United Workers' Union v Symbion Pty Ltd
[2024] FWC 3034
•1 NOVEMBER 2024
| [2024] FWC 3034 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
United Workers’ Union
v
Symbion Pty Ltd
(B2024/1415)
| COMMISSIONER HUNT | BRISBANE, 1 NOVEMBER 2024 |
Proposed protected action ballot of employees of Symbion Pty Ltd
The United Workers’ Union (UWU) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order (PABO) in relation to certain employees of Symbion Pty Ltd (the Respondent).
On 31 October 2024, the Respondent advised that it objected to the application on the basis that exceptional circumstances exist justifying the written notice referred to in s.414(2)(a) of the Act being extended to seven working days for question 1 – 9, inclusive, in accordance with s.443(5) of the Act. Accordingly, the matter was listed for hearing by video on 1 November 2024. However, on 1 November 2024, the Respondent wrote to my chambers advising that the parties have reached agreement in respect of the objection, as discussed below. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.
On the basis of the material before me, including the statutory declaration of Mr Chris Dundon, setting out the steps taken by the UWU in bargaining with the Respondent and confirming that the UWU has been, and is, genuinely trying to reach agreement with the Respondent. I am also satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met.
I am satisfied that the UWU has given notice in accordance with section 440 of the Act.
The parties reached a consent position during private discussions regarding the period of written notice referred to in s.414(2)(a) of the Act being longer than three working days for certain questions within the order. The parties considered it appropriate, having regard to the nature of the industry that the Respondent operates in, for the Respondent to be provided with four working days’ notice for questions 3, 4, 6, 8 and 9.
Section 443(5) of the Act gives the Fair Work Commission (the Commission) the discretion, where it is satisfied that there are exceptional circumstances justifying the period of written notice being longer than three days, to specify a longer period of up to seven working days’ notice.
In my view, specifying a longer period of notice for some of the questions within the Order is justified by the particular exceptional circumstances in this case as detailed in the Respondent’s response, particularly in relation to the nature of the Respondent’s business in supplying pharmaceutical products to pharmacies and hospitals. I accept that if the notice period were not extended in respect of certain actions, the Respondent’s ability to mitigate the impact of the industrial action would be hampered, which may accordingly impact the population’s ability to access medications
The protected action ballot order will specify a required period of notice of at least four working days for questions 3, 4, 6, 8 and 9, inclusive. The protected action ballot order will specify a required period of notice of at least three working days for questions 1, 2, 5, 7 and 10.
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close in the ballot is 14 November 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.
The ballot is to be conducted by Democratic Outcompes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently authorised to conduct the ballot.[1] The scheme of the Act is now that where named in the PABO application and proposed orders, the Commission will, subject to the Act, be obliged to, in effect, appoint that eligible protected action ballot agent to conduct the ballot concerned.
The Order [PR780882] will be issued concurrently with this Decision.
This matter will be listed for a s.448A conference. An Order and Directions will be issued shortly requiring attendance at the conference.
COMMISSIONER
[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.
Printed by authority of the Commonwealth Government Printer
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