United Workers Union v Symbion Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

United Workers Union v Symbion Pty Ltd [2025] FedCFamC2G 997

File number(s): SYG 1362 of 2022
Judgment of: JUDGE CAMERON
Date of judgment: 30 June 2025
Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – construction of enterprise agreements – relevant principles.
Legislation:

Fair Work Act 2009 (Cth) s.52

Fair Work (Registered Organisations) Act 2009 (Cth)
Cases cited:

Avard v Australian Capital Territory [2025] FCAFC 72

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165

Dunford v Allen Taylor and Co Ltd (1990) 34 IR 423
Division: Fair Work
Number of paragraphs: 59
Date of hearing: 9 April 2024
Place: Sydney
Solicitor for the Applicant: Mr S Howe (United Workers Union)
Counsel for the Respondent: Mr J Darams SC
Solicitor for the Applicant: Pinsent Masons

ORDERS

SYG 1362 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

UNITED WORKERS' UNION

Applicant
AND:

SYMBION PTY LTD

Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

30 JUNE 2025

THE COURT ORDERS THAT:

1.The first question posed for separate determination be answered “Yes”.

2.The second question posed for separate determination be answered “Day worker”.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CAMERON

INTRODUCTION

  1. The applicant, the United Workers’ Union (UWU), is an employee organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and commenced this proceeding on 15 September 2022. It filed an amended statement of claim (ASOC) on 10 February 2023.  The UWU is entitled to bring this application on behalf of a number of its members (Members) who were employed at various times by the respondent, Symbion Pty Ltd (Symbion), which also trades as Onelink.  Symbion is a national wholesaler of healthcare services and products which operates warehouses across Australia including at the Yennora Distribution Centre (Yennora).  It is not necessary to identify the Members other than to record that it was agreed that Rhonda Cunningham and Richard Valeri were numbered among them, had become employees of Symbion at Yennora in mid-2016 and were employed there still as at the commencement of this proceeding.  They were proffered as representative of the Members.  

  2. Relevantly, the following Enterprise Agreements (collectively Enterprise Agreements) were in force during the Members’ employment at Symbion and applied to the present parties pursuant to s.52 of the Fair Work Act 2009 (Cth) (FW Act):  

    (a)the Onelink and National Union of Workers Enterprise Agreement 2015 (2015 Agreement

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Details
Case
[2025] FedCFamC2G 997
Decision Date

CaseChat Overview and Summary

The United Workers Union (UWU) filed an application seeking an order interpreting the meaning of certain provisions in Enterprise Agreements between Symbion Pty Ltd and its employees. The primary dispute centred on whether certain employees were eligible for early morning shift allowances under the agreements. The Fair Work Commission referred the matter to the Federal Court of Australia for determination of the questions of law involved. The court was tasked with interpreting the terms of the Enterprise Agreements to determine the eligibility criteria for early morning shift allowances and whether the relevant employees qualified for such allowances.

The central legal issues before the court were whether employees who were initially classified as day workers were eligible for early morning shift allowances under the Enterprise Agreements and whether the employees in question had to be shift workers to be eligible for such allowances. The UWU argued that the only eligibility requirement was that the employee work within the prescribed hours of an early morning shift. Symbion, on the other hand, contended that to be eligible for the allowance, the employees must have been shift workers from the outset.

The court applied a purposive approach to interpreting the Enterprise Agreements, considering the ordinary meaning of the words, the industrial context, and the purpose of the agreements. The court found that the evidence demonstrated that the employees in question were employed as day workers and their hours only changed much later, at which point they were treated as early morning shift workers. The court concluded that Symbion’s explanation of the employees' situation was consistent with the terms of the Enterprise Agreements, which provided for ordinary hours to be altered by up to an hour, resulting in overtime pay for work before the altered ordinary hours.

