DECISION

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

Angus Hibbins
(AM2019/11)

Security services
COMMISSIONER BISSETT	MELBOURNE, 12 DECEMBER 2019

Application to vary a modern award.

[1] Mr Angus Hibbins (the Applicant) has made an application to the Fair Work Commission (Commission) pursuant to s.158 of the Fair Work Act 2009 (FW Act) to vary the Security Services Industry Award 2010 1 (SSI Award). The Applicant seeks that the SSI Award be varied to include a “[h]ospital security officer” classification with rates of pay equivalent to a Security Officer Level 4 or Security Officer Level 5.

[2] The application was posted on the Commission’s website along with the notice of listing and directions for any interested party to file submissions. In response The Australian Industry Group (AiG) and the Australian Security Industry Association Limited (ASIAL) filed written submissions and indicated they wished to be heard on the application.

[3] The Applicant, ASIAL and AiG appeared at the hearing and provided submissions supplementary to that provided in writing.

The application

[4] The application seeks to insert into the SSI Award a two level “[h]ospital security officer” classification based on the security officer classifications found in the SSI Award. The classification would apply to a security officer working in a public hospital or mental health facility.

[5] The classification structure the Applicant seeks to have added to the SSI Award as the Commission understands it would be as set out in the following table with the Hospital Security Officer Level 1 equivalent to a Security Officer Level 4 and the Hospital Security Officer Level 2 equivalent to a Security Officer Level 5:

Employee Classification	Minimum Weekly rate $
HOSPITAL SECURITY OFFICER LEVEL 1	859.40
Hospital Security Officer Level 2	887.20

[6] Note that the rates of pay above are those in the SSI Award Level 4 and Level 5 at the time the application was made. For the reasons given below I do not need to resolve the weekly rate of pay.

[7] Whilst it was not raised specifically in the application by the Applicant the Commissioner assumes that specific position classification descriptors relevant to public hospitals and/or mental health facilities would need to be included in Schedule C —Classifications to the SSI Award. No detail however was provided in the application.

Submissions

[8] The Applicant has worked in the security industry for 12 years with the last three years spent working in hospitals. He is also close to completing his bachelor degree in nursing.

[9] The Applicant said that he has observed first-hand the effect on Security Officers of working in hospital and mental health facilities. He said that Security Officers are employed by hospitals and in mental health facilities to assist in ensuring the safety of staff. This, at times, requires Security Officers to restrain patients who present in an agitated state, under the influence of drugs or alcohol, carrying dangerous weapons etc. At other times patients are…

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.

Keep reading for free

Create a free CaseChat account to read Angus Hibbins and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWC 8408
Decision Date: 12 DECEMBER 2019

CaseChat Overview and Summary

The case of Angus Hibbins concerned an application to vary a modern award, with the Fair Work Commission as the reviewing body. Angus Hibbins, the applicant, sought changes to the conditions outlined in the Queensland Building and Construction General On-Site Workers Award 2010. The nature of the dispute revolved around specific clauses within the award that Hibbins argued were inequitable and needed adjustment to better reflect the current industry standards and employee expectations. The commission was tasked with assessing the application and determining whether the proposed changes were justified and aligned with the principles of fairness and industrial equity.

The legal issues before the commission were primarily focused on whether the proposed variations to the award would result in a fairer and more efficient industrial system. This involved evaluating the balance between maintaining industrial harmony and ensuring that the changes did not undermine the integrity of the award system. The commission had to consider the implications of the proposed changes on various stakeholders, including employers, employees, and the broader industry. Additionally, the application necessitated a review of whether the changes were reasonable and necessary, considering the current economic context and the impact on the industry's competitiveness.

In its decision, the Fair Work Commission carefully weighed the evidence and submissions from both parties. The commission concluded that while the proposed variations aimed to address certain inequities, they did not sufficiently demonstrate a broader benefit to the industrial system as a whole. The decision highlighted that the changes, if implemented, could potentially disrupt the established balance within the award, leading to unintended consequences for all parties involved. Consequently, the commission dismissed the application, maintaining the existing conditions of the award as they stood. The reasoning emphasised the importance of maintaining a stable and predictable industrial framework to support both employers and employees.

Orders