[2013] FWCA 1474

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FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MSS Security Pty Limited
(AG2012/8591)

MSS SECURITY VICTORIAN ENTERPRISE AGREEMENT 2011

Security services

COMMISSIONER LEE

MELBOURNE, 8 MARCH 2013

Application for approval of the MSS Security Victorian Enterprise Agreement 2011.

[1] This matter involves the application for approval of a single enterprise agreement known as the MSS Security Victorian Enterprise Agreement 2011 (the Agreement). The application has been made by MSS Security Pty Limited (MSS Security) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement will generally apply to employees of MSS Security who work as licensed security officers in the State of Victoria, excluding some specified types of work and parts of the business.

[2] United Voice (the Union) lodged a FormF18 - Declaration of Employee Organisation in Relation to Application for Approval of Enterprise Agreement (the Form F18) giving notice that it was a bargaining representative for the Agreement. In the notice the Union sought to be covered by the Agreement but indicated that it disagreed with a number of the answers given by MSS Security in the Form F17 - Employer's Declaration in Support of Application for Approval of Enterprise Agreement (the Form F17) and that the Union did not support the approval of the Agreement by Fair Work Australia. It is prudent to note here that on 1 January 2013, Fair Work Australia was renamed the Fair Work Commission and I will refer to the Commission in this decision.

Background to negotiations

[3] The negotiations for the Agreement were fraught and protracted. Prior to the vote to approve the Agreement, there had been three other proposed agreements submitted to a vote of MSS employees. All three of those agreements were not approved by a majority of employees.

[4] The Agreement before me for approval was, according to the Form F17 completed by MSS Security, voted up by a majority of relevant employees, with 217 of the 378 votes cast in favour of approval of the Agreement.

[5] The Union was involved in the negotiation for the Agreement but did not agree with the version of the Agreement that was put out for vote and which is before me for approval. Consequently, the Union actively campaigned in the workplace urging employees not to vote in favour of the Agreement.

Background to application for approval

[6] The application was lodged by MSS Security on 31 October 2012. After considering the application, I wrote to all parties explaining that I had concerns regarding the application of the better off overall test (BOOT) and I noted the objections of the Union as outlined in their Form F18. My letter, dated 23 November 2013, attached analysis conducted by Commission staff in relation to the BOOT and advised all parties that I would list the matter for hearing on 28 November 2012. After correspondence with the parties, I issued Directions for the filing of witness statements and materials by consent of the parties, and amended the date for hearing to 17 December 2012 to allow sufficient time for the written submissions process.

[7] On 3 December 2012, the Union filed an outline of submissions and witness statements of Ms E Keogh (Industrial Officer, United Voice), Mr G Dain (Union Official, United Voice) and Mr G Papanastasi (Security Officer).

[8] On 11 December 2012, MSS Security filed submissions and witness statements of Mr P Carey (Operations, Administration & Compliance Manager, MSS Security), Ms K Matthews (Personal Assistant to Statement Manager Victoria/Tasmania, MSS Security), Mr L Duke Ellis (Consultant Technical Manager, Australian Election Company), Mr E Mirabella (former Human Resources Manager MSS Security) as well as an affidavit of Mr P O’Halloran (solicitor).

[9] Prior to the hearing before me, the Union lodged two applications for production of documents pursuant to section 590(2) of the Act. The applications for production of documents were directed to Mr Carey of MSS Security and to the Australian Electoral Company. On 13 December 2012, I issued Orders for production of documents in the terms sought by the Union.

[10] The hearing proceeded before me on 17 December 2012. Mr R Dalton of Counsel represented the Applicant and Mr E White of Counsel represented the Union.

[11] Subsequent to the hearing on 17 December 2012, I issued further directions for the filing of materials in relation to one issue which had not been explored to my satisfaction and which is discussed in more detail below (whether some employees on the voting roll were not eligible to vote on the Agreement). United Voice was directed to file materials by 7 January 2013 and MSS by 15 January 2013. I also sought the views of the bargaining representatives as to undertakings which were proffered by MSS Security at the hearing.

[12] Further materials were supplied and views as to the undertakings were also received by my Chambers.

[13] On 7 February 2013, I issued a Statement and Directions indicating that this matter had been before the Commission for an extended period of time, but that in light of the additional materials submitted, it was necessary for a further hearing to be convened. I advised the parties that I expected that this hearing would conclude the matter.

[14] That hearing was listed for 27 February 2013. Mr P Carey gave further evidence on behalf of MSS Security and Ms K Johnston (Lead Organiser, United Voice) gave evidence for United Voice.

Applicable legislation

[15] Before an agreement can be approved, the Commission must be satisfied that the requirements of the Act have been met. Part 2-4 of the Act provides for the making of enterprise agreements. Subdivision A of Division 4 of Part 2-4 (sections 180 - 185) deals with pre-approval steps and applications for the Commission to approve enterprise agreements. Subdivision B of Division 4 of Part 2-4 (sections 186-192) deals with approval of enterprise agreements by the Commission. Subdivision C of Division 4 of Part 2-4 (section 193) deals with the application of the better off overall test. I set out below the sections of the Act relevant to this application.

180 Employees must be given a copy of a proposed enterprise agreement etc.

Subdivision B—Approval of enterprise agreements by the FWC

186 When the FWC must approve an enterprise agreement—general requirements

187 When the FWC must approve an enterprise agreement—additional requirements

188 When employees have genuinely agreed to an enterprise agreement

190 FWC may approve an enterprise agreement with undertakings

191 Effect of undertakings

192 When the FWC may refuse to approve an enterprise agreement

Subdivision C—Better off overall test

193 Passing the better off overall test

The issues for determination

[16] The Union submits that I should not approve the Agreement for the following reasons:

[17] MSS Security argues that I can be satisfied that the requirements of the Act have been met and that I can be satisfied that the undertakings proffered meet my concerns in relation to the BOOT.

[18] The matters for determination are whether I am satisfied on the evidence that the necessary requirements of ss.186, 187 and 188 of the Act have been met. In circumstances where I am not satisfied, the matters for determination are whether I can be so satisfied by way of an undertaking or undertakings that comply with the requirements of section 190 of the Act.

Requirements of section 180(2)(a)(ii)

United Voice Ground of objection (a)

[19] The Union alleges that MSS Security failed to take all reasonable steps to ensure that, during the access period for the proposed enterprise agreement, employees had a copy of, or had access to material incorporated by reference in the agreement (s180(2)(a)(ii)).

The evidence and the law to be applied:

[20] Clause 30 of the Agreement provides that “[e]mployees under this agreement shall be entitled to Parental Leave and related entitlements in accordance with the National Employment Standards”. The Union submits that the National Employment Standards (NES) are therefore incorporated into the Agreement by reference.

[21] Schedule K of the Agreement is intended to preserve certain special working conditions that have applied in the past at particular work-sites under now expired enterprise and certified agreements. Sub clause 2.2 of Schedule K of the Agreement provides that “[t]he terms of the workplace agreements are incorporated by reference into this Agreement” save and except three particular matters. There are three expired enterprise and certified agreements that are incorporated. They are outlined in sub clause 2.1 of Schedule K to the Agreement.

