Daniel Mikolaschek v MSS Security Pty Limited - [2024] FWC 1005

[2024] FWC 1005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Daniel Mikolaschek
v

MSS Security Pty Limited

(C2023/5011)

DEPUTY PRESIDENT LAKE

BRISBANE, 30 APRIL 2024

Alleged dispute about any matters arising under the enterprise agreement – rostering – ordinary hours – individual flexibility arrangement – minimum ordinary hours not provided – dispute determined.

On 23 August 2023, Mr Daniel Mikolaschek (the Applicant) made an application to the Fair Work Commission (the Commission) seeking to resolve a dispute with MSS Security Pty Limited (the Respondent) under s.739 of the Fair Work Act 2009 (the Act).

The parties had attempted to resolve the matter internally which was unsuccessful. The Commission attempted to resolve the matter on 5 September 2023 and the dispute was not resolved. Clause 2.2.7 of the MSS Security Enterprise Agreement (QLD) 2020 – 2024 (the Agreement) provides the Commission the ability to arbitrate the dispute and make a determination that is binding on the parties if the dispute remains unresolved.

2.2.7 Fair Work Commission may deal with the dispute in two stages: (a) Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and (b) If Fair Work Commission is unable to resolve the dispute at the first stage, Fair Work Commission may then: arbitrate the dispute; and make a determination that is binding on the parties,

As the dispute was not resolved, the parties determined that the matter should be arbitrated. The Hearing was listed before me on 30 November 2023.

Background

The dispute surrounds whether the IFA is properly made and whether the Applicant was entitled to a minimum number of 24 ordinary hours each week which accrue leave and superannuation. The question surrounds whether the Respondent complied with the Agreement if they pay the Applicant overtime rates instead of ordinary hours when the Respondent did not provide at least 7 days’ notice of the Applicant’s roster.

The Applicant contends that under the IFA, he is entitled to be paid a minimum of 24 ordinary hours with the requisite accruals for leave and superannuation regardless of whether he has been provided the 7 days’ notice. The Applicant states that if is not provided the requisite notice period, then the overtime rate is payable by the Respondent in addition to the 24 hours ordinary hours. The Applicant feels he is disadvantaged when some of the 24 hours are paid at overtime rates, as accruals and superannuation are not calculated on the overtime hours.

The Respondent’s position is that the Commission must determine whether the IFA is valid. Their position is that the IFA is not validly made as it was not made under flexibility clause in the Agreement. Therefore, they were not subject to provide the Applicant 24 ordinary hours of work per week. If the Respondent was required to change the roster within the 7-day period, the ordinary hours of work would be paid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel Mikolaschek v MSS Security Pty Limited

Details

AGLC: Daniel Mikolaschek v MSS Security Pty Limited [2024] FWC 1005
Case: [2024] FWC 1005
Decision Date: 30 APRIL 2024

CaseChat Overview and Summary

The Fair Work Commission (FWC) arbitrated a dispute between Daniel Mikolaschek and MSS Security Pty Limited regarding the terms of an Individual Flexibility Agreement (IFA) and its compliance with the MSS Security Enterprise Agreement (QLD) 2020-2024. The Applicant alleged that the Respondent failed to provide a minimum of 24 ordinary hours of work each week, which accrued leave and superannuation, and instead paid overtime rates for some of these hours. The Respondent argued that the IFA was not validly made and, as such, they were not obligated to provide the minimum hours. The questions for arbitration involved whether the Respondent was required to give the Applicant at least 24 ordinary hours each week and if the Respondent would breach the terms of the IFA and the Enterprise Agreement by paying overtime rates or providing less than 7 days' notice of the roster.

The Commission examined the language of the Enterprise Agreement and the IFA, considering the principles of interpretation that favour a purposive approach over a literal one and taking into account the industrial context. The IFA stipulated that the Applicant would receive a minimum of 24 ordinary hours per week, with rosters provided seven days in advance 'wherever possible.' The Commission found that the IFA was effective in guaranteeing the Applicant a minimum of 24 ordinary hours per week, despite the 'wherever possible' clause, as it was a written agreement meeting the requirements of the Enterprise Agreement. The substitution of the notice period was part of the trade-off for the guaranteed minimum hours, and the overtime clauses were not triggered as a result.

The Commission concluded that the Respondent breached the terms of the IFA and the Enterprise Agreement by paying the Applicant overtime rates instead of ordinary hours. The Commission did not find a breach in the provision of rosters with less than 7 days' notice, as the 'wherever possible' clause effectively substituted the notice period, aligning with the purpose of the IFA. The Commission recommended that the Respondent review the payments made to the Applicant, reconcile the amounts owed, and adjust accruals accordingly. It also suggested that if the Applicant was dissatisfied with the current arrangement, the IFA could be terminated by mutual agreement and that the Respondent review other IFAs to ensure their validity.

Orders