United Workers' Union v Symbion Pty Ltd T/A Onelink

[2023] FWC 866

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Symbion Pty Ltd T/A Onelink

(B2023/318)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 APRIL 2023

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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Symbion Pty Ltd T/A Onelink (Respondent).

On 11 April 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 Anna Thwaites of the Applicant declared on 4 April 2023, 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 PR761014.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of United Workers' Union versus Symbion Pty Ltd, trading as Onelink, the applicant, the United Workers' Union, sought a protected action ballot order in relation to certain employees of the respondent, Symbion Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, and the dispute centred around the proposed industrial action by the employees. The matter was heard by the Fair Work Commission in Sydney on 11 April 2023. Notably, the respondent did not oppose the application, which facilitated the Commission's decision to proceed with the determination based on the papers submitted, without the necessity of a hearing.

The legal issues at the core of this case revolved around the validity of the union's application for a protected action ballot and the satisfaction of the statutory requirements set out in section 443(1) of the Act. The applicant needed to demonstrate that it had genuinely attempted to reach an agreement with the respondent and that the requisite notification period had elapsed. Additionally, the Commission had to consider whether the conditions for a protected action ballot, as stipulated in the Fair Work Act, were met.

The Vice President of the Fair Work Commission, Catanzariti, reviewed the material presented, including the statutory declaration by Anna Thwaites of the United Workers' Union, which detailed the bargaining process and the union's efforts to reach an agreement. The Vice President concluded that the union had indeed been genuinely attempting to negotiate and that the notification period had been observed. Consequently, the requirements for a protected action ballot were fulfilled, leading to the issuance of an order in PR761014.

In light of the findings, the Fair Work Commission determined to grant the application for a protected action ballot order. The decision was made based on the evidence provided by the union and the absence of opposition from the respondent, Symbion Pty Ltd. The Commission's ruling was issued under the authority of the Commonwealth Government Printer and was documented in PR761015.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established