MSS Security Pty Ltd

[2013] FWC 5937

[2013] FWC 5937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MSS Security Pty Ltd
(AG2013/6626)

MSS SECURITY (AUSTRALIAN CAPITAL TERRITORY) SECURITY OFFICERS' AGREEMENT 2013-2017

Security services
COMMISSIONER DEEGAN	CANBERRA, 20 AUGUST 2013

Application for approval of the MSS Security (Australian Capital Territory) Security Officers’ Agreement 2013-2017.

[1] On 24 May 2013 MSS Security Pty Ltd (MSS) sought approval of the MSS Security (Australian Capital Territory) Security Officers’ Agreement 2013-2017 (the proposed Agreement). By a decision ([2013] FWC 5424) dated 6 August 2013 I refused to approve the proposed Agreement but invited MSS to submit any undertakings it was prepared to make in order that the proposed Agreement could be approved. I also indicated that if MSS was not able to provide undertakings such that the proposed Agreement can be approved then, should a request be made, I will hear any submissions made in relation s.189 of the Fair Work Act 2009 (the Act).

[2] MSS provided the undertakings it was prepared to make on 13 August 2013. These undertakings were provided to the bargaining representatives and to those persons who had objected to the approval of the proposed Agreement. On 19 August 2013, a short hearing occurred to determine the views of the bargaining representatives and other interested parties.

[3] The undertakings that MSS was prepared to make dealt with the operation of the Optional Extra Pay (OEP) provisions of the proposed Agreement. MSS undertook to restrict the operation of those provisions so that no OEP could be worked on a weekend or public holiday. MSS was also prepared to give an undertaking that would ensure that all employees are aware that participation in the OEP scheme is voluntary and are fully informed, at the time of employment, about the voluntary nature of the scheme. Further, the company was prepared to ensure that it is clear to prospective employees that their participation in the scheme is not a condition of employment.

[4] Despite these undertakings and the voluntary nature of the OEP scheme, I cannot be satisfied that the proposed Agreement passes the BOOT. Clearly any employee participating in the OEP could work overtime hours for a lesser rate than that applicable under the relevant modern award 1. Hours worked Monday to Friday may attract a 100% penalty in some circumstances where an employee working OEP for those hours would be paid a lesser rate (50%). The base rate of pay under the proposed Agreement is the award rate and the other benefits provided by the proposed Agreement are insufficient to compensate sufficiently for the difference in penalty rates.

[5] Despite a concern that my decision to refuse to approve the proposed Agreement may impact detrimentally on some MSS employees, I do not consider that I have any option. Given the terms of the Full Bench decisions referred to in my decision of 6 August, I am unable to take into account any rostering decisions that MSS might make in the future when determining whether a proposed Agreement passes the BOOT.

[6] In these circumstances, I refuse to approve the proposed Agreement.

[7] If MSS wishes to make any submissions requesting approval pursuant to s.189 of the Act, a request for a further hearing must be made by 12 noon Thursday, 22 August 2013 and a hearing will be listed for Friday 23 August 2013.

COMMISSIONER

Appearances on 19 August 2013:

Ms M. Travis and Mr D. Cheatham, for the Applicant.

Ms L. Ryan and Ms E. Creswell, for United Voice.

Mr W. Thomsen, employee bargaining representative.

No appearance on behalf of the Objectors.

Hearing details:

2013.

Canberra:

June 7

July 15, 18.

August 19.

 1   MA000016 Security Services Industry Award 2010

Printed by authority of the Commonwealth Government Printer

<Price code A, PR540504>