MSS Security Pty Ltd T/A MSS Security

[2021] FWCA 1123

[2021] FWCA 1123

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
(AG2020/3867)

MSS SECURITY AVIATION QLD ENTERPRISE AGREEMENT 2020 - 2023

Security services
DEPUTY PRESIDENT ASBURY	BRISBANE, 2 MARCH 2021

Application for approval of the MSS Security Aviation QLD Enterprise Agreement 2020-2023.

[1] MSS Security Pty Ltd T/A MSS Security (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the MSS Security Aviation QLD Enterprise Agreement 2020 - 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement has been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

•  Clause 5.1.1 – Annual leave;

•  Clause 5.2(b) – Public holidays;

•  Clause 2.8 – Redundancy.

[5] I note that the United Workers Union, a bargaining representative for the Agreement, has raised a concern in its F18 Declaration in relation to clause 2.8 of the Agreement and has indicated that an undertaking should be sought in this respect, notwithstanding that the United Workers Union supports the approval of the Agreement. I also note that clause 1.8 of the Agreement provides that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

[6] On 22 February 2021, I communicated with the Applicant and the bargaining representatives by email indicating my view that the more beneficial entitlements in the NES would prevail over any less beneficial provision in the Agreement and that I proposed to deal with the NES issues, including the potential inconsistency between the NES provisions in relation to redundancy and clause 2.8 of the Agreement, by noting this matter in my Decision approving the Agreement. I also requested that any views of the bargaining representatives about my proposed approach be provided and that in the absence of objection, I would approve the Agreement based on the undertakings and noting the potential NES issues in the approval Decision. No response was received to this email from the bargaining representatives.

[7] Accordingly, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55. The potential inconsistencies are identified above.

[8] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[9] The United Workers’ Union and the Transport Workers’ Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) of the Act, and based on the declaration provided by the organisations, I note that the Agreement covers these organisations.

[10] The Agreement is approved in accordance with s.54 of the Act and will operate from 9 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A