Christian Carnes v MSS Security Pty Ltd

[2019] FWC 7695

[2019] FWC 7695

FAIR WORK COMMISSION

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 his present classification as a Security Officer Level 2. It is not necessary to identify the site at which Mr Carnes was employed or the client of MSS and given the detailed discussion of its security systems I have not done so.

[6] In a statement issued on 5 September 2018 I indicated a preliminary view that based on the material filed by the parties at that point that the questions for arbitration were as follows:

1. On a proper construction of the MSS Security Pty Ltd Enterprise Agreement (QLD) 2011 – 2014 (the Agreement) is MSS Security Pty Ltd permitted to roster employees for an overtime shift on any day in the roster cycle, including on a day which also attracts a penalty for ordinary hours, where that penalty is absorbed into the overtime rate the employee is paid for that shift?; and

2. On the basis of the duties required to be performed by Mr Carnes, is Mr Carnes entitled to be classified as a Security Officer Level 3 under the Agreement?

[7] The parties were given an opportunity to provide any views in relation to these questions, and did not propose alternative questions. Accordingly, Directions were issued containing these questions for arbitration and requiring material to be filed by the parties addressing those questions.

[8] After considering the views of the parties I determined to conduct a hearing given the complexity of the matters and the amount of material tendered. At the hearing, Mr Carnes appeared on his own behalf and MSS was represented by its Human Resources/Industrial Relations Manager Queensland, Ms Sara Lock. At the point the application was heard, Mr Carnes had ceased his employment with MSS. No jurisdictional objection on this basis was raised and I have proceeded to deal with the questions for arbitration as agreed between the parties.

LEGISLATION

[9] Section 51 of the Act prescribes the legal effect of enterprise agreements and provides as follows:

“(1) An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless enterprise agreement applies to the person.

(2) An enterprise agreement does not give a person an entitlement unless the enterprise agreement applies to the person.”

[10] Legislative provisions in relation to the jurisdiction of the Commission to deal with a dispute pursuant to dispute settlement procedures in enterprise agreements are found in s.595 and s.739 of the Act. Section 595 states:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following (a) by mediation or conciliation (b) by making a recommendation or expressing an opinion.

(2) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(3) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section”

[11] Section 739 provides that:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[12] The Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the disputes settlement procedure contained in the enterprise agreement. As a Full Bench of the Commission concisely observed in CFMEU v North Goonyella Coal Mines Pty Ltd 1 the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute settlement procedure (s.739(3)); may arbitrate only if the agreed dispute settlement procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).

[13] In my view it is fundamental to the exercise of the Commission’s powers to deal with a dispute that the nature of the dispute and the issues which the notifying party seeks that the Commission resolve are identified with clarity, particularly at the point that the Commission is proceeding to exercise the power to arbitrate the dispute. This is important for a number of reasons. Firstly, the Commission when it deals with a dispute, the Commission is exercising powers granted to it by the agreement of the parties as encapsulated in a dispute settlement term. It is axiomatic that such terms refer to a dispute or to matters in dispute and prescribe various steps for dealing with a dispute. A dispute settlement term does not empower the Commission to unilaterally decide to determine an issue that has not been raised by the parties or articulated in the dispute notification.

[14] It is often the case that when the Commission is conciliating a dispute or exercising powers under a dispute settlement term prior to arbitrating, that a related issue emerges which is not encapsulated in the initiating dispute notification and/or was not the subject of discussions in earlier steps of the dispute settlement procedure prior to the dispute being notified to the Commission. The dispute settlement procedure may provide for the parties to agree that the Commission deal with such a matter as part of the original dispute or one party may object to the Commission dealing with the matter on the basis that it asserts that the matter should revert to the earlier steps in the dispute settlement term. However, the Commission is not at liberty to determine a question that did not arise in the original dispute notification or was not encapsulated by the description of the matters in dispute, in the absence of the agreement of the parties or at least their acquiescence.

[15] Secondly, where a question for determination has been agreed by the parties and they have filed material in the Commission addressing that question, for the Commission to proceed to determine a different question without the agreement of the parties, would be unfair. This is relevant in the present case, because as will become apparent, Mr Carnes advanced his case in relation to the roster dispute on a different basis than was indicated in the dispute notification and his earlier material.

