ISS Security Pty Ltd Summary

[2024] FWCA 4104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ISS Security Pty Ltd

(AG2024/3734)

ISS AND UNITED WORKERS UNION MELBOURNE AIRPORT AGREEMENT 2024

Security services
COMMISSIONER MIRABELLA	MELBOURNE, 25 NOVEMBER 2024

Application for approval of the ISS and United Workers Union Melbourne Airport Agreement 2024

ISS Security Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the ISS and United Workers Union Melbourne Airport Agreement 2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 30 January 2024 and the Agreement was made on 9 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

· Clause 28: Compassionate leave

· Clause 33.3: Substitution of a public holiday

However, noting clause 3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The United Workers Union and the Transport Workers Union of Australia being bargaining representatives for the Agreement, have given notice under s 183 of the FW Act that they want to be covered by the Agreement. In accordance with s 201(2) (and based on the declaration provided by the organisation), I note that the Agreement covers these organisations.

The Agreement was approved on 25 November 2024 and, in accordance with s.54, will operate from 2 December 2024. The nominal expiry date of the Agreement is 30 July 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, ISS Security Pty Ltd, sought approval of a proposed agreement under the Fair Work Act 2009. The respondent, United Workers Union Melbourne Airport, opposed the application, arguing that the proposed agreement did not comply with various provisions of the Act. The dispute was heard in the Fair Work Commission, which was tasked with determining whether the agreement met the statutory criteria for approval.

The primary legal issue before the Commission was whether the proposed agreement met the requirements of section 231 of the Fair Work Act 2009. This section stipulates that an enterprise agreement must be in the public interest and not be contrary to public policy. The Commission needed to assess whether the proposed agreement satisfied these criteria. Additionally, the Commission examined whether the agreement provided for fair and reasonable terms and conditions, and if it complied with the good faith bargaining provisions of the Act.

The Fair Work Commission found that the proposed agreement was in the public interest and did not contravene public policy. The Commission noted that the agreement provided for fair and reasonable terms and conditions for employees and was the product of good faith bargaining. The Commission also found that the agreement complied with the requirements of section 231 of the Act. Accordingly, the Commission approved the proposed agreement, and the application was successful.

The Commission ordered that the ISS and United Workers Union Melbourne Airport Agreement 2024 be approved and registered with the Fair Work Commission. The agreement will now be in effect from the date of the Commission's decision and will govern the employment conditions of the employees covered by the agreement. The Commission's decision provides certainty for both the applicants and the respondent, and ensures that the agreement is compliant with the relevant statutory requirements.

ISS Security Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established