Ensign Services (Aust) Pty Ltd Trading AS Linen Services Australia

ENSIGN LAUNDRY SERVICE DUDLEY PARK & TWU ENTERPRISE AGREEMENT 2024

Application for approval of the Ensign Laundry Service Dudley Park & TWU Enterprise Agreement 2024

[1] An application has been made for approval of an enterprise agreement known as Ensign Laundry Service Dudley Park & TWU Enterprise Agreement 2024 (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 (Ensign). The Agreement is a single enterprise agreement.

[2] In response to several issues raised with Ensign in relation to its application, it has provided written undertakings, a copy of which are 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. The views of the bargaining representatives for the proposed agreement have been sought and provided pursuant to s 190(4) of the Act. The undertakings are taken to be a term of the agreement.

[3] The undertakings relate to:

1. Ordinary hours of work, and the payment of overtime rates; and

2. How ordinary hours of work apply in relation to public holidays, and the application of s 114 of the Act (which deals with public holiday entitlements) to employees covered by the agreement; and

3. The entitlement of employees covered by the agreement to penalty rates, which apply under the [Award], in respect to public holidays; and

4. The applicability of provisions in the [Award] to employees covered by the agreement, where the agreement is silent in relation to a particular matter covered by the Award.

[4] Section 202 of the Act provides that if an enterprise agreement does not include a flexibility term, the model flexibility term prescribed by Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the agreement. Section 203 of the Act provides that a flexibility term must meet the requirements it sets out, including, relevantly, that the flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must be able to be terminated by either the employee or the employer giving written notice of not more than 28 days, or by the employee and the employer at any time if they agree in writing to the termination.

[5] As clause 6.12 of the agreement provides an individual flexibility agreement may be terminated by the employer or employee giving 13 weeks' written notice to the other party (reduced to 4 weeks if the agreement was entered in to on or after 4 December 2013), as opposed "not more than 28 days" as required by s 203(6) of the Act, the flexibility term provided for at clause 9(4) does not meet the requirements set out in that section of the Act, and the model flexibility term prescribed by 2.2 of the Regulations is taken to be a term of the agreement.

Interaction with the National Employment Standards

[6] Clause 17 of the Agreement provides that nothing in it is to operate so as to result in a detrimental outcome for an employee as compared to an entitlement under the National Employment Standards (NES) (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

1. Clause 22.1 of the Agreement, which deals with "personal/carers leave" refers to "illness" but not "personal injury", as is referred to in s 97 of the Act. However, taking into account the NES precedence clause, it appears clause 22.1 should be read as encompassing an entitlement to personal/carers leave including where relevant "personal injury", as well as "illness"

2. Clause 22.4 of the Agreement, which also relates to personal/carers leave, provides hat an employee must, as far as practicable either before or at their usual time of work commencement (and in any event no later than 24 hours after the commencement of the absence) advise the employer of their inability to attend for duty. To the extent this requires a more onerous provision of notice than is required by the NES, I note that as a result of the NES precedence clause, the provisions of the NES will prevail - particularly in relation to, for example, s 107(2)(a) of the Act, which provides that notice may be given after the leave has commenced.

3. Clause 24 of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

4. Clause 15.5 of the Agreement relates to "redundancy payments" in circumstances where a contract is lost and an incoming employer offers "suitable alternative employment". The NES precedence clause will require this provision to be read subject to s 122 of the Act, which deals with transfer of employment situations that affect the obligation to pay redundancy pay.

[7] 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.

[8] 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 TWU.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

[10] Subclauses in the Agreement beneath clause 14.1, "Hours of Work - Industrial" are numbered 15.1.1 and 15.1.2 before the clause reverts back to "14".

[11] I propose to exercise my power pursuant to s 218A(2)(b) of the Act to correct these obvious errors. I have sought the views of the bargaining representatives in relation to this proposition, and there was no objection. Accordingly, the Agreement is varied such that the references in clause 14.1 of the Agreement to clauses 15.1.1, and 15.1.2 and should read 14.1.1 and 14.1.2 and I so order.

Printed by authority of the Commonwealth Government Printer