MSS Security Pty Limited, T/A MSS Security Summary

[2025] FWCA 1231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

MSS Security Pty Limited, T/A MSS Security

(AG2025/12)

MSS SECURITY ESSO GIPPSLAND SITES SECURITY OFFICERS ENTERPRISE AGREEMENT 2024

Security services
COMMISSIONER MIRABELLA	MELBOURNE, 14 APRIL 2025

Application for approval of the MSS Security ESSO Gippsland Sites Security Officers Enterprise Agreement 2024

MSS Security Pty Limited, T/A MSS Security, (the Employer) has made an application for approval of an enterprise agreement known as the MSS Security ESSO Gippsland Sites Security Officers Enterprise 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 10 May 2024 and the Agreement was made on 16 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and 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, 188 and 190, 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 27: Compassionate leave

Clause 36: Abandonment of employment

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54, will operate from 21 April 2025 (7 days after agreement is approved). The nominal expiry date of the Agreement is 30 June 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, MSS Security Pty Limited, trading as MSS Security, was involved in an application seeking approval for the MSS Security ESSO Gippsland Sites Security Officers Enterprise Agreement 2024. The application was lodged by MSS Security, and the respondent was the Australian Council of Trade Unions, which raised objections to the proposed agreement. The nature of the dispute centred on the terms and conditions set forth in the enterprise agreement, which sought to regulate the employment of security officers at specific ESSO Gippsland sites.

The legal issues before the court revolved around whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009. Specifically, the court had to determine if the agreement provided for the minimum entitlements as stipulated in the Act, including minimum wages, penalty rates, leave entitlements, and other relevant conditions. Furthermore, the court examined whether the agreement adhered to the procedural requirements for the approval of enterprise agreements, such as ensuring that the agreement had been fairly negotiated and appropriately certified by the relevant authority.

In its reasoning, the court evaluated the provisions of the proposed agreement against the statutory benchmarks and procedural mandates outlined in the Fair Work Act 2009. It considered the submissions from both parties and assessed the agreement's compliance with the minimum entitlements and procedural fairness. Ultimately, the court found that the agreement met the statutory requirements and was fairly negotiated. Consequently, the application for approval of the MSS Security ESSO Gippsland Sites Security Officers Enterprise Agreement 2024 was approved.

MSS Security Pty Limited, T/A MSS Security

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established