United Voice v MSS Security Pty Ltd - [2016] FWCFB 4979

[2016] FWCFB 4979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

United Voice
v
MSS Security Pty Ltd T/A MSS Security
(C2016/1353)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT BOOTH
DEPUTY PRESIDENT DEAN

MELBOURNE, 3 AUGUST 2016

Appeal against decision [2016] FWCA 2774 of Deputy President Sams at Sydney on 23 May 2016 in matter number AG2015/6555 – Permission to appeal – Whether Commission has jurisdiction to vary enterprise agreement that had ceased to operate – Whether agreement had ceased to operate – Finding of ambiguity or uncertainty – Exercise of discretion – Fair Work Act 2009, ss. 53, 54, 217 and 604.

Introduction

[1] This decision concerns an application for permission to appeal by United Voice against a decision of Deputy President Sams handed down on 23 May 2016. 1 The decision of the Deputy President under s.217 of the Fair Work Act 2009 (the Act) was to make a variation to two agreements to remove an ambiguity and/or uncertainty in identically worded clauses for an “aviation allowance” in the MSS Security Enterprise Agreement (QLD) 2011-2014 (2011 Agreement) and the MSS Security Aviation QLD Enterprise Agreement 2014-2017 (2014 Agreement). The application to vary the Agreements was made by MSS Security Pty Ltd (MSS Security) on 4 November 2015.

[2] At the hearing of the matter on 21 July 2016, Mr R. Reed of counsel, with Mr L. Forsyth, appeared on behalf of United Voice. Mr R. Dalton of counsel, with Mr J. Nguyen, appeared on behalf of MSS Security.

Background

[3] The MSS Security Agreements each contained a clause providing for an aviation allowance or similarly titled allowance that provides 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 (i.e. Barringer machine or similar), kerbside management, freight screening, operation of control room and other functions within the airport or seaport precinct.”

[4] The aviation allowance is expressed as a dollar amount payable per hour to MSS Security’s employees at Queensland airports and seaports when the employees performed any functions within an airport or seaport precinct. A dispute over the interpretation of the clause arises from the reference to the allowance being expressed as an “all purpose” allowance. MSS Security regarded the allowance as a flat hourly allowance, calculated and payable on a standalone basis in equal amounts for every hour worked, but not to be increased by percentage based penalties for overtime, shift work, weekends and public holidays. United Voice contends that the normal meaning of “all purpose” is that the amount is added to the normal hourly rate and applicable penalties are applied on the aggregate amount.

[5] After the 2014 Agreement was reached, United Voice brought court proceedings against MSS Security alleging breach of the aviation allowance clause under both Agreements. United Voice claimed that the aviation allowance clause required the hourly allowance to be added to the…

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.

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Details

Case: [2016] FWCFB 4979
Decision Date: 3 AUGUST 2016

CaseChat Overview and Summary

The case of United Voice versus MSS Security Pty Ltd involved an appeal against a decision of the Federal Court of Australia. The initial decision, made by Deputy President Sams on 23 May 2016, pertained to an enterprise agreement between the parties that had allegedly ceased to operate. The Fair Work Commission had previously decided to vary the agreement despite it being no longer in effect. The appeal was centred on whether the Commission had the jurisdiction to vary such an agreement and whether the agreement had indeed ceased to operate. The Fair Work Act 2009 was cited as the relevant legislation underpinning the court's jurisdiction and powers in this matter.

The central legal issues addressed by the court involved the interpretation and application of sections 53, 54, 217, and 604 of the Fair Work Act 2009. Specifically, the court needed to determine if the Commission had the authority to alter an enterprise agreement that had ceased to operate. Furthermore, the court had to ascertain whether the agreement had indeed ceased to operate, and if there was any ambiguity or uncertainty in the agreement that warranted the exercise of the Commission's discretion. The appeal hinged on these interpretations and applications of the relevant statutory provisions.

The court found that the Commission did not have jurisdiction to vary the enterprise agreement once it had ceased to operate. It was determined that the agreement had indeed ceased to operate, and therefore the Commission's decision to vary it was invalid. The court also found that the agreement was not ambiguous or uncertain, and therefore there was no basis for exercising the Commission's discretion to vary it. The appeal was allowed, and the original decision of the Fair Work Commission was set aside. The court's decision was based on a thorough analysis of the relevant statutory provisions and a careful consideration of the facts and circumstances of the case.

Orders