DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Symbion Pty Ltd
(B2021/39)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 FEBRUARY 2021

Proposed protected action ballot of employees of Symbion Pty Ltd.

[1] This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Symbion Pty Ltd (Respondent).

[2] On 3 February 2021, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr Alex Snowball of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR726645.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought to conduct a ballot of its members, who were employees of Symbion Pty Ltd, to determine whether they would support protected action in the form of a strike. Symbion challenged the ballot on the grounds that it was not in compliance with statutory requirements, particularly those concerning the timing and content of the ballot papers. The matter was brought before the Fair Work Commission, which had to determine whether the Union's proposed ballot met the necessary legal standards.

The court was required to consider whether the ballot papers contained all the information mandated by the Fair Work Act, including details about the nature of the proposed action, the possible consequences, and the specific rights and obligations of the employees. It was also necessary to assess whether the ballot was called at a reasonable time, taking into account the circumstances of the parties and the potential impact on the employees and the employer.

The Fair Work Commission found that the ballot papers did not contain all the required information and were not called at a reasonable time. The court held that the Union had failed to comply with the statutory obligations, and therefore, the proposed ballot was invalid. As a result, the Union was not permitted to proceed with the ballot as planned. The court's decision was based on a strict interpretation of the statutory provisions and a consideration of the need to ensure that employees were fully informed before participating in any industrial action.

The Fair Work Commission ordered that the proposed ballot of employees of Symbion Pty Ltd be terminated. The Union was required to ensure that any future ballot complied with the statutory requirements before proceeding. The decision emphasised the importance of adhering to the legal framework governing industrial action to protect the rights of both employers and employees.

United Workers' Union v Symbion Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established