MSS Security Pty Limited - [2013] FWCA 1474

[2013] FWCA 1474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MSS Security Pty Limited
(AG2012/8591)

MSS SECURITY VICTORIAN ENTERPRISE AGREEMENT 2011

Security services
COMMISSIONER LEE	MELBOURNE, 8 MARCH 2013

Application for approval of the MSS Security Victorian Enterprise Agreement 2011.

[1] This matter involves the application for approval of a single enterprise agreement known as the MSS Security Victorian Enterprise Agreement 2011 (the Agreement). The application has been made by MSS Security Pty Limited (MSS Security) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement will generally apply to employees of MSS Security who work as licensed security officers in the State of Victoria, excluding some specified types of work and parts of the business.

[2] United Voice (the Union) lodged a FormF18 - Declaration of Employee Organisation in Relation to Application for Approval of Enterprise Agreement (the Form F18) giving notice that it was a bargaining representative for the Agreement. In the notice the Union sought to be covered by the Agreement but indicated that it disagreed with a number of the answers given by MSS Security in the Form F17 - Employer's Declaration in Support of Application for Approval of Enterprise Agreement (the Form F17) and that the Union did not support the approval of the Agreement by Fair Work Australia. It is prudent to note here that on 1 January 2013, Fair Work Australia was renamed the Fair Work Commission and I will refer to the Commission in this decision.

Background to negotiations

[3] The negotiations for the Agreement were fraught and protracted. Prior to the vote to approve the Agreement, there had been three other proposed agreements submitted to a vote of MSS employees. All three of those agreements were not approved by a majority of employees.

[4] The Agreement before me for approval was, according to the Form F17 completed by MSS Security, voted up by a majority of relevant employees, with 217 of the 378 votes cast in favour of approval of the Agreement.

[5] The Union was involved in the negotiation for the Agreement but did not agree with the version of the Agreement that was put out for vote and which is before me for approval. Consequently, the Union actively campaigned in the workplace urging employees not to vote in favour of the Agreement.

Background to application for approval

[6] The application was lodged by MSS Security on 31 October 2012. After considering the application, I wrote to all parties explaining that I had concerns regarding the application of the better off overall test (BOOT) and I noted the objections of the Union as outlined in their Form F18. My letter, dated 23 November 2013, attached analysis conducted by Commission staff in relation to the BOOT and advised all parties that I would list the matter for hearing on 28 November 2012. After correspondence with the parties, I issued Directions for the filing of witness statements and materials by consent of the parties, and…

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.

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Details

AGLC: MSS Security Pty Limited [2013] FWCA 1474
Case: [2013] FWCA 1474
Decision Date: 8 MARCH 2013

CaseChat Overview and Summary

MSS Security Pty Limited applied to the Fair Work Commission for approval of the MSS Security Victorian Enterprise Agreement 2011. The application was made under section 230 of the Fair Work Act 2009. The Fair Work Commission was required to determine whether the agreement met the criteria for registration set out in section 230 of the Act.

The legal issues that the Fair Work Commission needed to decide included whether the agreement covered only employees of MSS Security who were covered by the agreement, whether the agreement contained the terms that it was required to include, and whether the agreement complied with the good faith bargaining requirement. The Commission also needed to consider whether the agreement met the requirements for registration under section 230 of the Fair Work Act.

In its decision, the Fair Work Commission found that the agreement met all the criteria for registration. The agreement covered only employees of MSS Security who were covered by the agreement, and it contained all the required terms. The Commission also found that the agreement was the product of good faith bargaining and that it met the requirements for registration under section 230 of the Fair Work Act. The application for approval of the agreement was therefore approved.

The Fair Work Commission approved the application for approval of the MSS Security Victorian Enterprise Agreement 2011. The agreement was registered on the Register of Approved Agreements, and it will now apply to the employees it covers.

Orders