Application for approval of the Symbion (Western Australia) Enterprise Agreement 2025

[1] Symbion Pty Ltd Trading AS Symbion (the Applicant) has made an application for the approval of an enterprise agreement known as the Symbion (Western Australia) Enterprise Agreement 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[4] In compliance with s 190(4) of the Act, the bargaining representatives' views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

[6] I note that clause 29 in the Agreement, which provides for compassionate leave, appears to be inconsistent with the National Employment Standards (the NES). It appears to omit the entitlement to leave where an employee, their partner or spouse has a miscarriage or gives birth to a stillborn child.

[7] However, I am satisfied that under clause 5.2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement contains a delegates' rights term, as required by s 205A(1) of the Act. However, given the decision of the Full Court of the Federal Court in Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187, and recent variations issued by the Fair Work Commission Full Bench in AM2024/6 and AM2025/28_,_ I put to the parties my view that the Agreement term is less favourable than the workplace delegates' rights term in the applicable award, and thus the award delegates' rights term should be inserted. The parties did not contest this. Accordingly, under s 205A(2) of the Act, Clause 26A of the Pharmaceutical Industry Award 2020 is taken to be a term of the Agreement.

[9] The Shop, Distributive and Allied Employees Association (the organisation), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

[10] The Agreement was approved on 5 February 2026 and, in accordance with s 54, will operate from 12 February 2026. The nominal expiry date of the Agreement is 30 September 2028.

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