United Voice v MSS Security Pty Ltd
[2015] FCCA 3125
•24 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UNITED VOICE v MSS SECURITY PTY LTD | [2015] FCCA 3125 |
| Catchwords: INDUSTRIAL LAW – Awards – interpretation of award – application for stay pending determination in Fair Work Commission – application granted. |
| Legislation: Fair Work Act 2009, ss.217, 739 |
| ResMed Ltd v Australian Manufacturing Workers Union (No.2) [2015] FCA 537 Teys Australia Beenleigh Pty Ltd v Australian meat industries employees union & Anor [2015] FCA 1033 |
| Applicant: | UNITED VOICE |
| Respondent: | MSS SECURITY PTY LTD |
| File Number: | BRG 929 of 2015 |
| Judgment of: | Judge Vasta |
| Hearing date: | In Chambers |
| Date of Last Submission: | 17 November 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 24 November 2015 |
REPRESENTATION
Upon application on the papers determined in Chambers.
ORDERS
This proceeding be stayed until both matters:-
(a)C2015/7062- MSS security Pty Ltd trading as MSS Security v United Voice; and
(b)AG 2015/6555- MSS security Pty Ltd trading as MSS security
are heard and determined by the Fair Work Commission.
The parties to notify the court within three (3) working days of each application referred to in order one above been determined by the Fair Work Commission.
Either party has liberty to apply to vary these orders.
Costs are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 929 of 2015
| UNITED VOICE |
Applicant
And
| MSS SECURITY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the Respondent, MSS Security Pty Ltd, seeking a temporary stay of the substantive application before this Court. The rationale advanced for the stay is that the Respondent states that there are two matters before the Fair Work Commission that ought be determined prior to this application being heard.
The substantive application revolves around whether the Respondent did not pay its employees properly in accordance with an enterprise agreement.
The Application before this Court
There are two enterprise agreements that the Respondent has entered into with its employees. The first agreement was made in 2011 (“the 2011 agreement”). It contained a clause relating to the “aviation and seaport security allowance”.
The Applicant claims that under this allowance, the employees ought to have been paid more than they were paid.
A new agreement (“the 2014 agreement”) has a similar allowance within it. That agreement has yet to be approved. Apparently, a Commissioner of the Fair Work Commission approved the agreement in April 2015 but recently, the Full Bench of the Fair Work Commission set aside the approval by the Commissioner. The Respondent argues that this means that the Respondent and its employees are still acting under the 2011 agreement.
Whether this is correct or not, does not really affect the substantive application before this Court. The question before this Court is whether the Respondent has complied with its obligations under the enterprise agreement. This will mean that the court will have to do “interpret” the clause in the 2011 agreement.
The Application before the Fair Work Commission
The Respondent has recently launched an application pursuant to s.739 of the Fair Work Act 2009 (Cth) (“the FW Act”) to deal with a dispute in accordance with the dispute settlement procedure. The Respondent has also launched an application pursuant to s.217 of the FW Act to vary the 2014 agreement to remove ambiguity or uncertainty.
The Respondent claims that there is ambiguity and uncertainty regarding the aviation allowance in the 2014 agreement. That clause in the 2014 agreement is in the same terms as the clause in the 2011 agreement upon which the proceedings in this Court are based.
Submissions of the Applicant
The Applicant opposes the stay because the matter before the Fair work Commission revolves around the interpretation in the 2014 agreement. The action in this Court revolves around the 2011 agreement. The Applicant claims that it is a matter for this Court to make a determination as to the proper construction of the clause in the 2011 agreement. Such determination by this Court would then give guidance to the Fair Work Commission.
Submissions of the Respondent
The Respondent claims that, because the 2014 agreement has not been approved, the Respondent is still covered by the 2011 agreement. As a result of this, the Respondent can, and will, amend their application before the Fair Work Commission to include a variation of the 2011 agreement.
The Respondent claims that the Fair Work Commission can, if it finds that there is ambiguity, alter the particular clause to give effect to what the true purpose of the clause actually was. Such a finding does have retrospective effect.
The Respondent claims that the Commission is not bound to simply interpret the words of the clause as they exist but can look beyond the words to determine the true purpose of the clause and then alter the clause to give effect to what the true purpose was. By contrast, this Court is bound to look at the words of the clause as they are written. For that reason, the Respondent claims that any determination by this Court would fetter the commission rather than guide it.
The Law
It is trite to say that this Court has a wide discretion as to whether it stays the proceedings or not. My distilling of the authorities referred to by the parties, leads me to an uncontroversial conclusion that the stay should only be granted if it is in the interests of justice for such a stay to be granted.
I have been referred to ResMed Ltd v Australian Manufacturing Workers Union (No.2) [2015] FCA 537 and to Teys Australia Beenleigh Pty Ltd v Australian Meat Industries Employees Union & Anor [2015] FCA 1033. Both of these cases have similarities to the present case, but neither is precisely on point. However, both decisions reflect the fact that the decision is ultimately one for the Court to apply by looking at what is in the interests of justice.
In looking at the Teys (Supra) decision, it seems to me that the question that needed to be answered was whether the remuneration schedule was part of the 2010 agreement. In the situation that obtained in that case, it would seem to me that it was appropriate that the Court look at the matter and make a determination before the Fair Work Commission began its determination.
In looking at the ResMed (Supra) decision, it seems to me that the question that needed to be answered was whether the employees could have their industrial interests represented by the union. That was a matter where the Fair Work Commission did have jurisdiction to look at the propriety of the employees being so represented. In that case, it was important for the Fair Work Commission to make their determination before the Court.
Conclusion
In this case, I am of the view that it is in the interests of justice for the Fair Work Commission to determine what is the true purpose of the clause and, if necessary, make any appropriate amendment. I cannot see that there is any prejudice to the Applicant in taking this course.
If I did not take this course, I am of the view that there is the potential for inconsistencies between the Fair Work Commission’s determination of the application under s.217 and this Court’s determination of the substantive application. However, if this Court waits for the determination of the Fair Work Commission, there will be no inconsistency.
If it turns out that the Applicant is successful before the Fair Work Commission, such a result would lead to a quick resolution of the matter in this Court. Similarly, if the Respondent is successful before the Fair Work Commission, I would anticipate that there would also be a quick resolution of this matter in this Court.
The other aspect in favour of waiting for the Fair Work Commission adjudication is that such adjudication would, if in the Applicant’s favour, allow me to more properly assess the scope of the breach by the Respondent. Such an assessment would allow me to better determine the proper pecuniary penalty.
Orders
I order that:-
1.This proceeding be stayed until both matters:-
(a)C2015/7062- MSS security Pty Ltd trading as MSS Security v United Voice; and
(b)AG 2015/6555- MSS security Pty Ltd trading as MSS security
are heard and determined by the Fair Work Commission.
2.The parties to notify the court within three (3) working days of each application referred to in order one above been determined by the Fair Work Commission.
3.Either party has liberty to apply to vary these orders
4.Costs are reserved
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 24 November 2015
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