MSS Security Pty Ltd T/A MSS Security
[2023] FWCA 1115
•21 APRIL 2023
| [2023] FWCA 1115 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
MSS Security Pty Ltd T/A MSS Security
(AG2023/302)
MSS SECURITY VICTORIAN ENTERPRISE AGREEMENT 2021
| Security services | |
| COMMISSIONER LEE | MELBOURNE, 21 APRIL 2023 |
Application for approval of the MSS Security Victorian Enterprise Agreement 2021
An application has been made for approval of an enterprise agreement known as the MSS Security Victorian Enterprise Agreement 2021 (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.
The Employer 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. The undertakings are taken to be a term of the agreement.
Casual voting cohort
On 1 March 2023 my Chambers sent correspondence to the Applicant regarding issues identified in the pre approval process for the proposed enterprise agreement. One of these issues was the casual voting cohort. Q26 of the Form F17 indicated that at the time of the vote, 1362 employees were covered by the agreement, 718 employees cast a valid vote and 434 employees voted to approve to Agreement. Q6 of the Form F17 indicates that there were 468 casual employees covered by the Agreement. I provided the Applicant an opportunity to provide further information regarding how many casual employees included in the voting cohort were employed at the time of the access period with reference to the Appeal by Kmart Australia Limited t/a Kmart and others.[1]
On 8 March 2023 the Applicant responded to the concern providing the CiVS breakdown of result and indicated “During the access period we have had 176 casuals who were engaged on shifts. During the voting period we have had ~200 casuals”
On 15 March 2023 further correspondence was sent to the Applicant indicating that the response provided is not clear and therefore does not resolve the concern raised. I again was seeking further information regarding how many casual employees were employed at the time of voting as defined in National Tertiary Education Industry Union v Swinburne University of Technology.[2] Further, I was seeking clarification regarding how many, if any of the 468, casual employees were not employed at the relevant time.
On 17 March 2023 the Applicant responded to the concern providing the CiVS breakdown of result and indicated “we will not be able to answer the above precisely because we do not have insight into who cast the vote individually. We have the following results categorised by the independent voting company, CiVS.”
I was not satisfied with the response provided and the matter was listed for Hearing on Thursday, 23 March 2023.
On 27 March 2023 my Chambers sent directions to the parties directing the Applicant to file in the Commission and serve on the United Workers' Union, an outline of submissions and any witness statements and other documentary material on which the Applicant intends to rely on by no later than 5.00pm, Friday, 7 April 2023. The United Workers' Union were directed to file in the Commission and serve on the Applicant, an outline of submissions and any witness statements and other documentary material on which the United Workers' Union intends to rely on by no later than 5.00pm, Friday, 21 April 2023.
On 6 April 2023, The Applicant lodged an outline of submissions, witness statements and exhibits. The submissions made by the Applicant, in short, indicated the following:
“468 casual employees were able to cast a vote.[3] However, only 177 of those 468 casual employees worked (and thus were employed) during the “Access Period” (which is seven days prior to the vote in accordance with section 180(4) of the FW Act) (the Eligible Casuals).[4] Following the Full Bench decision in Kmart[5] and the Full Court decision in NTEIU v Swinburne University of Technology,[6] casual employees need to be employed during the Access Period in order to be eligible to vote for the Enterprise Agreement.[7]”[8]
“Even though some casual employees who were not eligible to vote for the Enterprise Agreement participated in the vote, the vote can be accurately corrected by the removal by CiVs of all casuals, except the 177 Eligible Casuals.”[9]
“The Commission can assess the results of the vote and conclude, for the purposes of section 186(2)(a) of the FW Act, that the Enterprise Agreement was genuinely agreed to by the employees who were legally eligible to vote for the Enterprise Agreement.”[10]
The witness statement of Bhoomika Bharti, State Manager Operational Performance at MSS Security indicated:
“On 4 April 2023, Mike Michael of CiVS emailed to me a revised declaration of the result. The revised declaration shows that the Enterprise Agreement was approved with 389 votes out of 647 votes cast. This means that the Enterprise Agreement was approved with 60.12% of votes cast when only the Ineligible Casuals were excluded from the vote.”[11] See Exhibit BB-10 for CiVS’ email in reply to my email of 3 April 2023, and the attachment to that email, Exhibit BB-10A, is entitled the “Revised Declaration of Result”.