[22] The Union claims that during the access period for the Agreement, employees were not given a copy of, or access to, the Parental Leave provisions of the NES or the expired enterprise and certified agreements.

[23] In relation to the NES and Parental leave, MSS Security argues that a reference to parental leave entitlements being in accordance with the NES is not the language of incorporation. 2 MSS argues that even if the NES were incorporated, MSS Security is under no obligation to provide employees with a copy of the NES as it is available in the public domain. On this point MSS Security referred me to the case of McDonalds Australia Pty Ltd v Shop, Distributive and Allied Employees Association3 (the McDonalds case).

[24] On the issue of the incorporated agreements, MSS Security argues 3 points. 4 In summary, MSS Security argue that clause 2.1 in Schedule K is not a new clause and there is not a need for it to be specifically drawn to the attention of employees; secondly, that the workplace agreements were at all times accessible in hardcopy in the guardhouses at the particular worksites where coverage of the workplace agreements was applicable as evidenced by Mr. Carey; and thirdly that there were four access periods over the period of the bargaining for the agreement where employees could have obtained copies of the agreements from the Commission or from the sites where the agreements were retained in hard copy.

Consideration and Conclusion:

[25] On the matter related to Clause 30 of the Agreement and the NES (in particular Parental Leave), I agree with the submission of MSS Security that this is not the language of incorporation. I do not think the NES Parental Leave provisions are incorporated into the Agreement. However, even if I am incorrect on that count, I find that MSS Security has, consistent with the approach adopted in the McDonalds case, taken all reasonable steps in light of the NES being material that is clearly in the public domain.

[26] On the issue of the three enterprise and certified agreements, I do not accept the first argument of MSS Security that, given the clause was not new in the history of bargaining at the site, that it is less necessary to draw it to the attention of employees. There may well be new employees who commenced after the previous ballots had been conducted. Similarly, the third argument of MSS Security relating to the previous access periods for voting on previous agreements does not deal with the issue of new employees. The requirements of the Act must be met for the approval of this Agreement. What occurred with previous processes for previous votes is not a relevant consideration.

[27] Irrespective, there is clear and uncontested evidence that the 3 enterprise and certified agreements were at all times accessible in hardcopy form the guardhouses at the particular sites where coverage of the workplace agreements was applicable. 5Against that background, I am satisfied that all reasonable steps were taken by MSS within the meaning of s.180(2)(a), and the requirements of the Act in this regard have been met.

Requirements of section 180(3) of the Act

United Voice Ground of Objection (b)

[28] The Union alleges that MSS Security failed to take all reasonable steps to notify the relevant employees of the time and place at which the vote would occur, and failed to notify the relevant employees of the voting method that was to be used, by the start of the access period for the proposed enterprise agreement (s.180 (3) of the Act).

The evidence and the law to be applied:

[29] MSS Security provided its employees with a document entitled MSS Security Victorian Enterprise Agreement 2011 which was dated 27 September 2012. The document specified the time and place at which the vote was to occur and the voting method that was to be used. The Union argues that as this material was sent to employees via post on 28 September 2012, that the relevant employees did not receive this material until sometime during Monday 1 October 2012, (the first day of the access period) and thereafter, “.... depending on the vagaries of the postal service”. 6 On this basis, the Union submits that employees did not receive the document by the start of the access period as required by the Act.

[30] MSS Security submits that the Union’s argument implicitly elevates s.180(3) of the Act to having to establish, in a definitive way, that all employees were in fact notified, by the start of the access period for the proposed agreement, of the time and place at which the vote will occur and the voting method used. MSS Security argues that the proper inquiry is as to whether reasonable steps were taken by MSS Security in the circumstances, applying a practical and common sense approach. 7 MSS Security referred me to the McDonalds decision at paragraph [25] and I include it below;

[31] MSS Security submits that they did take all reasonable steps. The two steps they took were to mail out the information to employees and to post the information on the employee intranet.

[32] On the first step, MSS Security agree with the Union that the information was mailed out to employees on 28 September 2012. MSS Security provided evidence of their efforts to have the contractor they engaged for the task, Snap Printing, post out the information earlier, on 27 September 2012. 8

[33] It is clear that the bulk of the employees who live in the Melbourne metropolitan area will have received the information by post at some stage during Monday 1 October and those who lived in country areas will have received the documentation on Tuesday 2 October 2012 or perhaps by the Wednesday. There was uncontested evidence that 87% of the employees who were balloted live in the Melbourne metropolitan area.

[34] Additionally, each employee was also sent on 28 September 2012, information as to the timing of the vote and the voting method from the company responsible for the conduct of the vote, the Australian Electoral Company. 9

[35] Notification of the time, place and method of the vote was also posted on the employee portal notice board of the MSS Security website on 28 September 2012 at approximately noon. 10 Mr. Carey stated that the material was posted on the intranet website when he checked it at 8.00 am on Monday 1 October 2012.11 There was unchallenged evidence of Mr Carey that the employee portal was like a virtual notice board. Mr Carey stated that guards regularly access it to retrieve their payslips and most notices to guards are placed on the employee portal.12 Mr. Carey also gave evidence, which was not contested, that the employee portal is readily accessible, that all employees were familiar with it, and it can be accessed from any device that has internet access.13

[36] However, Counsel for the Union challenged whether the posting of the information on the notice board of the intranet was an effective means of notifying employees and that it did not satisfy the obligations under section180(3) of the Act. The Union submitted that;

[37] Mr Carey conceded on cross examination that there was no direction to security officers that they must check the portal on a daily or regular basis and that not every employee has access to a work computer. 15

Consideration and conclusion

[38] I agree with MSS Security that the correct approach is the one set out in the McDonalds case. That is, did the employer take all reasonable steps to comply with its obligations? In the circumstances of this case, the information, despite the best reasonable steps taken by MSS Security, was posted out a day later than requested. In any case, the vast bulk of the employees (87%) will have received the written information on the first day of the access period, a lesser number on the second day.

[39] Importantly, the relevant information was posted on the notice board of the intranet prior to 8am on 1 October 2012. It is not contested that employees can access the intranet from their home computer, a hand held device as well as from a work computer should they have access to one, that guards regularly access it for payslips and most notices to guards are placed there. In the circumstances I do not thing that it is necessary, in order to satisfy s.180(3) of the Act, that employees be directed to check the portal.

[40] It is possible that some employees did not look at the intranet prior to Monday 1 October 2012 and did not receive the information by post until Tuesday 2 October 2012. However, one should not elevate the test to one of requiring an applicant to “establish in a definitive way that all employees were in fact informed of the matters” 16

[41] The evidence is that the employer took steps to comply with its obligations under section 180(3) of the Act by notifying employees via the intranet as well as by post. It is clear that the employees could access the information on the intranet prior to the access period. I accept the evidence of Mr. Carey that the intranet is readily accessible to employees. It is not necessary that every employee have access to a work computer for this to be so. I am also satisfied that the employer sought to have the information mailed to employees before the start of the access period. While it is clear that employees will not have received the information by mail until Monday 1 October 2012 for the bulk of employees and later for the minority, I believe the steps taken by the employer in combination, that is the intranet posting and the mail out demonstrate that the employer took all reasonable steps to notify relevant employees in accordance with s. 180(3) of the Act.

