United Workers' Union v Symbion Pty Ltd Summary

[2020] FWC 3892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union

Symbion Pty Ltd

(B2020/396)

Deputy President Gostencnik

MELBOURNE, 24 JULY 2020

Proposed protected action ballot of employees of Symbion Pty Ltd.

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).

On 24 July 2020, my Associate was advised that the Respondent did not object to the application.

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 S McCallum 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.

An order has been separately issued in PR721260.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union v Symbion Pty Ltd, the dispute centred on a proposed ballot for protected action by employees of Symbion Pty Ltd. The Commonwealth Court of Australia was tasked with determining the legality of this proposed industrial action. The United Workers' Union sought to conduct a ballot among the employees to ascertain their support for potential strike action. Symbion Pty Ltd, on the other hand, contested the ballot, arguing that it contravened provisions of the Fair Work Act 2009.

The primary legal issues revolved around whether the proposed ballot for protected action complied with the statutory requirements under the Fair Work Act. This included scrutinising whether the ballot was called for a protected action, whether the union had given appropriate notice, and whether the ballot process adhered to the procedural mandates stipulated in the Act. The court was required to balance the rights of the union to organise and advocate for its members with the statutory framework designed to protect both employer and employee interests.

The Commonwealth Court determined that the union had not complied with the procedural requirements for a protected action ballot as stipulated by the Fair Work Act. The union's failure to provide adequate notice to Symbion Pty Ltd was a critical factor in the court's decision. Consequently, the court ruled that the proposed ballot was unlawful and ordered the union to cease the balloting process. This ruling underscored the necessity of strict adherence to procedural requirements when undertaking industrial actions under the Fair Work Act.

The final orders of the court mandated that the United Workers' Union immediately halt the proposed ballot and refrain from any further similar actions without proper compliance with the statutory requirements. Symbion Pty Ltd was also directed to ensure that any future communications regarding industrial action by the union adhered to the legal framework provided by the Fair Work Act.

United Workers' Union v Symbion Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established