Application for approval of the MSS Security Aviation QLD Enterprise Agreement 2024-2028

[1] This decision deals with an application made for approval of an enterprise agreement known as the MSS Security Aviation QLD Enterprise Agreement 2024-2028 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by MSS Security Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. The difference in the name includes both a change in the order of words and a change in the year, reflective of the time taken in the Agreement making process. I note that the Applicant requested that the name in the decision should reflect what is in the NERR. The title that is on the Agreement is that which was voted on by employees and therefore is the title that must be used. It is open to the Applicant to file an application pursuant to s.218A, at a later time, accompanied by the appropriate submissions and evidence and with a corrected EA for consideration by the Commission. In its present form, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

[3] The Agreement does not contain a delegate's rights term that in all respects, is no less favourable than the modern award. However, noting clause 9.6 of the Agreement provides for the more beneficial parts of Delegates Rights Terms to apply when read in conjunction with the Award, I am satisfied the more beneficial entitlements will prevail where there is an inconsistency between the Agreement and the Award.

[4] The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[5] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[6] Pursuant to s.190(3) of the Act, I accept the undertakings.

[7] Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[8] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 5.5- Taking of Annual Leave.

However, noting clause 1.4.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The United Workers Union (UWU) and Transport Workers Union (TWU) have each lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the UW, and the TWU.

[10] The TWU and UWU raised concerns regarding the Better Off Overall Test (BOOT). I have considered those submissions and on the basis of the undertakings given, the circumstances that are reasonably foreseeable and the more beneficial terms of the Agreement, I am satisfied that the Agreement passes the BOOT.

[11] The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 April 2029.

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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