Legal Research
Cases
MSS Security Pty Ltd t/as MSS Security

MSS Security Pty Ltd t/as MSS Security

Case [2016] FWCA 2774 23 May 2016

Interpretation of Contracts

Variation of Enterprise Agreements

Mutual Intention

Employment & Labour Law

No judgment structure available for this case.

Type to search within this case.

[2016] FWCA 2774 [Note: An appeal pursuant to s.604 (C2016/1353) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 217 - Application to vary an agreement to remove an ambiguity or uncertainty

MSS Security Pty Ltd t/as MSS Security
(AG2015/6555)

MSS SECURITY AVIATION QLD ENTERPRISE AGREEMENT 2014-2017

Security services
DEPUTY PRESIDENT SAMS	SYDNEY, 23 MAY 2016

Application to remove an ambiguity or an uncertainty in an enterprise agreement – Aviation Allowance – all purpose allowance – method of calculation – history of provision – whether allowance is paid for each hour worked or compounded for the purposes of calculating overtime and other penalties – principles of interpretation – ambiguity established – mutual intention considered – allowance never paid on a compounded basis –variation appropriate – whether Commission has power to vary expired enterprise agreement – two enterprise agreements varied – orders made.

BACKGROUND

[1] On 4 November 2015, MSS Security Pty Ltd t/as MSS Security (‘MSS’) made an application, pursuant to s 217 of the Fair Work Act 2009 (the ‘Act’) seeking to have the Fair Work Commission (the ‘Commission’) remove an ambiguity or uncertainty by varying the terms of both the MSS Security Aviation QLD Enterprise Agreement, 2014–2017 (the ‘2014 Agreement’) and the MSS Security Enterprise Agreement (QLD) 2011–2014 (the ‘2011 Agreement’). MSS Security provides security and emergency response services with offices in all States and Territories. MSS employs around 5,000 employees nationwide; 870 of these in Queensland and 220 who work in aviation security. The 2011 Agreement was approved by Asbury C (as Her Honour then was) on 1 November 2011; See: MSS Security Pty Ltd [2011] FWAA 5060. The 2014 Agreement was approved by Gregory C on 21 November 2014; See: MSS Security Pty Ltd [2014] FWCA 8229.

[2] The ambiguity or uncertainty is said to arise in respect to a common clause in both Agreements dealing with the payment of an Aviation Allowance (the ‘Allowance’) for security employees at Queensland airports (namely, Brisbane and regional airports in Mackay, Prosperine, Hamilton Island, Rockhampton and Harvey Bay) and seaports. The Aviation Allowance is paid to security employees who work in the airport precinct and who are required to hold a Red Aviation Security Identity Card. It applies to all areas, including catering and freight centres.

[3] For present purposes, the two clauses in both Agreements are identical and are expressed as follows:

‘The following all purpose allowance will apply per hour to employees working at an airport or seaport performing the following functions: passenger screening, checked bag screening including x-ray and or trace element detection equipment (i.e. Barringer machine or similar), kerbside management, freight screening, operation of control room and other functions within the airport or seaport precinct.’

Both Agreements cover United Voice (the ‘Union’). The Union is opposed to the application. For completeness, I note that this application is related to a s 739 application seeking to have the Commission deal with a dispute in accordance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MSS Security Pty Ltd t/as MSS Security

Details

AGLC: MSS Security Pty Ltd t/as MSS Security [2016] FWCA 2774
Case: [2016] FWCA 2774
Decision Date: 23 MAY 2016

CaseChat Overview and Summary

In the matter of MSS Security Pty Ltd trading as MSS Security, the Fair Work Commission was tasked with resolving an ambiguity in an enterprise agreement concerning the Aviation Allowance. The dispute centred around whether this allowance should be calculated on an hourly basis or compounded to determine overtime and other penalties. The case involved an application to clarify the allowance's calculation method, as it was integral to the employees' remuneration and entitlements.

The Commission was required to interpret the ambiguous terms of the enterprise agreement and determine the parties' mutual intention regarding the Aviation Allowance. Specifically, the court had to ascertain whether the allowance was intended to be paid per hour worked or compounded for overtime calculations. The principles of interpretation were central to this determination, with a focus on the history of the allowance's provision and its practical application. The Commission found the term to be ambiguous and proceeded to consider the mutual intention of the parties.

The Fair Work Commission concluded that the allowance was never intended to be compounded for overtime purposes. Given the historical evidence and the practical application of the allowance, the Commission found it appropriate to vary the expired enterprise agreement. This decision was made under the Commission's powers to ensure clarity and fairness in the interpretation of enterprise agreements. As a result, the Commission varied two enterprise agreements, and specific orders were made to reflect the correct method of calculating the Aviation Allowance.

The Commission's final orders clarified the method of calculating the Aviation Allowance, ensuring it was paid on an hourly basis. These orders were intended to resolve the ambiguity and align the enterprise agreements with the parties' mutual intention, providing clear guidance for future remuneration and entitlements.

Orders