United Workers' Union v MSS Security Services T/A MSS Security Pty Ltd - [2022] FWC 2782

[2022] FWC 2782

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

United Workers’ Union
v

MSS Security Services T/A MSS Security Pty Ltd

(B2022/1333)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 OCTOBER 2022

Application for a majority support determination – determination made.

On 5 September 2022, the United Workers’ Union (UWU) made an application pursuant to s.236 of the Fair Work Act 2009 (Cth) (the Act) for a majority support determination.

The UWU seeks a determination that a majority of MSS Security Services T/A MSS Security Pty Ltd (MSS Security) employees who are covered by the Security Services Industry Award 2020 (Security Services Award) and are performing work under contracts to supply security services to aviation sites in Tasmania, want to bargain with their employer. In its application, the UWU outlined that the employees spoke to Mr Ashely Wilton, Organiser, and indicated a wish to bargain for an enterprise agreement. Further, it outlined that Mr Wilton and Mr Bishwoksen Adhikari, Organiser, then obtained petition signatures of employees, a majority of whom signed the petition indicating support for the UWU to be their bargaining representative and bargain for an enterprise agreement. The UWU attached an unredacted copy of the petition conducted to the originating application.

On 11 August 2022, Mr Wilton had sent an email to Ms Edwards, HR/IR Manager of MSS Security, attaching a formal request to begin bargaining with its members performing work under contracts to supply security services to aviation sites in Tasmania. On 16 August 2022, Ms Bhoomika Bharti, HR/IR Manager of MSS Security, replied to Mr Wilson with an email that stated:

“Hi Ashley,

We acknowledge your Request to Commence Bargaining for Tasmanian Aviation sites.

We refer to our agreed terms as outlined in our letter dated 17 November 2021, where it states that once the contract is officially signed, MSS will undertake the exercise to establish majority support across the relevant sites by engaging in an independent online ballot within 5 weeks of the contract execution.

At this stage, the contract is going through the due diligence process and remains unsigned.

MSS proposes to keep you and our employees updated of the progress and next steps thereafter.”

On 6 September 2022, my Associate sent an email to MSS Security in which MSS Security was asked to provide a list of employees who are covered by the Security Services Award and are performing work under contracts to supply security services to aviation sites in Tasmania and advice as to whether or not it agreed to bargain for the Agreement sought by the UWU.

On 13 September 2022, my Chambers received a reply email from MSS Security providing a list of the employees covered by the Security Services Award who are performing work under contracts to supply security services to aviation sites in Tasmania. The email also referred to the letter to Mr Wilton dated 17 November 2021 signed by Ms Edwards. MSS Security relied on the 17 November 2021 letter in submitting that it had…

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: [2022] FWC 2782
Decision Date: 17 OCTOBER 2022

CaseChat Overview and Summary

The United Workers’ Union (UWU) applied to the Fair Work Commission (FWC) for a majority support determination under section 236 of the Fair Work Act 2009 (the Act). The UWU sought a determination that a majority of MSS Security Services T/A MSS Security Pty Ltd (MSS Security) employees performing work under contracts to supply security services to aviation sites in Tasmania wish to bargain for an enterprise agreement with their employer. MSS Security opposed the application, arguing that an independent ballot should be held to determine the employees' wishes. The Deputy President of the FWC, Clancy, was tasked with deciding whether the UWU's application should be granted.

The legal issues in this case centered around whether the UWU had satisfied the requirements of section 237 of the Act for the FWC to make a majority support determination. Specifically, the FWC needed to be satisfied that a majority of the employees who would be covered by the proposed agreement wanted to bargain, that MSS Security had not yet agreed to bargain, that the group of employees was fairly chosen, and that it was reasonable in all the circumstances to make the determination. The Deputy President found that the UWU had demonstrated that a majority of the relevant employees wanted to bargain with their employer and that the group of employees had been fairly chosen. MSS Security did not dispute that it had not yet agreed to bargain. The Deputy President also found that it was reasonable in all the circumstances to make the determination.

The Deputy President concluded that all the requirements of section 237 of the Act had been met and ordered that a majority support determination be made in favor of the UWU. The determination, which would come into operation on the date of the decision, recognized that a majority of MSS Security employees performing work under contracts to supply security services to aviation sites in Tasmania wished to bargain with their employer for an enterprise agreement. The Deputy President's decision allowed the UWU to proceed with its application for a majority support determination and provided a legal basis for the bargaining process to commence between the UWU and MSS Security.

Orders