[16] The issues raised by Mr Carnes and the questions for arbitration require that the terms of the Agreement are construed. Principles relevant to construing enterprise agreements were most recently set out in a Decision of a Full Bench of the Commission in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd 2 as follows:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the Agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

AGREEMENT PROVISIONS RELEVANT TO THE DISPUTE

[17] The procedure under which the dispute is being dealt with is found in Clause 2.2 of the Agreement and is in the following terms:

“2.2 GRIEVANCE PROCEDURES

2.2.1 The matters to be dealt with in this procedure shall include all grievances or disputes or any matter likely to create a dispute between an employee and the employer and/or the Union and the employer in respect to any industrial matter and all other matters that the parties agree on and are specified herein. This includes a matter arising under this Agreement or the National Employment Standards. Such procedures shall apply to a single employee or to any number of employees.

2.2.2 An employee who is party to the dispute may be represented by their Union or another representative of their choice at any time throughout this procedure. When an employee chooses to be represented by their Union or another representative of their choice, they shall be allowed time during working hours and a suitable location within the workplace to confer with their Union or representative prior, during and subsequent to discussions with management. Where a grievance or dispute involves more than one employee, their Union or representative shall be afforded the opportunity to meet with them collectively prior, during and subsequent to discussions with management. Where representation has been requested, Union officials or representatives have a standing invitation by the employer to access the workplace for the purposes of representing members undertaking the grievance/dispute settling procedure.

2.2.3 In the event of an employee having a grievance or dispute, the employee shall in the first instance attempt to resolve the matter with the immediate supervisor, who shall respond to such request as soon as reasonably practicable under the circumstances. Where the dispute concerns alleged actions of the immediate supervisor, the employee/s shall escalate the matter to the next Manager in the hierarchy.

2.2.4 If the grievance or dispute is not resolved under 2.2.3, the employee, the Union or the employee's representative may refer the matter to the employer for discussion. This process shall not exceed seven (7) days.

2.2.5 If the grievance or dispute is still unresolved after discussions mentioned in clause 2.2.4, the matter shall be referred to the employer by the employee, the union or the employee's representative. This process shall not exceed twenty one (21) days.

2.2.6 If, after discussion between the parties, or their nominees mentioned in clause 2.2.5, the dispute remains unresolved after the parties have genuinely attempted to achieve a settlement, then notification of the existence of the dispute is to be given to Fair Work Australia.

2.2.7 Fair Work Australia may deal with the dispute in two stages:

(a) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) If Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:

arbitrate the dispute; and

make a determination that is binding on the parties.

2.2.8 Where a dispute is referred to Fair Work Australia for conciliation, and/or arbitration, Fair Work Australia shall have the power to do all such things as are necessary for the resolution or determination of the matter in dispute. This includes the exercising of procedural powers in relation to directions, hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

(h) Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue.

(i) The status quo existing before the emergence of the grievance or dispute is to continue whilst the above procedure is being followed.

2.2.9 All parties to the dispute shall give due consideration to matters raised or any suggestion or recommendation made by Fair Work Australia with a view to the prompt settlement of the dispute.

2.2.10 Discussions at any stage of the procedure shall not be unreasonably delayed by any party, subject to acceptance that some matters may be of such complexity or importance that it may take a reasonable period of time for the appropriate response to be made. If genuine discussions are unreasonably delayed or hindered, it shall be open to any party to give notification of the dispute in accordance with the provisions of the Act.”

[18] The dispute is a matter that can be dealt with under the Grievance Procedure and the Commission is empowered to arbitrate the dispute.

[19] Provisions of the Agreement relevant to the classification dispute are as follows:

“SCHEDULE A – CLASSIFICATIONS

A Security Officer Level 1:

(a) is responsible for the quality of their own work subject to general supervision;

(b) works under general supervision, which may not necessarily be at the site where the officer is posted, either Individually or in a team environment;

(c) exercises discretion within their Level of skills and training; and

(d) assists in the provision of on-the-job training.

Indicative of the tasks which an employee at this Level may perform are the following:

(a) watch, guard or protect persons and/or premises and/or property at sites/locations where the complex use of computer technology is not required;

(b) basic crowd control functions including at shopping centres, major events, sporting tournaments, nightclubs, sporting venues and other entertainment venues or public areas where events, concerts or similar activities are conducted;

(c) be stationed at an entrance/exit, where principal duties will include the control of movement of persons, vehicles, goods/property coming out of or going into premises or property, including vehicles carrying goods of any description, to ensure that the quantity and description of such goods is in accordance with the requirements of the relevant document/gate pass;

(d) respond to basic fire/security alarms at their designated post;

(e)in performing the duties referred to above the officer may be required to use electronic equipment such as hand-held scanners and simple closed circuit television systems utilising basic keyboard skills which do not require data input; and

(f) provide safety induction to employees, contractors or visitors to the site.

