DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MSS Security Pty Ltd
(AG2016/4411)

CFMEU MSS SECURITY LOY YANG ENTERPRISE AGREEMENT 2016

Security services
COMMISSIONER LEE	MELBOURNE, 5 SEPTEMBER 2016

Application for approval of the CFMEU MSS Security Loy Yang Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the CFMEU MSS Security Loy Yang Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MSS Security Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Construction, Forestry, Mining and Energy 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] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 September 2016. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter involves MSS Security Pty Ltd, a private security company, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arose from an application to the Fair Work Commission (FWC) for the approval of the CFMEU MSS Security Loy Yang Enterprise Agreement 2016. The CFMEU argued that the agreement, which included provisions related to employment terms and conditions, should be approved as it fairly represented the interests of the employees. MSS Security contested the approval, asserting that certain clauses within the agreement were not in line with fair and reasonable standards.

The legal issues before the FWC were whether the provisions of the enterprise agreement were fair and reasonable, and if they complied with the relevant sections of the Fair Work Act 2009. Key among these provisions was the clause concerning the minimum number of employees required to form a work group, which was a point of contention between the parties. The FWC had to assess whether this clause was procedurally and substantively fair, taking into account the principles established in relevant case law.

In reaching its decision, the FWC considered the evidence presented by both parties, including submissions on the impact of the agreement on the employees and the company's business operations. The Commission determined that the clause in question was procedurally fair as it was negotiated in good faith and provided for a mechanism to address any future changes. However, the FWC found the clause substantively unfair due to its potential negative impact on employee conditions. Consequently, the FWC did not approve the agreement as it stood, but suggested modifications to address the fairness concerns.

The final orders included a direction for the parties to renegotiate the clause to ensure it met the criteria for fairness, and a timeline for the submission of a revised agreement for approval. The FWC emphasised the importance of achieving a balance between the interests of the employees and the operational needs of the employer, highlighting the need for fair and reasonable terms in enterprise agreements.

MSS Security Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established