"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Ensign Services (Aust.) Pty. Ltd. [2024] FWC 393

Fair Work Act 2009 s.739 - Application to deal with a dispute "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Ensign Services (Aust.) Pty. Ltd. (C2023/7970) COMMISSIONER CONNOLLY MELBOURNE, 5 MARCH 2024 Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]. Introduction [1] On 19 December 2023, an application was lodged by the Australian Manufacturing Workers Union (AMWU or the Applicant) under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the Dispute Resolution Procedure contained in clause 9 of the Ensign Dandenong Maintenance Enterprise Agreement 2022 (the Agreement). The Respondent in this matter is Ensign Services (Aust) Pty Ltd t/a Linen Services Australia, the employer covered by the Agreement. [2] The Agreement was approved by the Commission on the 10 October 2022 and is attached in Appendix A to this decision in its current form. The agreement commenced operation on 17 October 2022 and will reach its nominal expiry date on 1 August 2025. The AMWU is covered by the Agreement and acts for employees covered by the Agreement. [3] On 31 January 2024, the parties participated in a Conference in an attempt to resolve the dispute. [4] Mr Andrew Bonello, AWWU Industrial Officer and Mr Daniel Wessley, AMWU Organiser appeared for the Applicant. Mr John Douglas sought leave to appear for the Respondent and there being no objections, leave was granted. Also appearing for the Respondent was Ms Nicole Pianta, General Manager HR and Safety. [5] In conference, the parties reached an understanding on pay rates, the dispute and effective dates as set out in clause 29 of the attached Agreement. [2024] FWC 393 DECISION -- 1 of 29 -- [2024] FWC 393 [6] The purpose of this decision is to record this understanding of the parties as a binding decision of the Commission, as provided for by Clause 9 of the Agreement. Legislation [7] The parties sought the exercise of the Commission’s arbitral powers under s.739 of the Act. Section 739(4) relevantly provides; “(4) “If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.” The relevant Dispute Resolution Procedure is contained in clause 9 of the Agreement. Relevantly, clause 9(2)(c) And 9(5) provides: “If a dispute in relation to a matter arising under the Agreement is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to the Fair Work Commission (FWC) for resolution by mediation and/or arbitration. If arbitration is necessary the FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.” … “The decision of the FWC will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench.” Background [8] The AMWU contended that the Respondent failed to apply a 4% pay increase due to be paid under the terms of clause 29 of the Agreement, effective from the first pay period after 17 October 2023. The AMWU also raised concerns that the Respondent may also not comply with its obligations to pay a further 4% pay increase due under the terms of clause 29 from the first pay period after 17 October 2024. [9] The Respondent’s position is that it has complied with the obligations of clause 29 of the Agreement as of 20 November 2023. Specifically, that following discussions in the workplace it agreed to bring forward and increase the pay increases which fell due under the agreement such that employees were already paid above the rates required under the agreement from 17 October 2024, effective from 20 November 2023. [10] There is no dispute between the parties that there is a lack of clarity regarding the pay rates, their applicability under the terms of the Agreement and how they are applied in the workplace. There is also no dispute that this reality has given cause to this dispute between the parties. [11] The parties agree that the preliminary requirements of clause 9 of the Agreement have been met and the powers of the FWC to mediate or otherwise arbitrate under the Agreement are enlivened. -- 2 of 29 -- [12] Both parties have expressed the wish for the Commission to assist with determining and clearly articulating the terms and effect of clause 29 of the Agreement, consistent with the current facts and circumstances applying to the workplace. Agreement of the Parties [13] Considering their respective positions and submissions articulated at the Conference on 31 January 2024, the parties have considered and acknowledge that the ordinary pay rates currently applying under the terms of the Agreement are as set out in Table 1 below: Table 1: Classification Current Hourly Pay Rate Effective 20/11/2023 C2B 44.72 C10 44.72 C8 44.72 C13 33.28 [14] The parties acknowledge these rates are beyond those set out to be paid under clause 29 of the Agreement. [15] Furthermore, the parties agree that, effective from the first full pay period after 20 November 2024, the rates in Table 1 shall be increased by a further 4% and thereafter paid as the ordinary rates for the remaining life of the agreement. These ordinary pay rates are set out in Table 2 below: Table 2: Classification Hourly Pay Rate Effective 20/11/2024 C2B 46.51 C10 46.51 C8 46.51 C13 34.61 Conclusion [16] Consistent with the agreement reached by the parties at the Conference conducted on 31 January 2024, I have determined that the ordinary pay rates currently paid under this agreement are as stated in Table 1 in paragraph [13] above. [17] Furthermore, effective from the first full pay period after 20 November 2024, these ordinary pay rates shall be increased a further 4%, to the rates set in Table 2 in paragraph [15] above, thereafter paid as the ordinary rates for the remaining life of the agreement: [18] Relevantly, the above rates are the ordinary time hourly rates hereafter applicable under this agreement for the period identified. All loadings, penalties, benefits and other entitlements applicable under the Agreement shall be determined based on these pay rates, excluding allowances. -- 3 of 29 -- [2024] FWC 393 COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR771327> -- 4 of 29 -- f_p_n_5_ Annexure A -- 5 of 29 -- [2024] FWC 393 f_p_n_6_ -- 6 of 29 -- f_p_n_7_ -- 7 of 29 -- [2024] FWC 393 f_p_n_8_ -- 8 of 29 -- f_p_n_9_ -- 9 of 29 -- [2024] FWC 393 f_p_n_10_ -- 10 of 29 -- f_p_n_11_ -- 11 of 29 -- [2024] FWC 393 f_p_n_12_ -- 12 of 29 -- f_p_n_13_ -- 13 of 29 -- [2024] FWC 393 f_p_n_14_ -- 14 of 29 -- f_p_n_15_ -- 15 of 29 -- [2024] FWC 393 f_p_n_16_ -- 16 of 29 -- f_p_n_17_ -- 17 of 29 -- [2024] FWC 393 f_p_n_18_ -- 18 of 29 -- f_p_n_19_ -- 19 of 29 -- [2024] FWC 393 f_p_n_20_ -- 20 of 29 -- f_p_n_21_ -- 21 of 29 -- [2024] FWC 393 f_p_n_22_ -- 22 of 29 -- f_p_n_23_ -- 23 of 29 -- [2024] FWC 393 f_p_n_24_ -- 24 of 29 -- f_p_n_25_ -- 25 of 29 -- [2024] FWC 393 f_p_n_26_ -- 26 of 29 -- f_p_n_27_ -- 27 of 29 -- 28 -- 28 of 29 -- [2024] FWC 393 29 -- 29 of 29 --