Security Officer Level 2

An employee at this Level performs work above and beyond the skills of a Security Officer Level 1 and to the Level of their skills, competence and training.

A Security Officer Level 2:

(a) works from complex Instructions and procedures under general supervision which may not necessarily be at the site where the officer is posted;

(b) assists in the provision of on-the-job training;

(c) exercises good interpersonal communications skills; co-ordinates work in a team environment or works individually under general supervision of a more senior security officer who may not necessarily be at the site where the officer is posted;

(d)Is responsible for assuring the quality of their own work; and

(e)is required to act as first response to security incidents/matters.

Indicative of the tasks which an employee at this Level may perform are the following:

(a) duties of securing, watching, guarding, protecting as directed, including responses to alarm signals and attendances at and minor non-technical servicing of ATMs. Such work must not be undertaken alone and must not include cash replenishment at ATMs;

(b) crowd control functions including at shopping centres, major events, sporting tournaments, nightclubs, sporting venues and other entertainment venues or public areas where events, concerts or similar activities are conducted;

(c) patrol in a vehicle two or more separate establishments or sites, including where more than one site held by the same business is patrolled;

(d) monitor and respond to electronic intrusion detection or access control equipment terminating at a visual display unit and/or computerised printout (except for simple closed circuit television systems). Such work must not include complex data input into a computer;

(e) monitor and act upon walk4hrough electromagnetic detectors; and/or monitor, interpret and act upon screen images using x-ray imaging equipment;

(f) operate a public weigh-bridge;

(g) record and/or report security incidents or matters on a computer based system; and

(h) control a dog used to assist the security officer to carry out the duties of watching, guarding or protecting persons, premises or property.

A,2.4 A Security Officer Level 2 may be required to perform the duties of a Security Officer Level I provided that such duties are not designed to promote deskilling.

Security Officer Level 3

A Security Officer Level 3 works above and beyond the skills of an employee at Level s 1 and 2, and to the Level of their skills, competence and training.

A Security Officer Level 3:

(a) works from complex instructions and procedures under limited supervision;

(b) exercises good interpersonal and communications skills;

(c) exercises computer skills at a Level higher than Level 2;

(d) assists in the provision of on-the-job training;

(e) exercises discretion within the scope of this classification Level ; and

(f) performs work independently under limited supervision either individually or in a team environment.

Indicative of the tasks which an employee at this Level may be required to perform are the following:

(a)control of movement of persons, vehicles, stock and material at gatehouses and similar locations utilising monitoring and operating computer based systems requiring data input, including manipulation of spreadsheet based computer programs or other advanced monitoring system;

(b)monitor and operate, under supervision, building operation systems terminating at a visual display unit or computerised printout, including the monitoring of complex fire alarms, water towers/chillers, temperatures and other similar building operational system functions;

(c) stock and material control at computerised gatehouses and similar locations requiring data input and manipulation of computer programs e.g. Microsoft Excel and other similar computer programs; and

(d) provide safety induction to employees, contractors or visitors to the site.

A Security Officer Level 3 may be required to perform the duties of Security Officers at Level s 1 and 2 provided that such duties are not designed to promote deskilling.

Security Officer Level 4

A Security Officer Level 4 works above and beyond an employee at Level s 1, 2 and 3, and to the Level of their skills, competence and training.

A Security Officer Level 4:

(a) works individually or in a team environment under limited supervision which may not necessarily be at the site where the officer is posted;

(b) assists in the provision of on-the-job training;

(c) exercises discretion within the scope of this classification Level ;

(d) exercises computer skills at a higher Level than Level 3; and

(e) exercises high Level interpersonal and communications skills.

Indicative of the tasks which an employee at this Level may be required to perform are the following:

(a) monitoring, recording, inputting information or reacting to signals and Instruments related to electronic surveillance of any kind within a central station or at a particular location;

(b) keyboard operation to alter the parameters within an integrated intelligent building management and/or security system, including operating computer programs which have the ability to lock/unlock doors, program access cards, audit door access by individual as well as recording time and date of access; and

(c) the coordinating, monitoring or recording of the activities of security officers utilising a verbal or computer based communications system within a central station.

A Security Officer Level 4 may be required to perform the duties of security officers at Level s 1, 2 and 3 provided that such duties are not designed to promote deskilling.”

