MSS Security Pty Ltd T/A MSS Security

[2021] FWCA 1254

[2021] FWCA 1254

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
(AG2020/4153)

MSS SECURITY ENTERPRISE AGREEMENT (QLD) 2020 - 2024

Security services
COMMISSIONER BOOTH	BRISBANE, 9 MARCH 2021

Application for approval of the MSS Security Enterprise Agreement (QLD) 2020 - 2024.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by MSS Security Pty Ltd T/A MSS Security (the Applicant) for approval of MSS Security Enterprise Agreement (QLD) 2020 - 2024 (the Agreement). The Agreement is a single enterprise agreement.

[2] Lyndal Ryan, Director of the United Workers Union (UWU) filed a Form F18 in this matter, advising that the UWU supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it.

[3] Correspondence was sent to the Applicant on 27 January 2021, raising certain concerns in relation to the Agreement and seeking responses and undertakings from the Applicant. The Applicant filed submissions and undertakings addressing the concerns raised on 12 February 2021 and 16 February 2021. The UWU and employee bargaining representatives were provided with copies of the response and proposed undertakings.

[4] The matter was listed for eHearing on 8 March 2021. Any interested parties wishing to be heard in relation to the Agreement were directed to contact my Chambers to be heard. No parties contacted my Chambers.

[5] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[6] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 5.3.7 – Evidence Requirements

•  Clause 5.1.1 – Annual Leave

•  Clause 5.1.4 – Annual Leave

•  Clause 5.2(b) – Public Holidays

•  Clause 5.9 – Unpaid Leave

•  Clause 2.4.3(d) – Notice by Employer

•  Clause 2.7.7(a) – Employees exempted

•  Clause 2.5.3 – Abandonment of Employment

•  Clause 3.1.5(g) – Casual entitlements

[7] However, noting the NES precedence clause at clause 1.5 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.

[8] It is also noted that the consultation term at clause 6.11 does not appear to be consistent with the requirements of the Act. Accordingly, the model consultation term set out in the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] Subject to the matters raised at paragraphs [2]-[8], I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[10] In accordance with s.201(2), I note that the Agreement covers the UWU.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 9 March 2025.

COMMISSIONER

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Attachment A.