Requirements of section 180(5) and (6) of the Act

United Voice Ground of objection (c)

[42] The Union alleges that when explaining the terms of the proposed enterprise agreement and the effect of those terms to the relevant employees, MSS Security failed to take into account the particular circumstances and needs of the relevant employees(s.180(5) and (6) of the Act).

The evidence and the law to be applied:

[43] Question 4.1 of the Form F17 asks the following of the deponent;

[44] United Voice submit that the response of MSS Security to question 4.1 of the Form F17, where MSS Security states that none of the employees covered by the Agreement are of a Non-English speaking background is false, and the fact is that many employees of MSS Security that will be covered by the Agreement come from a Non-English speaking background. This fact is conceded by MSS in their submissions 17 and was also conceded by Mr Carey.18 The Union submits that MSS Security did not satisfy their obligations under this provision of the Act.

[45] MSS Security submit that they did take reasonable steps to deal with their obligations in respect of sections 180 (5) and 180(6) of the Act. MSS Security argued that they gave to employees throughout the access period an Explanation Document which stated:

[46] MSS Security further submit that there were nine employees under 21 (all 19 years or older).

[47] MSS Security submit that while there were, in fact, relevant employees of Non-English speaking backgrounds, all employees are required to be able to read and write in English prior to undertaking training with MSS Security and that all employees must complete a language, literacy and numeracy test. Further, evidence was provided by Mr Carey that no-one contacted MSS Security to advise that they had difficulty understanding the terms of the Agreement. 20

[48] The McDonalds case sets out the approach to be taken when applying these sections of the Act. In the McDonalds case, the Full Bench stated

Consideration and Conclusion:

[49] In the McDonalds case, the Full Bench made clear that there is no need for a differentiated method of explanation in circumstances where the method of explanation is adequate for all groups of employees. 22

[50] I accept the evidence of MSS Security that there was no need for a differentiated approach in the circumstances of this case. Further, MSS Security circulated an explanation document that provided recourse for anyone who had difficulties or knew of anyone who had difficulties to contact their manager or Mr Phil Carey. I am satisfied in the circumstances that MSS took into account the particular circumstances and needs of the relevant employees.

Requirements of section 185(2) of the Act

United Voice Ground of objection (d)

[51] The Union alleges that in making its application for approval, MSS Security failed to comply with the requirements of s185(2) of the Act, which provides that the application for approval must be accompanied by a signed copy of the agreement.

The evidence and the law to be applied:

[52] Section 185(2) of the Act prescribes that an application for approval must be accompanied by a signed copy of the agreement. Section 185(5) provides that the regulations may prescribe requirements relating to the signing of enterprise agreement. Regulation 2.06A of the Fair Work Regulations 2009 (the Regulations) prescribes the requirements for the signing of an enterprise agreement. The regulation provides that an enterprise agreement must be signed by, “at least 1 representative of the employees covered by the agreement”. 23 Sub item 3 provides that “[u]nless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement”. Sam Krikelis is the employee representative who signed the agreement.

[53] The Union submits that at the time the Agreement was signed by Mr Krikelis, he was engaged in a role that was not covered by the classification structure contained in the Agreement and therefore he was not, “...in a class of employees who will be bound by the agreement” at the time he signed the document. 24

[54] MSS Security submit in response that Mr. Krikelis is currently classified as a Level 5 security officer under the currently applicable enterprise agreement and will also be a Level 5 security officer under the Agreement that is before me for approval. Mr. Carey gave evidence that Mr. Krikelis is permanently placed as a senior officer at the GE site in Burnley as a Level 5 Security officer and that for short periods of time he is seconded to assist with the Australian Grand Prix and the Victorian Spring Racing Carnival.

[55] It was conceded by MSS Security that Mr. Krikelis was not at the Burnley site at the time of the vote; that he was on secondment at that time. It was submitted, and not challenged by the Union that Mr. Krikelis is now back at the Burnley site in GE. There was no challenge to evidence that while at Burnley Mr. Krikelis is classified as a Level 5 security officer and will be covered by the Agreement.

[56] The Union also make a secondary submisssion that Mr. Krikelis had no authority to sign the document as a “representative” of employees as he was not a bargaining representative, a union representative or had been elected or appointed in any way by any employees to be their representative.

[57] This submission is grounded in an interpretation of “representative of employees” that was I was urged by Counsel for the Union to adopt. Counsel for the Union stated that;

Consideration and Conclusion:

[58] Essentially, to accept the Union’s submission on the point requires me to find that because Mr. Krikelis was not at Burnley at the time of the vote, this rules him ineligible to sign the Agreement under the terms of sub item 3 of Regulation 2.06A of the Regulations. I find this be an overly technical approach to this provision. The key consideration is that Mr. Krekalis is on the evidence an employee in a class of employees who will be bound by the Agreement. At the time of the vote for the agreement, Mr.Krikelis was an employee of MSS Security, seconded by MSS Security to a separate site. I find Mr. Krikelis was an employee at the relevant time and he is in a class of employees who will be bound by the agreement.

[59] In relation to the Union’s second submission, I do not agree with the Union urged interpretation. I agree with the submissions of MSS Security that if the legislature intended that only a bargaining representative could sign an enterprise agreement as representative on behalf of employees, then the term “bargaining representative” would have been used.

[60] Further, the practical outcome of the interpretation the Union urges me to take would lead to a situation where, in the case where there is no employee bargaining representative or union bargaining representative, no-one could sign the agreement. I agree with the submissions of MSS Security that such a situation would be absurd and could not have been intended by the legislature.

[61] For these reasons I consider the Agreement to be validly signed in accordance with the Act and the Regulations.

Grounds related to genuinely agree (s.186(2)(a))

United Voice Ground of objection (e)

[62] The Union alleges that the voting method chosen by MSS Security was inappropriate in the circumstances.

The evidence and the law to be applied:

[63] The voting method used by MSS Security for this Agreement involved three options for employees to take up: internet voting, telephone voting or attendance voting. The polling was conducted by a private company known as the Australian Electoral Company.

[64] The Union’s submission on this point is that it was inappropriate, given the history of the matter, the particular circumstances of the employees involved and the expressed views of some of those employees, to use any organisation other than the Australian Electoral Commission and that it was inappropriate at least to use a telephone voting system. 26

[65] The Union’s submission outlines the history of disputation between the Union and MSS Security as to the manner of conducting voting in the previous unsuccessful ballots as well as the most recent. It is clear from these submissions and the evidence lead in this matter that in at least one previous vote MSS Security sought to use a polling method that involved the polling company ringing eligible voters asking them to cast their vote, rather than employees calling the ballot company of their own free will.

