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

[2022] FWCA 3483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2022/3936)

Ensign Dandenong Maintenance Enterprise Agreement 2022

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 10 OCTOBER 2022

Application for approval of the Ensign Dandenong Maintenance Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the Ensign Dandenong Maintenance Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Ensign Services (Aust) Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer provided undated written undertakings on 7 October 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Manufacturing and Associated Industries and Occupations Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Australian Manufacturing Workers Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, 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.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 October 2022. The nominal expiry date of the Agreement is 1 August 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Ensign Services (Aust) Pty Ltd, trading as Linen Services Australia, applied to the Fair Work Commission for the approval of the Ensign Dandenong Maintenance Enterprise Agreement 2022. The application was made under section 234 of the Fair Work Act 2009, and the dispute centred on the fairness and appropriateness of the terms of the proposed agreement for the employees in the maintenance department at the Dandenong site.

The primary legal issue before the Commission was whether the proposed agreement met the 'better off overall test' as required by section 231 of the Fair Work Act. This test assesses whether the agreement provides employees with terms and conditions that are no worse than those they would have under their previous enterprise agreement, and whether there are sufficient benefits to justify any deterioration in terms and conditions. Additionally, the Commission needed to determine if the agreement complied with the good faith bargaining provisions under section 228 of the Act and whether it adhered to the relevant industrial instruments.

The Commission found that the proposed agreement did meet the better off overall test. It concluded that the employees would benefit from the new agreement, as it provided for improvements in pay and conditions, as well as additional leave entitlements. The Commission also determined that the agreement was the product of good faith bargaining and was in compliance with the applicable industrial instruments. Consequently, the application for approval was granted, and the Ensign Dandenong Maintenance Enterprise Agreement 2022 was approved.

The Commission's final orders were that the Ensign Dandenong Maintenance Enterprise Agreement 2022 be approved as a registered agreement under section 175 of the Fair Work Act. The approved agreement was to be effective from the date of the Commission's decision and would apply to the employees covered by the agreement. The decision was made on the basis that the agreement met the statutory requirements and provided a fair and reasonable outcome for the employees involved.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established