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

[2023] FWC 764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers' Union
v

Symbion Pty Ltd T/A Symbion

(B2023/280)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 MARCH 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 Symbion (Respondent).

On 28 March 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 27 March 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 PR760723.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union, acting on behalf of its members, applied to the Fair Work Commission for a protected action ballot order against Symbion Pty Ltd T/A Symbion. The Union sought the order under section 437 of the Fair Work Act 2009, aiming to hold a ballot among the employees regarding potential protected actions. Symbion Pty Ltd did not oppose the application, allowing the Commission to proceed with the matter based on the submitted documents. The Union's application included a statutory declaration by Anna Thwaites, which detailed the bargaining process and the Union's genuine efforts to reach an agreement with the Respondent.

The primary legal issues for the Fair Work Commission to decide were whether the Union had genuinely attempted to reach an agreement with Symbion Pty Ltd and if the statutory requirements for a protected action ballot had been met. The Commission had to consider the statutory declaration and any other relevant documents to assess the Union's efforts and the applicability of the Fair Work Act provisions. The Union needed to demonstrate that it had been genuinely attempting to reach an agreement, and that the requirements for a ballot under section 443(1) of the Act had been fulfilled.

The Fair Work Commission, Vice President Catanzariti, found that the Union had indeed been genuinely trying to reach an agreement with Symbion Pty Ltd. The Vice President was satisfied with the evidence provided, particularly the statutory declaration and the steps taken by the Union in bargaining with the Respondent. The Commission also concluded that the statutory requirements for a protected action ballot had been met. Based on these findings, the Vice President decided to grant the Union's application for a protected action ballot order. The decision was made on the papers without the need for a hearing, given the Respondent's lack of opposition and the clarity of the evidence presented.

The Fair Work Commission issued an Order in PR760723, granting the United Workers' Union's application for a protected action ballot. The Union is now authorised to hold a ballot among the employees of Symbion Pty Ltd to determine potential protected actions. This decision ensures that the Union's members can participate in the decision-making process regarding their employment conditions, in accordance with the provisions of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established