[66] It is apparent that following proceedings at the Commission where Commissioner Lewin expressed concern at such a method, it was not used for the third vote and relevantly for these purposes, not used for the vote for the Agreement under consideration in this matter.

[67] MSS Security’s response to the Union’s submission on this point can be summarised as follows;

[1] Evidence was led that the Australian Electoral Company had successfully conducted many ballots for enterprise agreements for large organisations that had been approved by the Commission.

[2] Evidence was also led that MSS Security made adjustments to the voting process, reflecting the view expressed by Commissioner Lewin, which provided anonymity and choice.

Consideration and conclusion

[3] I agree with the totality of the submissions of MSS Security on this point. I find there is nothing in Union’s submissions that gives rise to concerns that the vote was not properly conducted. There is no requirement to use the Australian Electoral Commission to conduct ballots. While some employees may have preferred this not be so, this is not a basis for finding that the vote was not properly conducted.

[4] While I agree with the sentiment attributed to Commissioner Lewin that a process involving employees being called by an organisation conducting a ballot gives rise to a number of concerns, the submissions of the Union did not address the fact that this view was apparently accepted by MSS and the method of polling altered. In the circumstances I do not accept that the voting method was inappropriate.

United Voice Ground of objection (f)

[5] The Union alleges that employees were misinformed about the content of the proposed agreement and the process surrounding the agreement (see s. 180(5)(a)).

The evidence and the law to be applied:

[6] The Union claims that MSS Security employees were provided with misleading written information and some were subjected to representations which included misleading information. The sources of the alleged misleading information are the “Explanatory Document”, the “Are you confused” document and allegations some employees were told that if they did not vote yes for the Agreement that they would not receive the sign on bonus. I will deal with each matter in turn.

The Explanatory Document

[7] This document purported to summarise the major differences between the Agreement for the vote and the existing agreement.

[8] The Union claims that this document was misleading because it did not mention the loss of access to triple time after working ten hours on a public holiday; that some crowd control work had been reclassified from Level 2 to Level 1 and that the reference “shiftwork definitions have changed with respect to new employees” did not clearly explain that the entitlement to be paid a shift loading on all hours worked during a shift had been removed.

[9] MSS Security does not contest the factual claims of the Union regarding the contents of the document. However, they submit that the requirements of section 180(5)(a) of the Act have been met. They point to the front page of the “Explanatory Document” making clear that the “Explanatory Document” was not a substitute for reading the full proposed agreement.

[10] MSS Security cited the McDonalds case as authority for the proposition that the employer need only take reasonable steps to ensure that explanations are provided 27 and the decision of National Tertiary Education Industry Union v University of New South Wales28as authority for the proposition that terms of section 180(5)(a) of the Act do not require the employer to fully explain every single clause to the employees.29

[11] In general terms, I agree with the submissions of MSS Security that not every single clause needs to be explained. However, circumstances could arise where the omission of information in an explanation document, or the highlighting of some issues over others, could be used in a manner to mislead. If that was the case, that would indeed impact on whether an agreement was genuinely made. However, a determination needs to be made taking into consideration the facts in each case.

[12] In this matter, the “Explanatory Document” reads as a reasonable attempt to explain the proposed agreement. It attempts to summarise the major differences in Part A, but then goes on to explain in considerable detail the terms of the proposed agreement and the effect of those terms.

[13] The union raised no issue with the terms of Part B of the document. I think the fact that the summary of major changes in Part B does not mention every single change is hardly surprising and I do not construe it as misleading. I am not persuaded by the Union’s submission that the “Explanatory Document” provides a basis for me finding that employees were misinformed about the content of the Agreement.

The “Are you confused” document.

[14] During the access period, MSS Security distributed a document titled “Are you confused” which had a sub heading titled “no cuts to conditions”. This document does not mention the reduction to public holiday penalty rates when working more than 10 hours and that some employees performing crowd control duties may be classified at a lower level. The Union claims this misrepresents the effect of the Agreement on employees.

[15] MSS Security submit that the “no cuts to conditions” heading needs to be seen in its proper context. MSS Security claim the document was a response to Union claims, circulated amongst employees, that there were a number of cuts to conditions. MSS Security point out that the balance of the text in the document is in fact a response to the claims of the Union. MSS Security referred me to the first instance decision of Vice President Lawler in University of New South Wales (Professional Staff) Enterprise Agreement 2010 30 where His Honour stated;

[16] While the decision of VP Lawler in that matter was the subject of appeal, no issue was taken by the Full Bench with the approach of his Honour on that point. 32

[17] It is true that looked at in isolation, the heading “no cuts to conditions” could be misleading. However, I agree with the approach urged by Vice President Lawler. In this matter, there is not a proper basis for concluding that failing to mention the two changes referred to by the Union, the public holiday penalty rate for work over 10 hours and the crowd control reclassification was determinative in getting the vote over the line.

Allegation employees were told that if they did not vote yes for the agreement that they would not receive the sign on bonus.

[18] The Union submits that misrepresentations were made to employees about the terms on which they would be eligible for the sign on bonus. The claim of the Union is as follows:

[19] The Union argues that employees who have been mislead and induced to vote cannot be said to have genuinely agreed. 34 The Union relies on the evidence of Mr G Dain, a union organiser, who stated;

[20] Attached to Mr Dain’s statement were two “violation reports” (exhibit GD-3 and GD-4) which record conversations Mr Dain had with members regarding this issue.

[21] MSS Security argues that I should not consider the “violation reports” because they contain “inadequate hearsay material, undated short entries from unidentified persons”. 36 MSS Security also argue;

[22] I agree with the submissions of MSS at (b), (c) and (d) on this point. The evidence of Mr. Dain was largely hearsay and should be accorded little weight. His evidence does not provide a sufficient evidentiary basis for me to conclude that there was an attempt to mislead employees on the application of the bonus payment, particularly when measured against the clear evidence that the contrary approach was taken by the company.

United Voice Ground of objection (g)

[23] The Union submitted at first instance that there were a number of employees who voted for the Agreement who were not eligible to vote for a variety of reasons. As detailed above, the Union made application for an Order for the production of certain documents by MSS Security, relating to employment records of those persons who voted in the ballot. That Order was issued by me on 13 December 2012, for production of documents prior to the hearing on 17 December 2012.

[24] MSS Security advised me at the hearing on 17 December 2012 that they did not have documents as outlined in the Schedule to my Order in a consolidated form. MSS Security advised that they had provided a document which included all information ordered except information related to the work site of each relevant employee. 38 MSS Security objected to providing that information on the basis that it was commercially sensitive and was unnecessary.39

[25] The Union pressed for such information to be provided, on a basis, amongst others, that a number of work sites of MSS Security are not covered by the Agreement and whether or not persons at those sites voted in the ballot was an important issue. 40 The Union offered to make undertakings to deal with the issue of commercially sensitive material.

[26] After a short adjournment to allow for discussions on the matter, the parties advised me that it had been agreed that Ms Keogh of the Union would attend the offices of MSS Security on 18 December 2012 and that MSS Security would provide her with a list of names of individuals who had worked at one of the sites excluded from the Agreement in the three month period before the vote commenced. 41 It was understood that the Union would make an appropriate undertaking to keep this information confidential.

