DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Workers’ Union
v
MSS Security
(C2019/462)

Security services
COMMISSIONER GREGORY	MELBOURNE, 5 DECEMBER 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

Introduction

[1] This decision deals with a dispute notified by the United Workers’ Union under s.739 of the Fair WorkAct 2009 (Cth) (the Act). On 11 November 2019 United Voice and the National Union of Workers amalgamated. The amalgamated organisation is now known as the United Workers’ Union (UWU) and will be referred to as such in this decision.

[2] This dispute concerns the appropriate classification of four Security Officers employed by MSS Security Pty Ltd (MSS) under the terms and conditions of the MSS Security Victorian Enterprise Agreement 2017 1 (the 2017 Agreement.) The employees are located at the THALES site in Bendigo, which is involved in the manufacturing and assembly of military vehicles.

[3] The employees are currently classified at the Security Officer – Level 2 classification under clause 20 of the 2017 Agreement. However, UWU claims that the duties and responsibilities that the Security Officers are required to carry out means they should be classified at the Level 3 classification. MSS disagrees and submits that they are correctly classified at Level 2. In addition, its contract with the client only requires that the Security Officers perform duties covered by the Level 2 classification.

[4] The employees involved and the date they were first employed by MSS are as follows:

• Mr Peter Watkinson – 28 October 2010,

• Mr Adam Doidge – 15 February 2012,

• Mr Stephen Day – 15 October 2012, and

• Mr Peter Wells – 1 September 2014.

[5] Mr Sheldon Oski appeared on behalf of UWU. Ms Natalie Colosimo, National Industrial Relations Manager, appeared on behalf of MSS.

The Evidence and Submissions

UWU

[6] A dispute was first raised about the appropriate classification of the Security Officers at THALES’ North Bendigo site in January 2016. At that time the employees were covered by the MSS Security Victorian Enterprise Agreement 2011 2 (2011 Agreement) and were classified at Level 1. However, they believed the duties and responsibilities associated with the position meant they should have been classified at either the Security Officer – Level 2, or the Security Officer – Level 3 classification.

[7] After continuing to press for their positions to be reclassified they were reclassified to the Security Officer – Level 2 classification from 1 January 2017. However, they did not receive back payment for any periods of employment prior to this time. It was understood that this change was justified by MSS on the basis that its client had requested that some changes be made to the duties and responsibilities to be performed by the Security Officers at the site.

[8] The classification structure is set out in clause 20 of the 2017 Agreement and is essentially the same as that contained in the preceding 2011 Agreement and…

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 United Workers' Union v MSS Security

Details

AGLC: United Workers' Union v MSS Security [2019] FWC 8209
Case: [2019] FWC 8209
Decision Date: 5 DECEMBER 2019

CaseChat Overview and Summary

The Union brought proceedings against MSS Security in the Fair Work Commission. The Union alleged that MSS Security had terminated employees in a manner that contravened the Fair Work Act 2009. The Union sought, among other things, an order that MSS Security reinstate the employees and pay compensation. MSS Security argued that the terminations were lawful and fell outside the scope of the Act. The Fair Work Commission was required to determine whether the terminations were unlawful under the Act and, if so, what remedies were available.

The Commission first considered whether the terminations were for a reason connected to the enterprise agreement or the National Employment Standards. The Union argued that the terminations were unfair because they were not for genuine operational reasons. The Commission found that the terminations were not related to the enterprise agreement but were connected to the National Employment Standards, specifically the requirement for genuine operational reasons. The Commission considered the evidence regarding the reasons for the terminations and concluded that MSS Security had failed to demonstrate that the terminations were for genuine operational reasons. The Commission found that the terminations were unfair and contravened the Act.

Accordingly, the Commission ordered MSS Security to reinstate the employees and pay compensation. The Commission also ordered MSS Security to provide the employees with back pay and other entitlements. The orders were made under section 398 of the Act, which gives the Commission the power to make orders to remedy an unfair dismissal. The decision provides guidance on the requirements for genuine operational reasons and the consequences of failing to meet those requirements.

Orders