Based on the findings, the court answered the first question in the affirmative, indicating that an employee did not have to be a shiftworker to be eligible for the shift allowance. The court also answered the second question by determining that the employees were classified as day workers. The court's decision hinged on the specific language of the Enterprise Agreements and the context in which they were employed. The final orders were made in accordance with the court's interpretation of the agreements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The UWU filed the affidavit of Stephanie Roger, a UWU Industrial Officer, which annexed copies of the Enterprise Agreements and a copy of the 2010 Award as it was at the time the 2015 Enterprise Agreement was approved, obtained from the website of the Fair Work Ombudsman. Also annexed to Ms Roger’s affidavit was pre-litigation correspondence between a UWU organiser and Symbion in respect of the alleged breaches of the Enterprise Agreements. RESPONDENT’S EVIDENCESimon Bunde Simon Bunde was the Executive General Manager - Strategic Operations, ESG & Innovation of EAHPL Pty Ltd a subsidiary, together with Symbion, of EBOS Group Limited. Mr Bunde was responsible for the Onelink operation at Yennora and he signed the Enterprise Agreements. Mr Bunde deposed that most tasks at Yennora were performed during the day, without the need for employees to work overnight or on weekends on a regular basis. He said:The Yennora Site has never operated under a shift roster. A shift roster has never been required to be issued, as the employees at the Yennora Site work consistent and predictable hours. When an employee finishes their hours of work, there is typically not any handover to another employee. Each employee would finish their work and their tasks, and would not hand them over to another employee. He described the start times of the various teams working at Yennora, almost all of whom started no earlier than 6:00am. The exception was a small group of experienced and responsible employees who started earlier. Mr Bunde responded to Ms Cunningham’s first affidavit deposing that, based on his analysis of pay records, the times she was asked by Mr Gudgeon to start work at 4:00am or 5:00 am were occasions of early morning overtime, which were paid as such, and that after that overtime she went on to work her normal hours for that day. Ms Cunningham’s hours remained 6:00am to 2:30pm despite her occasional early overtime work. Consistently with a change in her normal hours to 5:00am to 1:30pm in September 2019, Ms Cunningham began receiving early morning shift allowance at that point and continued to receive it. She was also paid overtime for any additional hours worked. Mr Bunde also responded to Mr Valeri’s affidavit saying that in 2016 Mr Valeri’s hours had been 6:00am to 2:30pm and that he had been paid overtime rates for work before 6:00am. He further said that Mr Valeri’s chronology of events was incorrect in that his 6:00am to 2:30 pm work hours did not change to 5:00am to 1:30pm until about 15 June 2018, from which point he was paid an early morning shift allowance. SUBMISSIONSApplicantFirst question UWU submitted that the first question should be answered “No”, an employee did not have to be a shiftworker to be eligible for the shift allowance under cl.28.4 of the Enterprise Agreements, and that the only eligibility requirement for an early morning shift allowance was that an employee work within the prescribed hours of an early morning shift.

Decision

Reasons for decision

These matters persuade me that Ms Cunningham and Mr Valeri were both employed as day workers and that it was not until much later that their hours changed such that they were treated, apparently without admission, as early morning shift workers. CONCLUSION The answer to the first question is “Yes” and the answer to the second question is “Day worker”.

Ratio Decidendi

Legal Principle Established

Symbion’s explanation of Ms Cunningham and Mr Valeri’s situation was that cls.25.2(a) and (b) of the Enterprise Agreements provided for ordinary hours to be altered by up to an hour such that it could be agreed that prior to 1 July 2016 ordinary hours commenced at 5:00am rather than 6:00am and subsequently that ordinary hours commenced at 6:00am rather than 7:00am with the effect that overtime would not be payable under cl.27.1 of the Agreements for work between 5:00am and 6:00am up to 1 July 2016 and between 6:00am and 7:00am from 1 July 2016. Symbion argued that to the extent that the employees started work before their ordinary hours of work, the period that they worked was properly understood to have been overtime for which they were entitled to overtime pay, not work on the early morning shift attracting a shift allowance. CONSIDERATIONPrinciples of construction The following statement of the principles relevant and applicable to the interpretation of an enterprise agreement has been endorsed by the Full Court of the Federal Court in Avard v Australian Capital Territory [2025] FCAFC 72 at [44]:(i) The starting point is the ordinary meaning of the words, read as a whole and in context …(ii)A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” … The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” …(iii)Context is not confined to the words of the instrument surrounding the expression to be construed … It may extend to “ … the entire document of which it is a part, or to other documents with which there is an association” ...(iv)Context may include “ … ideas that gave rise to an expression in a document from which it has been taken” …(v)Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form …” …(vi)A generous construction is preferred over a strictly literal approach … but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” …(vii)Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry … (references omitted)James Cook University v Ridd (2020) 278 FCR 566 at 580-581 [65] per Griffiths and SC Derrington JJ) I shall apply those principles in construing the Enterprise Agreements.Findings of fact The 2015 Agreement stated that until 1 July 2016 the spread of ordinary hours of work for “day workers” would be 6:00am to 5:30 pm, after which it would be 7:00am to 5:30pm. The 2017 Agreement continued the latter hours into its period of operation.