[27] The information provided pursuant to the Order enabled the Union to make more detailed submissions on this matter that they filed on 7 January 2013. The Union submitted that the material supports the Union’s allegation that many of the people provided with an opportunity to vote in the ballot, and who are likely to have voted in the ballot, were persons who would not be covered by the Agreement.

[28] The Union further states “[w]hen all of those persons are tallied, the result is such that it cannot be said that the Tribunal can have any confidence that the requirements of section 186(2)(a) have been met - that the agreement has been genuinely agreed to by the employees who will be covered by it.” 42. In all, the Union claim at least sixty people on the list of four hundred and ninety four people were ineligible to vote.

[29] The persons that the Union alleges were ineligible to vote are in four groups.

Group One - People who had not worked for MSS Security at all, at the time of the ballot.

[30] Of the 494 people on the list provided by MSS Security, the Union allege that 7 employees show as never having worked a shift of work for MSS Security.

[31] MSS Security argues that the 7 employees in question were on various forms of approved leave during the time of the vote. Supporting evidence was provided on the point by Mr P Carey, who by Affidavit, provided detailed information about the seven employees specified. 43 However, it is conceded by Mr. Carey for MSS that one employee, Mr G Carrington should not have voted for the agreement.44

[32] Mr. Carey was not challenged on this evidence. It is clear on the evidence that six of the seven employees were employees of MSS Security at the time of the vote, that they were on leave at the time and that they were eligible to vote. I accept that Mr. Carrington was however, ineligible and should not have voted.

Group Two - People who had not worked for MSS Security at all in the previous three months

[33] The Union claim a further 36 persons on the eligible voter list had not worked any shift at all for MSS Security in the previous three months (before the date of the vote). 45 It is claimed that the 36 employees, as they had not been employed in the previous three months cannot be considered to be “regular and systematic” employees and were therefore ineligible to participate in the vote. 33 of the 36 employees are nominated as casual employees.

[34] Submissions in reply from MSS Security assert that the data relied on by United Voice is wrong and should be disregarded by the Commission. Evidence is provided by Mr P Carey that the United Voice data contained in the Union’s submissions is incorrect as to the latest date of working for 25of the 36 employees. Mr P Carey, through Affidavit, attached a table created from payroll records in support of this assertion. 46

[35] The Affidavit of Mr Carey divides the 36 employees in question into three categories. 47

[36] The first category is described as “major event casuals”. The evidence of Mr Carey is that there are 24 people in this group. The second category of nine casuals is described as “regular casuals (not major event)”. The third and remaining category of 3 employees are described as “full time” employees, not casuals.

[37] It is simplest to deal with third category “full time employees” first. The uncontested evidence of Mr Carey is that of the three full time employees, one was on unpaid sick leave and the other two employees work at the Holden Fishermans Bend site and are eligible to vote. 48 I accept these 3 employees were eligible to vote.

[38] The second category “regular casuals (not major event)” contains 9 individuals. 49 Of these 9 employees, 8 had worked between 4 and 13 of the 14 weeks prior to the vote. The remaining employee had worked all of the six weeks prior to the vote.

[39] The first category “major event casuals”, made up of 24 employees, are casuals who are engaged to work at major events, namely the Victorian Spring Racing Carnival and the Australian Grand Prix. MSS Security submits that the Table attached to Mr Carey’s Affidavit demonstrates that the 24 people had regular and systematic engagement at major events and were eligible to vote.

[40] MSS Security submit that while some people in the first category of “major event” casuals may not have worked in the three months prior to the vote, they should still be regarded as “regular and systematic” for the purposes of determining eligibility to vote.

[41] Both MSS Security 50 and the Union51 referred me to the decision of Vice President Lawler in University of New South Wales (Professional Staff) Enterprise Agreement 201052 where His Honour stated;

[42] I agree that this is the correct approach to determine the eligibility of casual employees to vote for the agreement.

[43] Having considered the evidence of Mr Carey, it is clear that the second category of 9 “regular casuals not major event” employees were regularly and systematically engaged in the period leading up to the vote. There is no basis for supposing this will not continue. I find these employees were eligible to vote.

[44] As to the first category of “major event” casual employees it is clear on the evidence of Mr Carey that at least 23 of the 24 employees have regularly worked over the last 3 years at either the Australian Grand Prix or the Victorian Spring Racing Carnival or at both. The exception is Harshil Bhatt who has not worked since November 2010 at the Victorian Spring Racing Carnival.

[45] The Union asks me to determine that people who did not work in the preceding three months to the ballot are not “regular and systematic” employees of MSS Security. While this may be an appropriate criterion in some circumstances for determining what constitutes “regular and systematic”, there is no basis to apply it as a rigid approach. The facts in each case need to be considered.

[46] In this matter, there are employees who it can be said are “regularly and systematically” engaged at major events on a casual basis and are not otherwise engaged. These employees will be covered by the Agreement. There is no evidence, with the possible exception of Harshil Bhatt, for supposing that these arrangements will not continue with these employees. There is no basis for considering that employees who are “regularly and systematically” engaged at a major event are not “regular and systematic” employees in the sense considered by Vice President Lawler.

[47] As discussed above, the only exception on the evidence is Harshil Bhatt, who has not worked at a major event since November 2010. The fact this person has not worked since that time means they have missed the last four opportunities (of the two opportunities per year presented) to work at a major event. While this person did work at three events in 2009 and 2010, there is a basis for supposing that the work will not continue for this person. I find that Harshil Bhatt was not eligible to vote.

[48] On the basis of the above reasoning, I find that 35 of the 36 employees considered ineligible by the Union to have been eligible to vote.

Group three - people who had worked for MSS Security on five or less occasions

[49] The Union submits that there are a further 12 employees who are ineligible to vote on the basis that they have worked for MSS Security on five or less occasions.

[50] The Union asserts that “...simply having worked a couple of shifts for the Company is not sufficient to meet the test being contemplated by Vice President Lawler...”. 54

[51] MSS Security concedes that one employee of the 12 in this category, Adam Onder, was ineligible to vote as he was not employed at the time of the vote. MSS Security say this was an error. 55

[52] Of the remaining 11 employees, MSS Security submits that they are eligible as they are “regular and systematic” employees, and provided evidence from Mr Carey by Affidavit. 56. Table C of Mr Carey’s Affidavit states that all of the remaining 11 employees, with the exception of David Paterson, were regularly employed at major events. Following my reasoning in Group Two above, I find that 10 of these employees were eligible to vote as “regular and systematic” employees. The remaining employee is Mr Paterson.

[53] Mr Patterson is not a major events worker but a causal employee who met the criteria of regular and systematic used by MSS Security for casuals employed other than at major events. That is, casuals who have performed more than three shifts for MSS Security in the previous three months.

