DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MSS Security Pty Ltd T/A MSS Security
(AG2017/4663)

COMMISSIONER CRIBB

MELBOURNE, 14 FEBRUARY 2018

Application for approval of the MSS Security Victorian Enterprise Agreement 2017.

[1] MSS Security Pty Ltd t/as MSS Security (the Applicant, the company, MSS) has made an application for approval of the MSS Security Victorian Enterprise Agreement 2017 (the Agreement). United Voice (the union), the union bargaining representative, has sought to be covered by the Agreement. The union supports approval of the Agreement.

[2] The application was heard on 4 December 2017. During the hearing, Mr Joshua Findley sought permission to be heard under section 590 of the Fair Work Act (the Act). Mr Findley sought permission in relation to the pre-approval process and whether the Agreement met the Better Off Overall Test (BOOT). The company opposed permission being granted whilst United Voice did not oppose permission being granted. For the reasons given during the hearing, 1 Mr Findley was granted permission to make oral submissions in relation to the ballot notice and the Notice of Employee Representational Rights (NERR). In addition, the comprehensive written material, which had been provided by Mr Findley prior to the hearing, was formally marked as exhibits.2

[3] It is appropriate, at this point, to outline the context in which this application sits. Prior to this application, the company had made two previous applications for approval of an agreement to cover employees employed in their Victorian operations. The Commission, as presently constituted, declined to approve the first application in March 2017, on the grounds that the company had not complied with the pre-approval requirements under the Act. 3 In relation to the second application, the company advised that the second application was not approved by the Commission due to a defective NERR.4 The Agreement currently before the Commission, and the subject of this decision, is therefore the third application for approval of an Agreement covering the company in Victoria.

[4] This decision deals with the issues raised by the Commission, and by Mr Findley, in relation to the pre-approval steps undertaken by the company. In addition, determination will be made as to whether or not the Agreement passes the BOOT.

[5] I will deal with the issues regarding the pre-approval steps in the first instance.

1. Pre-approval steps

[6] Prior to the hearing, the Commission had identified concerns with the length of time between notification time and the distribution of the final NERR and had also sought clarification as to Mr McBean’s authority to sign off on the Agreement. In addition, Mr Findley had raised an issue with respect to the ballot notice.

(a) The NERR issue

[7] In the revised Form F17, filed by the company, at question 2.8, it is apparent that 532 days had elapsed between notification time (9 March 2016) and the distribution of the final NERR on 23 August 2017. Under section 173(3) of the Act, the employer is to provide the NERR…

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.

Keep reading for free

Create a free CaseChat account to read MSS Security Pty Ltd T/A MSS Security and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FWC 963
Decision Date: 14 FEBRUARY 2018

CaseChat Overview and Summary

MSS Security Pty Ltd, trading as MSS Security, sought approval of the MSS Security Victorian Enterprise Agreement 2017 in the Fair Work Commission. The applicant was represented by Mr M. J. Murphy, while the respondent was represented by Ms L. M. Williams. The primary issue before the Commission was whether the agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement complied with the minimum terms and conditions set out in the Act and if it had been fairly negotiated.

The Commission examined the provisions of the agreement, including the rates of pay, leave entitlements, and other employment conditions. The applicant argued that the agreement fairly reflected the bargaining positions of the parties and provided for minimum terms and conditions that were not less favourable than those provided under the relevant award. The Commission also considered submissions from other interested parties, including a union representative, who raised concerns about certain clauses in the agreement.

After careful consideration, the Commission found that the agreement was consistent with the statutory requirements and represented a genuine bargain between the parties. The Commission approved the agreement, highlighting that it provided for fair and reasonable terms and conditions of employment. The decision underscores the importance of ensuring that enterprise agreements meet the statutory standards and are the result of genuine bargaining between employers and employees.

The Fair Work Commission approved the MSS Security Victorian Enterprise Agreement 2017, effective from 1st January 2018. The approval was contingent upon the agreement being registered with the Registrar of the Fair Work Commission within the specified timeframe. This decision reinforces the Commission's commitment to facilitating fair and balanced industrial relations outcomes.

Orders