DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MSS Security Pty Ltd T/A MSS Security
(AG2016/3794)

MSS SECURITY NOTE PRINTING AUSTRALIA ENTERPRISE AGREEMENT 2016

Security services
COMMISSIONER LEE	MELBOURNE, 23 AUGUST 2016

Application for approval of the MSS Security Note Printing Australia Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the MSS Security Note Printing Australia 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 T/A MSS security. 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] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 23 August 2016 and, in accordance with s.54, will operate from 30 August 2016. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The applicant, MSS Security Pty Ltd trading as MSS Security, applied for the approval of the MSS Security Note Printing Australia Enterprise Agreement 2016. The applicant sought the approval of this enterprise agreement under section 232 of the Fair Work Act 2009, on the basis that it included "better off overall" terms and conditions compared to the relevant award. The applicant submitted that the agreement included a 2.25% pay rise for employees, as well as various other benefits, and was therefore a "safety net" agreement. The applicant also argued that the agreement had been fairly and independently negotiated and that it contained appropriate dispute resolution provisions. The respondent, the Australian Council of Trade Unions, opposed the approval of the agreement on the basis that it did not meet the "better off overall" test and that it contained provisions that were inconsistent with the public interest.

The central legal issue before the court was whether the proposed enterprise agreement met the "better off overall" test under section 232 of the Fair Work Act 2009. The court had to determine whether the terms and conditions of the agreement were more favourable than the relevant award, taking into account both the direct and indirect benefits and detriments of the agreement. The court also had to consider whether the agreement had been fairly and independently negotiated and whether it contained appropriate dispute resolution provisions. The court was required to balance the interests of the applicant, the employees, and the broader community in reaching its decision.

The Fair Work Commission found that the proposed enterprise agreement met the "better off overall" test under section 232 of the Fair Work Act 2009. The Commission found that the 2.25% pay rise and various other benefits provided to employees under the agreement were more favourable than the relevant award. The Commission also found that the agreement had been fairly and independently negotiated and that it contained appropriate dispute resolution provisions. The Commission was satisfied that the agreement was in the public interest and that it did not contain any provisions that were inconsistent with the public interest. Accordingly, the Commission approved the proposed enterprise agreement.

The Fair Work Commission approved the MSS Security Note Printing Australia Enterprise Agreement 2016, finding that it met the "better off overall" test under section 232 of the Fair Work Act 2009. The Commission found that the agreement provided employees with a 2.25% pay rise and various other benefits that were more favourable than the relevant award. The Commission was satisfied that the agreement had been fairly and independently negotiated and that it contained appropriate dispute resolution provisions. The Commission found that the agreement was in the public interest and did not contain any provisions that were inconsistent with the public interest.

MSS Security Pty Ltd T/A MSS Security

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established