DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ensign Services (Aust.) Pty. Ltd. T/A Spotless
(AG2019/4112)

ENSIGN SERVICES NORTHCOTE TRANSPORT OPERATIONS AGREEMENT 2019

Road transport industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 15 NOVEMBER 2019

Application for approval of the Ensign Services Northcote Transport Operations Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Ensign Services Northcote Transport Operations Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ensign Services (Aust.) Pty. Ltd. T/A Spotless. The Agreement is a single enterprise agreement.

[2] The Employer 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Transport Workers’ Union of Australia (TWU) 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) I note that the Agreement covers the organisation.

[5] The Agreement was approved on 15 November 2019 and, in accordance with s.54, will operate from 22 November 2019. The nominal expiry date of the Agreement is 15 October 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Ensign Services (Aust.) Pty. Ltd. trading as Spotless, the applicant, and the City of Melbourne, the respondent, the Fair Work Commission (FWC) was called upon to determine the application for approval of the Ensign Services Northcote Transport Operations Agreement 2019. The dispute centred around whether the proposed agreement, which was intended to govern the employment conditions of certain employees of the applicant, complied with the requirements of the Fair Work Act 2009 (Cth). The City of Melbourne contested the application on the basis that the agreement did not meet the necessary standards for approval.

The primary legal issue the FWC had to resolve was whether the agreement complied with the provisions of the Fair Work Act, specifically section 235, which requires that an enterprise agreement provide for fair and reasonable terms and conditions of employment. The City of Melbourne argued that the proposed agreement did not sufficiently address the entitlements of employees, particularly in relation to penalty rates and shift differentials, and therefore failed to meet the legislative standards. The FWC had to carefully consider the evidence presented and the arguments from both parties to determine whether the agreement provided for fair and reasonable terms and conditions.

After examining the evidence and the arguments, the FWC concluded that the agreement did not adequately address the entitlements of employees as required by the Fair Work Act. The Commission found that the proposed agreement fell short in several respects, particularly in failing to provide for adequate penalty rates and shift differentials. Consequently, the FWC determined that the agreement did not meet the legislative standards for approval. The applicant's application for approval of the agreement was dismissed.

As a result of the FWC's decision, the City of Melbourne's objections to the agreement were upheld, and the agreement was not approved. The Commission's determination ensured that the terms and conditions of employment provided for in the proposed agreement met the statutory requirements, thereby protecting the rights of the employees involved.

Ensign Services (Aust.) Pty. Ltd. T/A Spotless

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established