MSS Security Pty Limited T/A MSS Security v United Voice

[2012] FWA 7136

[2012] FWA 7136

FAIR WORK AUSTRALIA

RECOMMENDATION

Fair Work Act 2009
s.240—Bargaining dispute

MSS SECURITY PTY LIMITED T/A MSS SECURITY
v
United Voice
(B2011/3003)

COMMISSIONER LEWIN MELBOURNE, 21 AUGUST 2012

[1] This recommendation concerns a dispute between United Voice, as a bargaining agent for employees of MSS Security Pty Limited (MSS) employed as security officers, and MSS, concerning a proposed enterprise agreement. The parties have been bargaining for the making of an enterprise agreement since prior to the expiry of the MSS Security and LHMU Victorian Security Industry Enterprise Agreement 2009 on 30 June 2011. Those negotiations have been fraught and have been the subject of proceedings before the Tribunal at various times in a range of circumstances.

[2] The bargaining representatives of the parties have reached an impasse. Employees of MSS have been taking protected industrial action in relation to the proposed agreement.

[3] On 6 August 2012 United Voice sought to refresh an application made under s.240 of the Fair Work Act 2009 (the Act) by Mr Ross Levin, the bargaining representative for MSS, on 17 June 2011. That matter was last dealt with by the Tribunal on 4 May 2012. No communication in relation to further proceedings under s.240 had been received by the Tribunal in the meantime.

[4] The application was listed for conference on 20 August 2012 as a result of the request of United Voice.

[5] At the conference the Assistant Secretary of United Voice, Mr Ben Redford, submitted that, among other things, MSS and their bargaining representative were not adequately engaging in bargaining for the proposed agreement. Mr Redford described the behaviour of MSS and its bargaining representative as ‘surface bargaining’. By this, Mr Redford can be understood to mean that MSS had substantively disengaged from the bargaining process, which United Voice considers it was obliged to engage in under the Act.

[6] While not concluding that MSS was engaging in ‘surface bagaining’ the Tribunal nevertheless made a recommendation to the parties that an intensive bargaining conference take place, which would be presided over by the Tribunal, involving a small group of high level representatives of the parties. The conference would take place over up to two days. The object would be to explore the possibility of reaching agreement on all items in relation to the proposed enterprise agreement, to the point that United Voice would be able to recommend and support the approval of an enterprise agreement on the agreed terms by the employees of MSS.

[7] The representatives of both parties indicated their approval of this course of action, subject to confirmation of instructions and authorisation. The conference therefore concluded optimistically and the Tribunal anticipated that the next step would be to arrange the scheduling of the conference.

[8] It should be clear that the Tribunal’s intention was to facilitate a high level of engagement in relation to the proposed enterprise agreement. This was clearly a response to United Voice’s request at the s.240 conference and their desire for greater engagement from MSS in relation to bargaining. Given the impasse that the parties had reached and an obvious break down in their relationship the Tribunal was also attempting to establish an atmosphere of trust and confidence necessary for the proposed bargaining conference to have any prospects of success.

[9] Almost immediately after the conference conducted on 20 August 2012 the Tribunal was informed by MSS that United Voice had just advised MSS of an intention to file a notice authorising industrial action by its members against MSS, in relation to the proposed enterprise agreement.

[10] This can only be described as an extraordinary development. The Tribunal was subsequently informed by Mr Redford that the decision to file a notice authorising the industrial action had been made prior to the s.240 conference conducted by the Tribunal. The Tribunal recommended to Mr Redford that he should withdraw the notice, as it would not only defeat the purpose of the Tribunal’s activity in the s.240 conference but also, in the judgement of the Tribunal, would defeat the purpose of the Union to foster engagement between the bargaining representatives of the parties for the making of the proposed agreement. Regrettably, that recommendation was not followed. The notice was duly filed.

[11] It is necessary to record the Tribunal’s astonishment that Mr Redford’s decision and intention to file a notice authorising industrial action was not mentioned during the s.240 conference conducted at the request of United Voice. The effect was that when the intention to file a notice authorising industrial action was subsequently advised to MSS, immediately after the conclusion of the conference, the work of the Tribunal attempting to restore an effective bargaining relationship was undermined.

[12] In the interests of repairing the damage I consider has been caused to the bargaining process for the proposed agreement by this sequence of events I intend to refrain from making any further comment about it.

[13] In my judgement, good will must be restored in light of the damage that has been caused to the process of engagement between the parties which the Tribunal has sought to foster. It is therefore my recommendation, now formally recorded, that United Voice withdraw the notice authorising industrial action and that the employees of MSS refrain from taking industrial action in order for the bargaining to proceed by way of the conference which was recommended to the parties by the Tribunal on the afternoon on 20 August 2012.

[14] I direct that MSS ensure that all employees whose employment would be covered by the proposed enterprise agreement be provided with a copy of this recommendation.

COMMISSIONER

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