overtime rates shall be made at the expiry of the two-week period. If on the termination of the employee’s employment, the TOIL has not been taken, the company will pay the employee for the overtime at the overtime rate applicable to the overtime when worked.

•  In respect of clause 10 of the Agreement, no part-time employee will be required to work more than three hours beyond their rostered shift before overtime rates as set out in clause 23.1 apply.

[4] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. It is noted that one of the employee bargaining representatives expressed a view that the undertaking concerning part-time employees in its current form would result in part-time employees who are contracted for 4 hours per day (20 hours per week) not being better off overall when compared to the Pharmaceutical Industry Award 2020 (the Award). The Agreement, with undertakings, was further reviewed against the Award as a result of the employee bargaining representatives’ submissions. I am satisfied that all employees covered by the Agreement will be better off overall when compared to the Award.

[5] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[6] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[7] 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) of the Act I note that the Agreement covers this organisation.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 December 2023.

COMMISSIONER

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