Application for approval of the Ensign Darwin Enterprise Agreement 2024

[1] Ensign Services (Aust) Pty Ltd trading as Linen Services Australia ("the Employer") has applied for approval of an enterprise agreement known as Ensign Darwin Enterprise Agreement 2024 ("the Agreement"). The Application was made under s.185 of the Fair Work Act 2009 ("the Fair Work Act"). The Agreement is a single enterprise agreement.

[2] By operation of subsection 202(4) of the Fair Work Act, if an enterprise agreement does not include a flexibility term compliant with that Act, the model flexibility term is taken to be a term of the agreement. The Agreement does not contain a flexibility term compliant with the Fair Work Act.

[3] The model flexibility term provided for in subsection 202(4) is prescribed by the Fair Work (Model Terms) Determination 2025. Section 202 was amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) ("the Closing Loopholes No 2 Act"). The relevant new provisions commenced on 26 February 2025. Prior to the amendment, the relevant model term had been prescribed in the Fair Work Regulations 2009 (Cth) ("the Regulations").

[4] By operation of section 9A of the Fair Work Act, the Schedules to that Act contain application, transitional and saving provisions relating to amendments of it. Those Schedules have effect.[1] Schedule 1 provides for application, saving and transitional provisions relating to amendments of the Fair Work Act. Schedule 1 is divided into Parts, with the Parts relating to different amending Acts. Part 16 of Schedule 1 relates to the main amendments made to the Fair Work Act by the Closing Loopholes No 2 Act. That Part commences with item 100 which provides that in Part 16, "amending Act" means the Closing Loopholes No 2 Act. Item 107 appears in Division 4 of Part 16 of Schedule 1, which relates to amendments made by Part 5 of Schedule 1 to the Closing Loopholes No 2 Act. The relevant transitional provision for the amendment to section 202 is found in item 107, in that Division. Item 107 relevantly provides:

(1) Despite the amendments made by Part 5 of Schedule 1 to the amending Act, sections 202, 205 and 737, as in force immediately before the commencement of that Part, continue to apply in relation to an enterprise agreement if:

(a) before that commencement, the employer concerned asks the employees to approve the agreement by voting for it; and

(b) by that vote, the employees approve the agreement; and

[5] I sought submissions from the parties as to whether the previous or current model term should be taken to be a term of the Agreement. I did so by reference to item 107, and asked them:

Does the phrase "the employer concerned asks the employees to approve the agreement by voting for it" refer to:

• the date on which the employer gave notice about the vote; or
• the date the vote occurred?

[6] I considered this necessary having regard to the relevant dates for this Agreement, which were as follows, according to the declaration filed on behalf of the Employer:

• On 21 February 2025 an email was sent to each employee to be covered by the proposed enterprise agreement and including Voting instructions on how to cast their vote during the voting period. The information also included the vote would be conducted via a paper ballot Monday 3 March 2025 between 0800 and midday.

• On 21, 24, 25, 26, 27, 28 February 2025 information sessions were conducted with employees regarding the EA and included an outline of when and how they could vote. Information included the vote would be conducted via paper ballot Monday 3 March 2025; 0800 - midday.

• The vote was conducted on Monday 3 March 2025.

[7] The Employer submitted that item 107 does not apply because it related only to amendments made to the Fair Work Act by the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012 (Cth). The Employer referred to the heading of Part 1 of Schedule 1. Alternatively, it submitted that the date the employer asked the employees to approve the Agreement by voting for it was the date on which the Employer had given notice of the vote.

[8] My chambers drew the parties' attention to item 100 of Schedule 1 and invited further submissions on that point if the Employer wished to make them. In response the Employer maintained its submission that, despite the express words of that item, the transitional provision should be read as applying to the textile, clothing and footwear industry only. It made that submission in reliance on the Explanatory Memorandum to "the Bill," without specifying which bill it meant. In the alternative, the Employer maintained its submission that the relevant date was the date on which notice was given, by reference to the word "asks" in item 107(1)(a).

[9] The United Workers' Union (UWU) responded that it supported the Employer's submission.

[10] I have considered the parties' submissions but I do not accept them. It is clear from the face of the legislation that item 107 of Schedule 1 to the Fair Work Act applies as a transitional provision regarding, inter alia, the amendment of section 202 of that Act by the Closing Loopholes No 2 Act.

[11] Accordingly, the question is what is meant by the reference to the Employer asking employees to approve the Agreement by voting for it. In my view, this is to be read consistently with subsection 181(1) which refers to an employer requesting employees to approve an enterprise agreement by voting for it.

[12] In Re Shop, Distributive and Allied Employees Association[2] the Full Bench said "the "request" contemplated by s.181(1) is a single act or event which occurs at the end of the access period and immediately prior to (or perhaps upon) the commencement of the voting process."

[13] Taking that approach, in this case the Employer asked employees to vote to approve the Agreement at or immediately before the ballot commenced on the morning of 3 March 2025.

[14] Accordingly, pursuant to s.202(4) and item 107 of Schedule 1 of the Fair Work Act, the model flexibility term as prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement.

[15] Noting clause 6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards ("NES") in the Act will prevail where there is any inconsistency between the Agreement and the NES.

[16] The Employer has given written undertakings in accordance with section 190 of the Act. The undertakings are attached as Annexure A to this decision. I am satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement and do not result in substantial changes to the Agreement. The undertakings are taken to be terms of the Agreement.

[17] With the undertakings now given, and after having regard to the Statement of Principles as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[18] The UWU lodged a declaration[3] giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the UWU.

[19] The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

ANNEXURE A

[1] Fair Work Act 2009 (Cth) s 795A.

[2] [2019] FWCFB 7599; 291 IR 233, [31].

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