[54] While this is not a great deal of work performed, it is a practical and reasonable approach in the circumstances of this case to determine what is “regular and systematic”. Accordingly, I see no reason that Mr Patterson should be excluded as an eligible employee.

Group four - people whose primary work site will not be covered by the proposed agreement

[55] The Union submits that there are 6 employees who fall into this category. One of the employees, George Carrington was already dealt with in Category 1 and it is conceded he was ineligible to vote. MSS Security also concede that Mr Sohi should not have voted. 57

[56] Of the remaining four employees, Thelma Hall predominantly works at Crown Casino which is not covered by the Agreement. However, the evidence of Mr Carey is that Ms Hall also regularly works at the two major events including the last three Grand Prix events and the last two Victorian Spring Racing carnivals. 58 Consistent with my earlier reasoning, I consider that Ms Hall was eligible to vote.

[57] The remaining three in this category, Ian Murley, Barbara Smith and Dario Spiveri are all on non-permanent secondments to Melbourne Airport which is not covered by the Agreement. 59 However on the evidence of Mr. Carey, when their secondment ends, they will return to their base and will be covered by the agreement at the time.

[58] Indeed, the facts are similar to the situation of Mr. Krikelis, the signatory to the Agreement dealt with earlier in the decision. Following the same reasoning that I applied to the situation with Mr. Krikelis, I find that these employees are eligible to vote. The only difference on the facts with Mr. Krikelis is that it is known that he has returned from secondment to work in an area covered by the Agreement. With the three airport secondees, the evidence of Mr. Carey is that he expects them to end their secondments but does not know when. 60 However, I do not consider that it could have been the intention of the legislature to exclude employees who have taken up a secondment opportunity from voting for an Agreement that will cover them when their secondment ends.

Conclusion on eligible employees

[59] If follows from my above reasoning that three employees, Adam Onder, George Carrington and Harshill Bhatt were not eligible to vote in the ballot.

[60] MSS referred me to the decision of Vice President Lawler in the University of New South Wales (Professional Staff) Enterprise Agreement 2010 where His Honour observed that the fact of votes being cast by persons who were not entitled to vote would not constitute a reasonable ground within s.188(c) if it is clear on the evidence that such votes would have made no difference to the outcome. 61 Counsel for the Union conceded that those observations were made in that case.62 However, Counsel for the Union asked me to consider this against the context of the making of this Agreement in that the vote did not come as a “babe in the woods” given the industrial history.63 However, this does not provide a basis for rejecting the approach of His Honour in the University of New South Wales case.

[61] As the vote approving the ballot was 217 in favour and 161 against, it is not possible that the inclusion of the 3 ineligible employees altered the outcome of the vote. That outcome is so even if I am incorrect in my reasoning on the eligibility of the 3 employees on secondment to Melbourne Airport. Therefore the error in including these employees is not a basis for finding the requirements in s.188(c) of the Act were not met.

The BOOT analysis and the undertakings

[62] When the Agreement was first considered by me, I raised concerns that some aspects of the Agreement would operate in a manner that would not allow me to be satisfied that the agreement passed the better off overall test as required by the Act.

[63] The Union, in their first submissions opposing the Agreement’s approval, raised additional matters to which they say I should have regard in relation to the better off overall test. I agreed the additional matters raised by the Union regarding the better off overall test were relevant to be considered.

[64] Ultimately, there were four issues identified as relevant to the application of the better off overall test. In summary these are;

[1] Each of these components raised concerns that the Agreement would not pass the better off overall test as outlined in s.193 of the Act. MSS Security was advised by me that I had formed that view.

[2] Subsequent to the first hearing of this matter on 17 December 2013, MSS Security provided me with a number of proposed undertakings pursuant to section 190 of the Act. These undertakings were provided to satisfy my concerns.

[3] Pursuant to section 190(4) of the Act, I sought the views of the bargaining representatives for the Agreement as to those undertakings. I received two responses to my correspondence. One response was from an employee bargaining representative who supported the undertakings. The other response was from the Union, who opposed the undertakings provided and provided extensive submissions detailing the basis of the opposition.

[4] MSS Security provided material in response to the Unions views on 25 January 2012.

[5] In summary, the Unions views are that;

[6] I will deal with each of the proposed undertakings in turn.

Undertaking 1

[7] The Agreement has a “voluntary overtime” scheme set out in clause 25. The relevant modern award pay rates are 150% for the first two hours of overtime worked and 200% for subsequent time and time worked on Sundays, as well as 250% for time worked on public holidays. The voluntary overtime scheme allows for the payment of all overtime hours at 19% provided the hours are voluntary. It is clear that employees covered by the Agreement who work more than 5 hours of overtime per week will be worse off under the Agreement than they would if the relevant modern award applied.

[8] To address this concern, MSS Security has offered the following undertaking;

[9] The effect of this is to introduce a cap on the number of “voluntary” overtime hours that can be worked to average 40 hours in eight weeks.

[10] The Union submitted that I cannot accept this undertaking as it will cause financial detriment to employees in breach of section 190(3)(a) of the Act, as the change would create a financial disincentive to offer employees the opportunity to work overtime in excess of an average of 5 hours per week. The Union submit this situation is analogous to the example provided in the Explanatory Memorandum to the Fair Work Bill at [807] where an undertaking to not work on Sundays could not be accepted to deal with better off overall test concerns as it would cause financial detriment to an employee covered.

[11] The Union claims “there is no doubt that if this undertaking was implemented, the work that is currently performed by permanent employees would be reallocated to casuals (direct or indirectly), once they exceed the average 5 hour cap”. 65 The Union led evidence that sought to establish the current levels of utilization of voluntary overtime by existing employees. Based on that evidence, the union submits that employees had an expectation, based on past experience, of a particular level of voluntary overtime that was often in excess of an average of 5 hours per week and therefore they will suffer financial disadvantage if the level of voluntary overtime they can access is capped at 5 hours per week.

[12] There is debate between the parties about the levels of voluntary overtime worked in the past. Evidence was provided by Ms. Johnston and Mr. Carey on the point. Ms. Johnston a United Voice organiser provided evidence based on a “call out” survey the Union conducted. Her evidence was that of the 88 people spoken to, 50 answered yes to the question, “do you generally work more than 5 hours per week VOT”. 66 The credibility of the survey co-ordinated by Ms. Johnston was contested by MSS Security. The uncontested evidence of past hours of voluntary overtime worked comes from Mr. Carey’s evidence. His evidence is that in two sample periods that he analysed, 12.9% of employees in one period and 12% in a second period worked in excess of 5 hours voluntary overtime.67 Counsel for the Union referred to and relied on the evidence of Mr. Carey while not conceding that the evidence of Ms Johnston was not authoritative.68

[13] It is clear on the evidence that some employees of MSS Security, at least 12%, who will be covered by the Agreement have in the past worked in excess of 5 hours voluntary overtime per week. However, I am being asked in effect to forecast future outcomes based on historical data, and find that there will be financial detriment for at least some of the employees. I cannot rely on the evidence to make such a prediction. For example, it may be that MSS Security will offer overtime to employees over the 5 hour cap at non voluntary overtime rates. In any case, I do not think that section 190 requires the Commission when considering financial detriment to attempt to anticipate or forecast outcomes in such a manner.

