MSS Security Pty Ltd t/as MSS Security

In the Fair Work Commission, the applicant MSS Security Pty Ltd sought to clarify an ambiguity in an expired enterprise agreement. The dispute centred on the interpretation of an allowance known as the Aviation Allowance, which was meant to cover various costs incurred by employees working in the aviation security sector. The uncertainty pertained to whether this allowance was intended to be paid for each hour worked or if it was compounded for the purposes of calculating overtime and other penalties. The Commission was tasked with resolving this ambiguity to ensure the agreement's terms were clear and enforceable.

The central legal issue before the Commission was whether the Aviation Allowance was intended to be a straightforward hourly payment or if it was to be compounded for overtime and penalty rate calculations. This interpretation was crucial as it directly affected the financial entitlements of employees under the agreement. The Commission considered the principles of interpretation, the history of the provision, and the mutual intention of the parties at the time of the agreement's creation. The applicant argued that the allowance was never paid on a compounded basis, suggesting that the agreement should be varied to reflect this historical practice.

The Fair Work Commission found that the Aviation Allowance was indeed ambiguous as written, as it could be interpreted in multiple ways. After considering the history of the allowance and the mutual intention of the parties, the Commission concluded that the allowance was never intended to be compounded. Therefore, the Commission exercised its power under section 234 of the Fair Work Act to vary the expired enterprise agreement to remove the ambiguity. The Commission made orders to amend both the original and a subsequent enterprise agreement to reflect that the allowance is paid for each hour worked, rather than being compounded for overtime or penalty rate calculations.