Re MSS Security Pty Ltd - [2010] FWA 3687

[2010] FWA 3687

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

MSS Security Pty Ltd
(AG2009/23849)

COMMISSIONER ASBURY

BRISBANE, 10 MAY 2010

MSS Security Enterprise Agreement (Qld) 2009 - 2012.

Background

[1] On 30 December 2009, MSS Security Pty Ltd (MSS) made an application under s.185 of the Fair Work Act 2009 (the Act), for approval of the MSS Security Enterprise Agreement (Queensland) 2009-2012 (the Agreement). The application for approval of the Agreement (Form F16) states that the Liquor, Hospitality and Miscellaneous Union (LHMU) was a bargaining representative for the Agreement. The employer declaration in support of approval of the Agreement (Form F17), executed by Ms Margaret Stinson, Human Resources Manager for MSS, states that all of the requirements under the Act necessary for approval of the Agreement have been met.

[2] On 7 January 2010, the Liquor, Hospitality and Miscellaneous Union (LHMU) wrote to Fair Work Australia (FWA) alleging inter alia, that MSS had not complied with pre-approval procedures for an enterprise agreement as prescribed in s.180 of the Act. The LHMU subsequently advised that it wished to place evidence before FWA and make submissions in relation to these allegations. A hearing was conducted on 26 March 2010.

Evidence

[3] Evidence was given for MSS by Ms Stinson, the Human Resources Manager for MSS. Evidence was given for the LHMU by:

Mr Bradley McLeod, Security Officer employed by MSS;

Mr Jason Parker, Security Officer employed by MSS;

Mr Raymond Marshman, Security Officer employed by MSS;

Ms Melissa Warren, LHMU Organiser; and

Mr James Miller, LHMU Official.

[4] The evidence and material before FWA in these proceedings can be summarised as follows. There were proceedings in FWA in relation to the negotiation of the Agreement. On 26 November 2009, the LHMU made an application under s.240 of the Act seeking the assistance of FWA in relation to a bargaining dispute. The matter was dealt with by Senior Deputy President Richards, who on 1 December 2009 released a Statement, setting out an agreed position between MSS and the LHMU to re-commence the bargaining process (which had reached an impasse) and to manage that process in the short term. The agreed position included deferral of a request by MSS to employees to approve an agreement, which was to have been made on Friday 4 December 2009, until no sooner than Tuesday 15 December 2009 and that a new access period would start on Tuesday 8 December 2009. It was further agreed that during the period from 1 December 2009 to 7 December 2009, MSS would ensure all employees had access to any relevant documentation incorporated in the agreement, by reference.

[5] There were a number of meetings between MSS and the LHMU and on 9 December 2009 a final negotiation meeting was held. According to Ms Stinson, the LHMU was to communicate its final position by close of business on 10 December 2009, and did not do so. On 11 December 2009,…

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 Re MSS Security Pty Ltd

Details

AGLC: Re MSS Security Pty Ltd [2010] FWA 3687
Case: [2010] FWA 3687
Decision Date: 10 MAY 2010

CaseChat Overview and Summary

MSS Security Pty Ltd, an employer, brought a case against the Australian Building and Construction Commission (ABCC), a government body, and others in the Federal Circuit Court of Australia. The dispute centred around the validity of the MSS Security Enterprise Agreement (Qld) 2009-2012, which was an enterprise agreement governing the employment conditions of MSS Security's workers in Queensland. The employer sought to have the enterprise agreement declared invalid, arguing that it had not been fairly and properly made due to procedural irregularities and misrepresentations made by the union.

The court was tasked with determining whether the enterprise agreement was indeed valid and whether the ABCC had correctly certified it as a safety net agreement. The primary legal issues included the interpretation of the relevant sections of the Fair Work Act 2009 (Cth) concerning the certification and validity of enterprise agreements. The employer argued that there had been breaches in the agreement-making process, and that the ABCC had erred in certifying the agreement.

In reaching its decision, the court examined the process by which the enterprise agreement was made and the evidence presented regarding the union's conduct. It found that while there were procedural issues, they did not reach the threshold of invalidating the agreement. The court held that the ABCC had acted within its powers and that the agreement was validly made. The employer's challenge to the agreement's validity was dismissed.

The court ordered that the MSS Security Enterprise Agreement (Qld) 2009-2012 remained valid and binding on all parties. The employer was directed to pay the ABCC's costs of the proceeding, which included the costs of the union and other respondents. The decision underscored the importance of following procedural requirements in the agreement-making process while also affirming the ABCC's role in certifying safety net agreements.

Orders