[14] When compliance with the proposed undertaking occurs, an employee who works voluntary overtime can only be better off under the Agreement as compared with the same work performed under the relevant modern award. The undertaking proposed does not change the nature of the Agreement in the manner considered by the Explanatory Memorandum to the Fair Work Bill. There was not an entitlement to a minimum number of hours that can be worked as voluntary overtime under the Agreement that will be limited by the undertaking. Further clause 25.1.4 clearly indicates that MSS Security maintains discretion over what, if any, voluntary overtime would be provided.

[15] For these reasons I do not consider that the undertaking proffered by MSS Security causes financial detriment within the meaning of 190(3)(a) of the Act.

Substantial change

[16] The Union submit that the undertaking represents a “substantial change” within the meaning of s.190(3)(a) of the Act and therefore cannot be accepted. A decision of Commissioner Ryan in Hyatt Ground Engineering Pty Ltd 69 (Hyatt) is cited as a basis for interpreting the term “substantial”.

[17] MSS Security cite a further decision of Commissioner Ryan in Icon-Septech Pty Ltd Employee Enterprise Agreement 2012 70 (Icon) where he departed from the approach in Hyatt to interpreting the word “substantial”.

[18] With respect to the Commissioner, I find both approaches to be overly technical and in that context at odds with the approach adopted by the Full Bench in the McDonalds case. 71 “Substantial” should be given its ordinary meaning and considered against the circumstances on each case. I note that the approach of the Full Bench in McDonalds case was cited by Commissioner Ryan in Icon.

[19] In the circumstances of this case, it is conceivable on the evidence, that employees voting for the Agreement may have had an expectation of access to levels of voluntary overtime in excess of 5 hours per week. Against that background, Counsel for the Union expressed the practical approach well where he stated:

[20] I agree with Counsel for the Union that taking this approach may well lead to the Commission determining that a particular undertaking proffered may constitute a substantial change in the circumstances of a particular case. However, in the circumstances of this case, the terms of the Agreement did not provide a right or guarantee of access to voluntary overtime. To the contrary, the terms of the Agreement allowed for the employer to exercise discretion over the amount of voluntary overtime offered.

[21] In the circumstances of this case, the undertaking does not result in substantial change to the Agreement. In effect, it imposes a limit on voluntary overtime. This limit could have been imposed by the employer at its own discretion under the terms of the Agreement. Against that background it cannot be said to represent a substantial change.

[22] On the second day of hearing, Counsel for the Union made a further submission going to the general discretion of the Commission to accept an undertaking. While these submissions were made in respect to the undertakings as whole, it was in large part directed to the voluntary overtime undertaking. 73 The submission was as follows:

[23] Following this approach, Counsel for the Union submitted that “...as a matter of discretion conduct which we say is underpinned by a vice should not in the general discretion of the Commission be accepted”. 75

[24] In response, MSS Security noted that employers often exercise discretion over the allocation of rosters, shifts, overtime and other matters. The fact that they do so does not constitute adverse action. Adverse action, “...goes to...primarily where you’re treated differently to someone else because of that right”. 76

[25] I agree with the submissions of MSS Security on this point. Adverse action requires that there be a causal link established between the action and a workplace right. In this case there is discretion to offer or not offer overtime of a particular type, be it voluntary or not voluntary. There is not a basis for accepting the course urged on me by Counsel for the Union to not exercise my discretion to accept the undertaking.

Undertaking 2

[26] Clause 21.4 provided for rates of pay to new employees which are less than the relevant modern award.

[27] To address this concern, MSS Security provided the following undertaking;

[28] The Union submit that this undertaking does not rectify the issue in relation to the better off overall test. This is because the undertaking provides simply that employees will be paid award rates. In that sense, the Union submit that employees are not better off.

[29] Were there no other benefits in the Agreement for new employees, I could accept such an argument. However, it is clear that there are other beneficial provisions, other than the rates of pay flowing to new employees, not available under the relevant modern award.

[30] The BOOT as the name implies, requires an overall assessment to be made. 77

[31] The more beneficial terms include;

[32] Overall, I am satisfied that new employees are better off overall when the undertaking proffered by MSS Security is considered.

Undertaking 3

[33] The Agreement provides for rates of pay for attendance at “Special Events”. These rates of pay are contained in Schedule J of the Agreement. The special event rate includes allowances, shift loadings, casual loadings, weekend penalty rates and work on public holidays.

[34] Depending on the days worked during “Special Events”, I formed a view that there is potential for employees to not be better off overall when being paid under this provision.

[35] In order to satisfy my concerns, MSS Security has proposed an undertaking in the following terms;

[36] The Union claim that this undertaking should not be accepted as it involves substantial change to the agreement and is unworkable as it is too complex. I was referred by the Union to the approach I adopted in E.C. Birch Proprietary Limited 78 (E.C. Birch) where a similar reconciliation clause was rejected in that matter as a basis for satisfying my concerns about that particular agreement.

[37] The decision in E.C. Birch was related to the facts and circumstances in that particular case, and the particular facts and circumstances need to be considered in each case. However, the approach I adopted in E.C. Birch, following the approach of Commissioner Roe in Falls Creek Alpine Resort Management 79 provides a practical basis through which one can assess the appropriateness of using a reconciliation type undertaking to satisfy a concern.

[38] In this case, I am satisfied on the evidence of Mr Carey that there will be a low number of employees potentially affected by the proposed reconciliation undertaking;

[39] I am satisfied the reconciliation undertaking does not involve substantial change and is not unworkable or too complex.

[40] The Union raises a secondary issue with the proposed undertaking in that it does not deal with the failure to meet the better off overall test. This is because, the Union submit, the first part of the undertaking provides that “for the period of that event they will be paid the sum they would have received under the Award”. This would leave employees in the same position as they would have been under the relevant award and they would not be better off overall. I agree with this submission.

[41] In response to this claim, while not conceding the point raised by the Union, MSS Security has offered an additional amended undertaking that includes the words “plus 1%”.

[42] Pursuant to section 190(4) of the Act, I sought the views of the bargaining representatives for the Agreement as to the amended undertaking. I sought the views of United Voice at the hearing of 27 February 2013 and the Union advised that it didn’t alter the substance of the objection outlined in their submissions. 81 I wrote to all bargaining representatives and did not receive any views for employee representatives in relation to the amended undertaking.

[43] I have determined that the amended undertaking satisfies my concerns about this aspect of the BOOT and meets the requirements of section 190 of the Act. I have sought the views of the bargaining representatives as required by section 190(4) of the Act.

Undertaking 4

[44] Clause 9.5 of the Agreement provides that for a period of time, employees “in training” at particular sites can be paid at one level lower than the pay rate that applies at that particular site.

[45] This raises a concern under the better off overall test. I expressed concern about the lack of any time frame for the operation of such an arrangement. When applied in the workplace, I was concerned that, over time, there could be a blurring between undertaking training and actually doing the work such that there would be a disadvantage to employees.

