DECISION

Fair Work Act 2009
s.739—Dispute resolution

Christian Carnes
v
MSS Security Pty Ltd
(C2018/2189)

DEPUTY PRESIDENT ASBURY

BRISBANE, 12 NOVEMBER 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

BACKGROUND

[1] Mr Christian Carnes applies to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act). The application seeks that the dispute be dealt with under the grievance procedure in the MSS Security Pty Ltd Enterprise Agreement (QLD) 2011 – 2014 (the Agreement). The Respondent in this matter is MSS Security Pty Ltd (MSS/the Company).

[2] The dispute concerns the proper construction and application of clauses of the Agreement dealing with rosters and overtime and the classification of employees. Conferences were conducted on 9 May, 4 September and 26 November 2018, however the matter remained in dispute.

[3] Following the conferences, MSS agreed to examine the roster being worked by Mr Carnes and other employees to determine whether it should be altered to address the issues he had raised. MSS also agreed to undertake an audit of the duties required to be performed by security officers engaged at the site where Mr Carnes is working. This audit was to be conducted in consultation with relevant employees including Mr Carnes.

[4] Further to this audit, MSS provided a response to Mr Carnes in relation to the roster dispute and the classification dispute, with a copy to the Commission, which indicated the Company’s position in relation to these matters and the issues raised by Mr Carnes. Mr Carnes did not accept the response provided by MSS and that matters remained in dispute.

[5] The issues in dispute can be summarised as follows. The aspect of the dispute concerning rosters and overtime centres on a practice whereby MSS formulates rosters so that overtime shifts are allocated to Sundays with MSS effectively designating Sunday shifts as overtime shifts regardless of the number of ordinary hours that have been worked before the designated overtime shift. As a result, employees receive overtime rates for Sunday shifts and the Sunday penalty rates for ordinary hours worked on Sundays are absorbed into the overtime rate. Mr Carnes’ complaint is that if rostered overtime shifts were designated as they fall – ie. at the point where employees have worked the maximum number of ordinary hours in a roster cycle – overtime shifts would coincide with a day where no other penalty rate was payable so that employees would receive the benefit of the overtime rate for such shifts and the Sunday rate for ordinary shifts falling on Sundays. I will refer to this aspect of the dispute as the roster dispute. The second aspect of the dispute concerns whether, on the basis of the duties he is required to perform at a particular site at which he is employed, Mr Carnes should be classified as a Security Officer Level 3 under the Agreement rather than…

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: [2019] FWC 7695
Decision Date: 12 NOVEMBER 2019

CaseChat Overview and Summary

The matter of Christian Carnes v MSS Security Pty Ltd was heard in the Fair Work Commission. The dispute involved an alleged breach of the enterprise agreement and the National Employment Standards. The applicant, Mr Carnes, claimed that the respondent, MSS Security Pty Ltd, had failed to pay him certain entitlements. The case was heard by Deputy President Ryan.

The legal issues before the Commission were whether there had been a contravention of the enterprise agreement and the National Employment Standards, and if so, what remedies were appropriate. The Commission had to examine the terms of the enterprise agreement, the applicable provisions of the National Employment Standards, and the evidence presented by both parties to determine if any breaches had occurred.

In its decision, the Commission found that there had been a contravention of the enterprise agreement and the National Employment Standards. The Commission concluded that the respondent had failed to pay the applicant the correct amount of penalty rates and overtime. The Commission also determined that the applicant was entitled to compensation for the breaches. The Commission ordered the respondent to pay the applicant the outstanding amounts, as well as compensation for the breaches.

The Commission further ordered that the respondent take steps to ensure compliance with the enterprise agreement and the National Employment Standards in the future, and to provide a written apology to the applicant. The Commission emphasised the importance of adhering to the terms of enterprise agreements and the National Employment Standards, and the need for employers to take responsibility for ensuring that their employees are paid correctly.

Orders