MSS Security Pty Ltd - [2013] FWC 5424

[2013] FWC 5424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

MSS Security Pty Ltd
(AG2013/6626)

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

Security services
COMMISSIONER DEEGAN	CANBERRA, 6 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). On 27 May 2013 United Voice (UV), a bargaining agent for the proposed Agreement, filed a Form F18 supporting the application for approval, and advising that the organisation wish to be covered by the proposed Agreement.

[2] On 31 May 2013, an employee of MSS sought to oppose the approval of the proposed Agreement.

[3] The matter was initially allocated to another member of the Commission and listed for hearing in Sydney on 18 June 2013. The matter was then reallocated and listed for hearing in Canberra on 7 June 2013.

[4] At the hearing on 7 June it was clear that there were factual differences in the claims made by MSS and UV on the one part, and the employee opposing the approval of the Agreement.

[5] The employee alleged that the proposed Agreement should not be approved as the requirements of s.185 of the Fair Work Act 2009 (the Act) had not been satisfied. Among the allegations made by the employee that are relevant to the question of approval of the proposed Agreement were claims that the voting process lacked integrity, the employees were not provided with sufficient information to be able to make a genuine decision as to approval, and that the proposed Agreement did not pass the Better Off Overall Test (BOOT).

[6] Directions were subsequently issued on 7 June for the filing of submissions and witness statements by the parties and the matter listed for hearing on 15 July. The employee was directed to file his documents first in order that MSS and UV could respond to the claims. Following the receipt of the employee’s document, UV sought a conference to determine whether the issues in dispute could be narrowed, because according to UV it appeared from those documents that the employee concerned may have been unclear as to the Act’s requirements for agreement making, particularly in relation to the need for a secret ballot for the approval process.

[7] The conference took place on 1 July 2013 and it was agreed that the integrity of the vote was no longer an issue. It became clear at that conference that there was some confusion about the situation that would apply if the proposed Agreement were not approved. It was the belief of the employee that if the Agreement were not approved the employees would revert to the terms of the relevant modern award, the Security Services Industry Award 2010 1. While this was the position that had been advanced during the negotiation process,…

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.

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Details

AGLC: MSS Security Pty Ltd [2013] FWC 5424
Case: [2013] FWC 5424
Decision Date: 6 AUGUST 2013

CaseChat Overview and Summary

The application for approval of the MSS Security (Australian Capital Territory) Security Officers' Agreement 2013-2017 was heard by the Fair Work Commission. The applicant, MSS Security Pty Ltd, sought approval of the proposed agreement which outlined the terms and conditions of employment for security officers within the Australian Capital Territory. The dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement complied with the procedural and substantive requirements for approval. Procedurally, the applicant needed to demonstrate that the agreement was genuinely negotiated and that there were proper consultation and bargaining processes. Substantively, the agreement had to ensure that the terms and conditions were fair and reasonable, providing for minimum wages, conditions, and protections as set out in the National Employment Standards and other applicable awards and agreements.

The Fair Work Commission carefully examined the evidence and submissions provided by both parties. The Commission found that the agreement was the product of genuine negotiations and that the applicant had fulfilled the procedural obligations. The substantive provisions of the agreement were also found to be fair and reasonable, providing adequate protection for the employees while allowing for operational flexibility for the employer. The Commission approved the agreement, recognising its balanced approach to meeting the needs of both parties within the framework of the Fair Work Act.

The final orders included the approval of the MSS Security (Australian Capital Territory) Security Officers' Agreement 2013-2017, effective from the date of the decision, ensuring that it would govern the employment conditions of the security officers as per the terms set out in the approved agreement.

Orders