Symbion Pty Ltd Trading AS Symbion

[2025] FWCA 1613

[2025] FWCA 1613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Symbion Pty Ltd Trading AS Symbion

(AG2025/928)

SYMBION PTY LTD (TASMANIA) ENTERPRISE AGREEMENT 2024

Pharmaceutical industry
COMMISSIONER CONNOLLY	MELBOURNE, 19 MAY 2025

Application for approval of the Symbion Pty Ltd (Tasmania) Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Symbion Pty Ltd (Tasmania) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Symbion Pty Ltd trading as Symbion (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 11 April 2025.

1. The notification time for the Agreement under s.173(2) was 15 November 2024 and the Agreement was made on 27 March 2025. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

1. On 30 April 2025, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There are four National Employment Standards (NES) issues that require comment:

·   Notice of Termination: Clause 15.1(e) of the Agreement provides that the period of notice in clause 15.1(a) shall not apply in the case of dismissal for conduct that justifies instant dismissal, including neglect of duty. This appears to be inconsistent with clause 123 of the Act which provides situations where the notice of termination shall not be required.

·   Personal leave – notification: Clause 27.2 of the Agreement states that an employee on sick leave, must advise their supervisor of their inability to attend work at least one hour before the commencement of normal start time or as soon as possible thereafter. This appears to be inconsistent with s.107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

·   Bereavement Leave: Clause 28 of the Agreement provides bereavement leave when a member of the employee’s immediate family or household dies, however is silent in relation to compassionate leave for stillbirths and miscarriages as is provided for by s.104(1)(b) and (c) of the Act.

·   Public holidays: Clause 35 of the Agreement indicates that an employee may be requested to work on a public holiday if this request is reasonable. The clause does not specify that where the request is made, the employee may reasonably refuse the request as provided by s.114(2) and (3) of the Act.

1. Clause 5.2 of the Agreement acts as an effective NES precedence clause, in that it states that this Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 9 May 2025, and a copy is attached in Annexure A. No bargaining representatives were appointed.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Pharmaceutical Industry Award 2020 is taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. 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 30 November 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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