Application for approval of the MSS Security BHP SA Enterprise Agreement 2025 - 2029

[1] An application has been made for approval of an enterprise agreement known as the MSS Security BHP SA Enterprise Agreement 2025 - 2029 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MSS Security Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] I note that there was a minor discrepancy between the title of the proposed agreement in the Notice of Employee Representational Rights (NERR) and the Agreement. I regard this as a minor technical error within the meaning of s.188(5). The NERR contained a clear description of the proposed coverage of the proposed agreement. I am satisfied that the employees were not likely to have been disadvantaged by the error and that the error can therefore be disregarded under that section.

[3] The copy of the Agreement filed with the application for approval did not contain a signature page which met the required terms required by s.185 of the Act and regulation 2.06A of the Fair Work Regulations 2009 (the Regulations). A copy of the Agreement with an amended signature page was later filed that met the requirements of the Act and Regulations. I consider it appropriate in the circumstances to allow the amendment of the application pursuant to s.586(a) of the Act.

[4] The Applicant has provided written undertakings, a copy of which is attached in Annexure A. 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] Subject to the undertakings referred to above, 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.

[6] The Agreement does not contain a Delegates' Rights Term, as required by s.205A(1) of the Act. Under s.205A(2) of the Act, the Workplace Delegates' Rights term in clause 26A of the Security Services Industry Award 2020 is taken to be a term of the Agreement.

[7] I note that the following Clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

• Annual leave: Clause 5.3(a)(iii) states that cashing out annual leave must not result in the employee's remaining entitlement to accrued paid annual leave being less than 5 weeks. This appears inconsistent with s.94(2) of the Act which provides that the employee's remaining accrued entitlement to paid annual leave must not be less than 4 weeks.

• Compassionate leave: Clause 7.1(c) provides for compassionate leave however, it appears to omit the entitlement to leave where an employee, their partner or spouse has a miscarriage or gives birth to a stillborn child. This may be more restrictive than s.104(1)(b) and s.104(1)(c) of the Act.

• Termination (abandonment of employment): Clause 2.8(h) provides where an employee fails to attend work for more than 2 working days or shifts without notification or explanation, the employer may deem the employee has abandoned their employment. Following unsuccessful reasonable and genuine attempts to contact the employee, the employer may terminate the employment of the employee without a requirement to give notice. Section 123 of the Act does not preclude an employee who has abandoned their employment from the entitlement to notice of termination provided by s.117 of the Act.[1]

• Redundancy: Clause 2.10(d) states redundancy pay is not applicable if a change in a position occurs due to change of contractor or contractual terms of a particular client site, and where the employee was offered acceptable alternative employment either with the employer or the incoming contractor, or elects to accept a non-acceptable alternative employment role with the employer, redundancy pay will not apply. However, the provision is not subject to an application under s.120 of the Act.

[8] Noting Clause 1.4(c) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

[9] Pursuant to sections 193A(6) and (6A) of the Act, I have had regard to the submissions of the Employer that patterns of work which may cause casual employees to be better off under the Award are not reasonably foreseeable. I accept the submissions of the Employer. For completeness I note the terms of section 227A of the Act that allows the Commission, in certain circumstances, to reconsider whether the Agreement passes the better off overall test if there are changes to the patterns of work at a later time.

[10] The Agreement is approved and will operate in accordance with s.54 of the Act from 17 December 2025. The nominal expiry date of the Agreement is 10 December 2029.

[1] Bienias v Iplex Pipelines Australia Pty Limited [2017] FWCFB 38 at [58].

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