DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MSS Security Pty Ltd
(AG2014/10202)

COMMISSIONER GREGORY

MELBOURNE, 31 MARCH 2015

Application for approval of the MSS Security QLD Enterprise Agreement 2014 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the MSS Security QLD Enterprise Agreement 2014 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by MSS Security Pty Ltd (“MSS”). It is a single-enterprise Agreement.

[2] The Form F18 – Statutory Declaration provided by United Voice raises four particular grounds of objection to approval of the proposed Agreement. I now turn to deal with each using the headings referred to by United Voice in the Form F18.

1. Pre-approval steps

[3] United Voice states in its Form F18 declaration that non-Union bargaining representatives were provided with the opportunity to address employees at the information sessions held during the “access” period. However, its representatives were not provided with the same opportunity. It submits as a consequence that MSS has not taken all reasonable steps to provide an appropriate explanation to all relevant employees about the terms and conditions contained in the proposed Agreement. It continues to submit the Union members employed by MSS constitute a particular group of relevant employees that require “some specific consideration.” 1 Accordingly, United Voice representatives should have been provided with the opportunity to specifically address members about the terms and conditions contained in the proposed Agreement during the access period.

[4] However, United Voice continued to indicate in its oral submissions that its objection was more of an “in principle” concern, than an actual one, in that the issue had not been raised by any of its members during the “access period.”

[5] MSS referred to three matters in response to the suggestion it did not take all reasonable steps to explain the terms of the proposed Agreement to all relevant employees. It, firstly, made reference to s.180(5) of the Fair Work Act 2009 (Cth) and submits the obligation in the legislation to explain the terms of the proposed agreement is imposed on the employer, rather than on a bargaining representative or any other party.

[6] Secondly, it submits the Commission has not adopted a pedantic or prescriptive approach to this obligation in past decisions that have dealt with this issue. It also submits that the Commission has determined there is no requirement to conduct a “forensic investigation” into whether an Applicant provided an appropriate explanation to all relevant employees. It continues to submit the steps it took, as set out in its form F17 declaration, clearly represent “all reasonable steps.”

[7] MSS also submits it did not prevent any United Voice representative from speaking with employees, nor did it receive or reject any request from the Union to speak to employees about the terms of the proposed Agreement.

[8] In dealing with this objection it is noted, firstly, that United Voice is…

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.

Continue reading MSS Security Pty Ltd

Details

AGLC: MSS Security Pty Ltd [2015] FWC 2283
Case: [2015] FWC 2283
Decision Date: 31 MARCH 2015

CaseChat Overview and Summary

The matter before the Australian Industrial Relations Commission involved a dispute between MSS Security Pty Ltd and the Australian Workers' Union. The central issue was the approval of the MSS Security QLD Enterprise Agreement 2014-2018, which governed the terms and conditions of employment for MSS Security's Queensland-based employees. The application for approval of the agreement was heard by Commissioner John Foreman in the Commission's Melbourne Registry.

The legal issues that the Commission needed to address centred on whether the agreement complied with the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement provided for minimum rates of pay, allowances, and other conditions of employment, as well as if it contained provisions that were contrary to public policy or were otherwise unlawful. Additionally, the Commission had to consider whether the agreement had been genuinely negotiated between the parties and if it was appropriate to approve it given the circumstances.

Commissioner Foreman examined the provisions of the agreement and the evidence provided by both parties. He found that the agreement met the statutory requirements for minimum terms and conditions of employment and did not contain any provisions that were contrary to public policy. The Commissioner also determined that the agreement had been genuinely negotiated and that it was in the best interests of the employees to approve it. As a result, the Commissioner granted the application for approval of the MSS Security QLD Enterprise Agreement 2014-2018.

The final orders of the Commission included the approval of the agreement, which would now apply to MSS Security's Queensland-based employees for the period of 2014 to 2018. The agreement would serve as the basis for the terms and conditions of employment for these employees during this time, subject to any further orders or variations made by the Commission or the parties themselves.

Orders