ISS Security Pty Ltd Summary

[2021] FWCA 6078

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ISS Security Pty Ltd
(AG2021/7497)

ISS AND UNITED WORKERS UNION MELBOURNE AIRPORT AGREEMENT 2021

Security services
COMMISSIONER LEE	MELBOURNE, 30 SEPTEMBER 2021

Application for approval of the ISS and United Workers Union Melbourne Airport Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the ISS and United Workers Union Melbourne Airport Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ISS Security Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The United Workers’ Union 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 organisation.

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

• Clause 24.1.5 – Notice of Termination.

• Clause 26.9.3 – Annual Leave.

• Clause 33.3.1 – Public Holidays.

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

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 October 2021. The nominal expiry date of the Agreement is 30 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by ISS Security Pty Ltd for approval of an enterprise agreement with the United Workers Union Melbourne Airport Agreement 2021. The parties contested various aspects of the agreement, including procedural fairness and compliance with legislative requirements. The Commission had to determine if the agreement met the necessary standards under the Fair Work Act 2009.

The legal issues central to the decision involved the procedural fairness in the negotiation and execution of the agreement, as well as its compliance with the provisions outlined in the Fair Work Act. ISS Security argued that the agreement was fairly negotiated and met all legislative requirements. Conversely, the union raised concerns about the process and certain terms of the agreement. The Commission needed to assess whether the agreement was made in good faith, free from coercion, and whether it contained the necessary minimum terms and conditions as stipulated by the Act.

In its decision, the Commission examined the evidence presented regarding the negotiation process and found that there were procedural irregularities. Despite this, the Commission determined that the overall agreement was still fair and met the legislative requirements. The union's concerns about specific terms were addressed, and the Commission concluded that the benefits of the agreement for the employees outweighed the procedural shortcomings. The Commission approved the agreement, emphasising the importance of procedural fairness in future negotiations.

The final order of the Commission was that the ISS Security Pty Ltd and United Workers Union Melbourne Airport Agreement 2021 be approved, with a directive for both parties to adhere to fair negotiation practices in future agreements. The Commission also mandated a review of the negotiation process within six months to ensure compliance with procedural fairness standards.

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