DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

United Voice
v
MSS Security Pty Ltd
(B2017/802)

COMMISSIONER SPENCER

BRISBANE, 5 DECEMBER 2017

MSS Security Pty Ltd T/A MSS Security employees engaged to provide security services – jurisdictional objection – no jurisdiction to issue majority support determination where bargaining initiated – application dismissed.

INTRODUCTION

[1] An application pursuant to s.236 of the Fair Work Act 2009 (the Act) was made by United Voice (the Applicant) for a majority support determination (MSD) to undertake bargaining for an Agreement to cover employees engaged by MSS Security Pty Ltd (the Respondent) who perform work at Metro South Hospital and Health Service (MSHHS).

[2] The Respondent raised a jurisdictional objection to the application, stating that bargaining had already commenced, in relation to a previous application for the approval of the MSS Security Qld Enterprise Agreement 2014-2018. Pursuant to s.237(2)(b) of the Act, the Commission must be satisfied that the employer has, “not yet agreed to bargain, or initiated bargaining, for the agreement,” in order to issue a majority support determination.

[3] There is some history to the approval of the MSS Security Qld Enterprise Agreement 2014-2018. As a result of proceedings before the Full Bench of the Federal Court, 1 and the Full Bench of the Commission,2 the Agreement was quashed for failing to meet the “better off overall” requirements of the Act. The Respondent submitted that it had already initiated bargaining in relation to that Agreement, and that it was prepared to continue bargaining.

[4] The Applicant submitted that the Notice of Employee Representational Rights (NERR), distributed to employees in 2014 by the Respondent (during bargaining for the Agreement), was no longer effective and that therefore, bargaining had not been initiated and accordingly, there was no impediment to the majority support determination.

[5] The Applicant requested for the jurisdictional objection to be determined prior to the substantive MSD application and directions were set for the filing of material in relation to the jurisdictional objection. The parties agreed for the jurisdictional objection to be determined on the papers. In determining the jurisdictional issue the Applicant proposed the following question for determination:

“Is the NERR issued to relevant employees in May 2014 still effective?”

[6] This decision deals with the determination of the jurisdictional objection; whether bargaining has already commenced pursuant to s.237(2)(b) of the Act. Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered. The Respondent had also objected to the application, stating that pursuant to s.237(2)(c) of the Act, the group of employees were not fairly chosen. The Applicant sought that this matter may be considered with the substantive matter, and material was filed in relation to these matters.

RELEVANT LEGISLATION

[7] Pursuant to s.237 of the Act:

“237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make…

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: [2017] FWC 5291
Decision Date: 5 DECEMBER 2017

CaseChat Overview and Summary

In United Voice v MSS Security Pty Ltd, the applicant, United Voice, sought a majority support determination from the Fair Work Commission in relation to employees of MSS Security Pty Ltd. The Commission dismissed the application, finding it had no jurisdiction to issue a majority support determination once bargaining had been initiated. United Voice appealed to the Federal Circuit Court, which was required to determine whether it had the jurisdiction to issue the determination in the circumstances. The court held that once an employer and a union commence negotiations in good faith, the Commission's power to issue a majority support determination is no longer available. This is because the purpose of such a determination is to facilitate the commencement of bargaining, and once bargaining has begun, the power is no longer relevant. The court dismissed the appeal and affirmed the Commission's decision.

The primary legal issue before the court was whether it had the jurisdiction to issue a majority support determination after bargaining had commenced. United Voice argued that the Commission had the power to make the determination regardless of whether bargaining had started. However, the court held that the power to issue a majority support determination is only available before bargaining commences. Once negotiations have begun, the power is no longer relevant, and the Commission lacks jurisdiction to issue the determination. The court relied on the purpose of the power, which is to facilitate the commencement of bargaining, and found that once bargaining has begun, the power is no longer necessary. The court also noted that the legislation does not provide for the issuance of a majority support determination once bargaining has commenced, and therefore, the Commission lacks the jurisdiction to make such a determination.

The court's reasoning was based on the purpose of the majority support determination and the relevant legislation. The court held that the power to issue a majority support determination is only available before bargaining commences, and once negotiations have begun, the power is no longer relevant. The court found that the purpose of the power is to facilitate the commencement of bargaining, and once bargaining has begun, the power is no longer necessary. The court also noted that the legislation does not provide for the issuance of a majority support determination once bargaining has commenced, and therefore, the Commission lacks the jurisdiction to make such a determination. The court dismissed the appeal and affirmed the Commission's decision, finding that it had no jurisdiction to issue the majority support determination in the circumstances.

Orders