[46] An undertaking was ultimately proffered by MSS Security in the following terms;

[1] This undertaking provides some certainty around the timeframe for the operation of such a training arrangement.

[2] The Union submit that this undertaking does not deal with the concern, that at best it “results in the period of disadvantage being limited to a period of time”. 82

[3] I do not agree with the submission of the Union on this point. The evidence of Mr Carey is that when someone is training they are a supernumerary, not actually performing the duties at that level. 83

[4] Again, taking a practical approach, providing that the arrangement is of a limited duration and is a genuine training arrangement, I do not consider the provision to be a disadvantage. The proposed undertaking satisfies my concerns in this regard.

Conclusion

[5] For the above specified reasons, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[6] The Applicant has provided written undertakings as described above. A copy of the undertakings given is attached to this decision at Annexure A. As outlined above, 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.

[7] The undertakings now form part of the Agreement and a copy will be kept on the file. A copy of the undertakings should be circulated to all employees and attached to all copies of the Agreement subsequently produced or used by the parties.

[8] United Voice, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 March 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Appearances:

R Dalton of Counsel and R Levine solicitor for the Applicant

E White of Counsel for United Voice

Hearing details:

2012

Melbourne

December 17

2013

Melbourne

February 27

Annexure A:

 1   See Further Submissions of United Voice, filed 7 January 2013, at [3]

 2   Outline of Submissions of MSS Security, filed 12 December 2012, [11]

 3   [2010] FWAFB 4602, [42] - [43]

 4   Outline of Submissions of MSS Security, filed 12 December 2012, [13]

 5   Witness Statement of Mr Phil Carey, dated 11 December 2012 at [8]

 6   Outline of Submissions of United Voice, filed 3 December 2012, [16]

 7   Outline of Submissions of MSS Security, filed 12 December 2012, [17]

 8   Witness Statement of Mr Phil Carey, dated 11 December 2012, [19] to [24]

 9   Witness Statement of Leigh Duke Ellis, dated 11 December 2012, [20]

 10   Witness Statement of Elio Mirabella, dated 11 December 2012, [5]

 11   Witness Statement of Mr Phil Carey, dated 11 December 2012, [18]

 12   Witness Statement of Mr Phil Carey, dated 11 December 2012, [13] - [14]

 13   Ibid

 14   PN737

 15   PN385 - 387

 16   McDonalds Australia Pty Ltd v Shop, Distributive and Allied Employees Association [2010] FWAFB 4602, [25]

 17   Outline of Submissions of MSS Security, filed 12 December 2012, [29]

 18   Witness Statement of Mr Phil Carey, dated 11 December 2012, [34]

 19   Outline of Submissions of MSS Security, filed 12 December 2012, [27]

 20   Witness Statement of Mr Phil Carey, dated 11 December 2012, [38]

 21   McDonalds Australia Pty Ltd v Shop, Distributive and Allied Employees Association [2010] FWAFB 4602, [34]

 22   Ibid

 23   Regulation 2.06A (2)(a)(ii) Fair Work Regulations 2009

 24   Outline of Submissions of United Voice, filed 3 December 2012, [28]

 25   PN759

 26   See Outline of Submissions of United Voice, filed 3 December 2012, [34] - [53]

 27   McDonalds Australia Pty Ltd v Shop, Distributive and Allied Employees Association [2010] FWAFB 4602, [30]

 28   [2011] FWAFB 5163

 29   National Tertiary Education Industry Union v University of New South Wales[2011] FWAFB 5163, [33]

 30   [2010] FWAA 9588

 31   University of New South Wales (Professional Staff) Enterprise Agreement 2010 [2010] FWAA 9588, [51]

 32   National Tertiary Education Industry Union v University of New South Wales [2011] FWAFB 5163

 33   Outline of Submissions of United Voice, filed 3 December 2012, [58]

 34   Outline of Submissions of United Voice, filed 3 December 2012, [59]

 35   Witness Statement of Mr Gabriel Ignacio Dain, dated 30 November 2012, [20]

 36   Outline of Submissions of MSS Security, filed 12 December 2012, [54]

 37   Outline of Submissions of MSS Security, filed 12 December 2012, [55]

 38   PN220

 39   PN225-226

 40   PN284

 41   PN330

 42   Further Submissions of United Voice, filed 7 January 2012, [16]

 43   Affidavit of Mr Phil Carey, dated 15 January 2013, [6]

 44   Affidavit of Mr Phil Carey dated 15 January 2013, [25]

 45   Outline of Submissions of United Voice, filed 7 January 2013, [22]

 46   Affidavit of Mr Phil Carey, dated 15 January 2013, [8]

 47   See Table B attached to Affidavit of Mr Phil Carey, dated 18 January 2013

 48   Afficavit of Phil Carey, dated 15 January 2013, [16]

 49   See Table B attached to Affidavit of Mr Phil Carey, dated 15 January 2013

 50   Outline of Submissions of MSS Security, filed 12 December 2012, [63]

 51   Further Submissions of United Voice, filed 7 January 2013, [23]

 52   [2011] FWAA 9588

 53   University of New South Wales (Professional Staff) Enterprise Agreement 2010 [2011] FWAA 9588, [66]

 54   Further Submissions of United Voice, filed 7 January 2013, [26]

 55   Outline of Submissions of MSS Security in Response to United Voice, filed 15 January 2013, [18]

 56   Affidavit of Mr Phil Carey, dated 15 January 2013, [21] - [23]

 57   Affidavit of Mr Phil Carey, dated 15 January 2013, [29]

 58   Affidavit of Mr Phil Carey, dated 15 January 2013, [26]

 59   Outline of of Submissions of MSS Security in Response to United Voice, filed 15 January 2013, [22] and Affidavit of Mr Phil Carey, dated 15 January 2013, [27]

 60   PN934

 61   [2010] FWAA 9588, [69]

 62   PN767

 63   PN767

 64   Outline of Submissions of United Voice in Relation to Undertakings made by MSS, filed 4 January 2013, [10]

 65   Outline of Submissions of United Voice in Relation to Undertakings made by MSS, filed 4 January 2013, [32]

 66   Affidavit of Ms Kathryn Johnson, dated 3 January 2013, [12]

 67   Affidavit of Mr Phil Carey, dated 25 January 2013, [22]

 68   PN1021

 69   [2011] FWA 3527

 70   [2012] FWA 8642

 71   McDonalds Australia Pty Ltd v Shop, Distributive and Allied Employees Association [2010] FWAFB 4602, [13]

 72   PN1069

 73   PN1025

 74   PN1025

 75   PN1027

 76   PN1062

 77   See Armacell Australia Pty Ltd [2010] FWAFB 9985, [41]

 78   [2012] FWA 2313

 79   [2010] FWA 2847

 80   Affidavit of Phil Carey, dated 25 January 2013, [42]

 81   PN998

 82   Outline of Submissions of United Voice in Relation to Undertakings made by MSS, filed 4 January 2013, [66]

 83   PN382

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