Ensign Services (Aust) Pty Ltd T/A Linen Services Australia

[2024] FWCA 1242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ensign Services (Aust) Pty Ltd T/A Linen Services Australia

(AG2024/853)

ENSIGN SERVICES MURDOCH LAUNDRY WESTERN AUSTRALIA ENTERPRISE AGREEMENT 2023

Dry cleaning and laundry services
COMMISSIONER LIM	PERTH, 8 APRIL 2024

Application for approval of the Ensign Services Murdoch Laundry Western Australia Enterprise Agreement 2023

Ensign Service (Aust) Pty Ltd T/A Linen Services Australia (Ensign) (the Applicant) has made an application for the approval of an enterprise agreement known as the Ensign Services Murdoch Laundry Western Australia Enterprise Agreement 2023 (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.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 13 July 2023 and the Agreement was made on 8 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

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.

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.

The flexibility term in clause 44 of the Agreement states that an individual flexibility agreement may be terminated by giving four weeks’ written notice. This may be inconsistent with s 204(4) of the Act which requires notice of not more than 28 days. The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

The United Workers Union (UWU), 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 UWU, I note that UWU is covered by the Agreement.

The Agreement was approved on 8 April 2024 and, in accordance with s 54, will operate from 15 April 2024. The nominal expiry date of the Agreement is 15 April 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

In the Fair Work Commission, the matter of Ensign Services (Aust) Pty Ltd T/A Linen Services Australia involved an application for the approval of the Ensign Services Murdoch Laundry Western Australia Enterprise Agreement 2023. The primary dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The applicant, Ensign Services (Aust) Pty Ltd, sought the Commission's endorsement of the proposed enterprise agreement which aimed to govern the terms and conditions of employment for its workers at the Murdoch Laundry in Western Australia.

The central legal issues before the Commission were whether the agreement contained all the mandatory terms as prescribed by the Fair Work Act, whether the agreement had been genuinely negotiated between the employer and the employees, and whether it satisfied the 'better off overall test'. The Commission needed to ensure that the agreement was not only procedurally correct but also substantively fair to the employees it covered. It was essential that the agreement did not disadvantage employees relative to their prior terms of employment or the applicable award or registered agreement.

After examining the evidence and submissions presented by both parties, the Commission found that the proposed agreement was procedurally sound and substantively fair. The agreement was deemed to include all mandatory terms, had been genuinely negotiated, and met the better off overall test. Consequently, the Commission approved the Ensign Services Murdoch Laundry Western Australia Enterprise Agreement 2023. The approval was based on the comprehensive evidence that the agreement would provide a fair and reasonable outcome for the employees involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established