MSS Security Pty Ltd T/A MSS Security

[2023] FWCA 233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

MSS Security Pty Ltd T/A MSS Security

(AG2022/5323)

MSS SECURITY VICTORIAN AVIATION SECURITY EMPLOYEES ENTERPRISE AGREEMENT 2021

Security services
DEPUTY PRESIDENT MASSON	MELBOURNE, 24 JANUARY 2023

Application for approval of the MSS Security Victorian Aviation Security Employees Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the MSS Security Victorian Aviation Security Employees 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.

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.

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.

The Transport Workers’ Union of Australia and the United Workers’ Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 February 2023. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, MSS Security, sought approval of the MSS Security Victorian Aviation Security Employees Enterprise Agreement 2021 from the Fair Work Commission. The application was contested by the respondents, who argued that the agreement failed to comply with various provisions of the Fair Work Act 2009. The Commission was tasked with determining whether the agreement met the requirements for approval under the Act.

The legal issues before the Commission included whether the agreement complied with the provisions relating to genuine agreement, disclosure, and the best-interests-of-employees test. The respondents raised concerns about the process by which the agreement was negotiated and whether it was genuinely agreed upon by both parties. They also argued that the agreement failed to adequately disclose certain terms and conditions and did not sufficiently protect the best interests of employees.

The Commission found that the agreement was genuinely agreed upon by both parties and that the negotiation process was fair and transparent. The Commission determined that the agreement contained all necessary disclosures and that it met the best-interests-of-employees test. Consequently, the application was approved, and the agreement was registered.

The Fair Work Commission approved the MSS Security Victorian Aviation Security Employees Enterprise Agreement 2021, finding that it met all requirements for approval under the Fair Work Act 2009. The Commission found the agreement to be genuinely agreed upon, adequately disclosed, and in the best interests of the employees. The agreement was subsequently registered, and the application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established