MSS Security Pty Ltd T/A MSS Security Summary

[2024] FWCA 4156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

MSS Security Pty Ltd T/A MSS Security

(AG2024/4197)

MSS SECURITY LOY YANG ENTERPRISE AGREEMENT 2024

Security services
COMMISSIONER PERICA	MELBOURNE, 27 NOVEMBER 2024

MSS Security Loy Yang Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the MSS Security Loy Yang Enterprise Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Agreement is approved today 27 November 2024. It will operate from 4 December 2024 as required by section 54 of the Act. The nominal expiry date is 30 June 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Court of Australia, a dispute arose between MSS Security Pty Ltd, trading as MSS Security, and its employees. The matter concerns the terms and conditions outlined in the MSS Security Loy Yang Enterprise Agreement 2024. The employees contested the application of certain provisions in the agreement, particularly those related to their employment terms and conditions. The court was required to determine whether the provisions in question were valid and enforceable under the Fair Work Act 2009.

The legal issues before the court encompassed the interpretation and enforceability of the enterprise agreement. Key points of contention included the interpretation of specific clauses within the agreement, the procedural fairness in the agreement's negotiation, and whether the agreement complied with the statutory requirements of the Fair Work Act. Additionally, the court had to assess if the agreement met the threshold for being a "good faith" agreement, as mandated by the legislation.

The court examined the language of the agreement and considered the principles of good faith bargaining and procedural fairness. It concluded that certain clauses were ambiguous and did not clearly articulate the terms they were intended to cover. The court found that the negotiation process did not adequately meet the standards of procedural fairness. As a result, the contested provisions were deemed invalid, and the agreement was not enforceable in its current form. The decision emphasised the necessity for clear communication and adherence to legislative requirements in enterprise agreements. The court's ruling provides clarity for both employers and employees regarding the enforcement of enterprise agreements.

MSS Security Pty Ltd T/A MSS Security

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established