On 12 April 2023 the United Workers' Union emailed my chambers indicating:
“In light of the applicant’s submissions and materials filed on 7 April 2023 (in particular, the Declaration of Results from CiVS dated 4 April 2023, marked “Exhibit BB-10”), we wish to advise the Commission that the UWU does not intend to file and serve any outline of submissions, witness statements or other documentary material in relation to the pre-approval issues, and instead relies on its Form F18 dated 13 February 2023. “
I accept the evidence of the Applicant providing the CiVS revised declaration of the results which indicates out of the 647 employees who cast a valid vote, 389 of those employees’ case a vote to approve the agreement, and therefore, there is a majority vote to approve the agreement for the purposes of section 186(2)(a) of the Act.
Employee concerns
February 2023 Mr Allan Smith sent an email to the Commission raising concerns with the Agreement. In summary these concerns were in relation to the provisions in the Agreement which provide for different rates of pay for employees depending on whether they are a “new employee” (employed after 8 March 2013) and employed at a new site (also defined by reference to the date of 8 March 2013).[12] Mr Smith made the following submissions on the point:
“Currently permanent full time employees (security guards) in Victoria are being asked to sign contracts at new employee rates or new site rates even when they’ve been with MSS for more than 30 years and been at sites for more than 10 years respectfully. And employees being told that if they don’t sign these contracts, they won’t have a job.”
“employees (security guards) are working side by side doing the same work, but on different pay scales”
Mr Smith notes that the Agreement in this respect is similar to the two previous agreements that applied to the employees. Mr Smith invited me to “take the time to have a closer look at this agreement with a view of removing the above clauses and definitions, and the two-tier pay classification to ensure MSS Security employees (security guards) get a fair go and businesses like MSS Security play by the rules and don’t deliberately break the law to try and get a competitive advantage either by underpaying or disadvantaging its employees.” Mr Smith made other claims as to the conduct of MSS that are not relevant to this application for approval of the Agreement.
Mr Smith’s concerns were raised with the Applicant and on 8 March 2023 the Applicant provided submissions indicating:
“Mr. Allan Smith has been the independent employee bargaining representative since the start of the negotiation process back in 2021. He then, (time unknown), joined UWU as one of the delegates. Mr. Smith has been part of the whole bargaining negotiation process and have attended most of the meeting. The issues raised by Mr. Smith although are not new or unknown to the company but are surprising considering Mr. Smith involvement in the process and having addressed the issues internally.”
I have considered the concerns of Mr Smith and the submissions provided by the Applicant. It is not unusual for differentiated rates of pay and/or conditions for employees employed before a particular time to be made. The relevant consideration is whether all rates of pay provided in the Agreement, combined with the other terms and conditions of employment are such as to satisfy the Commission that employees are better off overall. I am satisfied of that fact in respect to this application, taking into account the undertakings that have been made to satisfy my concerns on various matters. The matters raised by Mr Smith may relate to the way in which the Agreement is being applied in the workplace. However, I am not satisfied that any of the concerns raised are relevant considerations regarding the statutory requirements of approving an enterprise Agreement.
On 14 April 2023 my Chambers sent an email to parties stating:
“Commissioner Lee is content to determine the matter on the papers and proposes to cancel the hearing unless any party wishes to be heard.
If any party wishes to be heard please advise Chambers by close of business, Wednesday, 19 April 2023.”
No correspondence was received by Chambers indicating that any party wished to be heard further in the matter.
Subject to the undertakings referred to in paragraph 2, 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.
The United Workers' Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.
I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):
· Clause 10.1.4 – Termination of Employment
· Clause 10.2.1 – Termination of Employment
However, noting clause 3.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 April 2023. The nominal expiry date of the Agreement is 30 June 2025.
COMMISSIONER
Annexure A
[1] [2019] FWCFB 7599.
[2] [2015] FCAFC 98.
[3] Exhibit BB-4 and Witness statement of Bhoomika Bharti at [20].
[4] Witness statement of Bhoomika Bharti at [21].
[5] Re Shop, Distributive and Allied Employees Association [2019] FWCFB 7599 (Kmart).
[6] NTEIU v Swinburne University of Technology (2015) FCAFC 98 (Swinburne).
[7] Kmart [33] and Swinburne [17].
[8] Applicant’s outline of Submissions at [9].
[9] Ibid at [10].
[10] Ibid at [11].
[11] Witness statement of Bhoomika Bharti at [38]
[12] Clauses 5.10, 5.11, 5.12 and 5.13 of MSS Security Victorian Enterprise Agreement 2021.
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