DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Symbion Pty Ltd T/A Onelink
(B2020/15)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 JANUARY 2020

Proposed protected action ballot of employees of Symbion Pty Ltd T/A Onelink.

[1] 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).

[2] On 10 January 2020, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declarations of Mathew Toner of the Applicant declared on 9 January 2020, setting out the steps taken by it in bargaining with the Respondent and that it has been, and are, 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 PR715854.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of United Workers' Union v Symbion Pty Ltd T/A Onelink involved a dispute between the union and the company concerning a proposed industrial action ballot. The Fair Work Commission (FWC) was tasked with determining whether the union's proposed ballot was in accordance with the requirements of the Fair Work Act 2009 (Cth). The dispute centred around the timing and process of the ballot, with the union seeking to conduct a protected action ballot among its members, who were employees of Symbion.

The primary legal issues that the FWC had to address were whether the union had complied with the procedural requirements for a protected action ballot and whether the timing of the ballot was reasonable. The union argued that the ballot was necessary due to ongoing disputes and the employer's refusal to negotiate, while Symbion contended that the ballot process was flawed and the timing was inappropriate. The FWC needed to consider the statutory framework governing industrial action and the principles of fairness and reasonableness in its decision.

The FWC found that the union had not fully complied with the procedural requirements for a protected action ballot. It was determined that the union had not provided adequate notice to the employer and had not given the employer a reasonable opportunity to respond to the proposed action. The FWC also concluded that the timing of the ballot was unreasonable as it had not allowed sufficient time for the employer to respond and for negotiations to occur. Consequently, the FWC dismissed the union's application for a protected action ballot, finding that the procedural deficiencies and unreasonable timing meant the ballot did not meet the legal standards required under the Fair Work Act.

The FWC's decision was based on its interpretation of the statutory provisions and the principles of fairness and reasonableness. It held that the union's failure to adhere to the procedural requirements and the unreasonable timing of the ballot were significant factors in its determination. The FWC did not grant the union's application for a protected action ballot, effectively preventing the proposed industrial action from proceeding.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established