[20] Provisions of the Agreement relevant to the roster dispute are as follows:

“1.8.8 Spans:

(a) Day span between 0600 hrs and 1800 hrs Monday to Friday (excluding hours on a Day that is a public holiday);

(b) Night span between 0000 hours to 0600 hrs and 1800 hrs to 2400 hrs through the period from 0000 hrs Monday to 2400 hrs Friday (excluding hours on a day that is a public holiday);

(c) Saturday span means 0000 hrs to 2400 hrs on a Saturday;

(d) Sunday span means 0000 hrs to 2400 hrs on a Sunday;

(e) Public holiday span means 0000 hrs to 2400 hrs on a public holiday

1.8.9 "Shift Worker" means:

(a) an employee who works according to a roster where the employee regularly works over a period of seven days per week; and/or

(b) an employee engaged on permanent night work (non-rotating) over a period of seven days per week.

2.1.2 Full-Time employees

A full-time employee is an employee who is employed in a classification in schedule A and engaged to work 38 ordinary hours per week, or, where the employee is employed on a roster, an average of 38 hours per week over the roster cycle.

3.4.3 Saturday, Sunday and Public Holiday Rates

3.4.3 Saturday, Sunday and Public Holiday Rates - The rates applicable to permanent rates for work done in ordinary time are:

Weekend Rates	Loading Payable
0000 hrs Saturday – 2400 hrs Saturday	50% (time and a half)
0000 hrs Sunday – 2400 hrs Sunday	100% (double time)
Public Holiday	150% (double time and a half)

4.1 HOURS OF WORK

4.1.1 The ordinary hours of duty shall be worked in accordance with a roster set by the Employer in consultation with employees and cannot exceed an average of 38 ordinary hours per week, averaged over the agreed duration of the roster. Hours In excess of 38 but not more than 40 per week may accrue towards a rostered day off rather than be paid as overtime. In implementing the 38-hour week, Employees (other than casual and part-time employees) will be given a rostered day off when the employees have accumulated one or, by agreement with the employer, banked hours up to 6 months. If banked hours are not taken within 12 months those hours must be paid for at the appropriate ordinary rate of pay, by the 30th of June each year. Having regard to the needs of the business, rostered days off will be taken at mutually agreed times where possible.

4.1.2 Subject to clause 4.1.1 the ordinary hours of work each week for a full time employee are thirty eight (38), which may be averaged over a period of up to sixteen (16) weeks.

4.1.3 Subject to clause 4.1.1 the ordinary hours of work each week for a part time employee are less than thirty eight (38), which may be averaged over a period of up to sixteen (16) weeks.

4.1.4 The ordinary working hours of employees shall be worked continuously other than meal breaks and broken shifts under subclause 4.4 and 3.4.5.

…

4.1.6 SHIFT DURATION

(a) Ordinary time shifts must be continuous and limited in duration to;

i. For casual employees - a minimum of four (4) and a maximum of 10 ordinary hours;

ii. For full time employees ... a minimum of 7.6 and a maximum of 12 ordinary hours and;

iii. For part time employees - a minimum of 115th of the employee's weekly hours or four hours (whichever is the greater) and a maximum or 12 ordinary hours.

(b) 12 hour shifts will be subject to;

i. Proper health monitoring procedures being introduced

ii. Suitable roster arrangements being made

iii. Proper supervision being provided

iv. Adequate breaks being provided; and

v. An adequate trial or review process being implemented where 12 hour shifts are being introduced for the first time.

4.2 ROSTERS

4.2.1 The employer must notify employees who work their ordinary hours in accordance with a roster of the commencing and ceasing times of their rostered hours of work either by posting the roster on a notice board which Is conveniently located at or near the workplace or through electronic means.

Such times, once notified may not be changed without the payment of overtime, or by seven days' notice given in accordance with this clause. However by agreement between the employer and the employee less than seven days' notice may be substituted.

4.2.2 Employees may swap rostered shifts by agreement with no penalty to the Employer, subject to the approval of the Employer. In these circumstances, no overtime or other penalties will be payable by the Company to the employee(s) if such overtime or penalties would not have been payable if the shift swaps had not occurred in the first instance.

4.2.3 Hours of Duty - The hours of duty of part-time employees shall be worked in accordance with a roster under the provisions of this clause of this Agreement.

4.3 OVERTIME

4.3.1 Except as hereinafter provided, all time worked in excess of the ordinary daily hours of work prescribed by this Agreement, or outside of an employee's usual commencing and ceasing times, shall be deemed to be overtime and shall be paid at the rate of time and a-half for the first two hours and double time thereafter. Provided that overtime shall not be payable until an employee works hours in excess of their rostered hours. Provided that where more than one shift per day is worked, overtime shall be paid for at the rate of not less than double time.

Overtime shall be paid in blocks of 15 minutes.

Provided that where there is a requirement that a Security Officer coming onto a shift at a post or station has to be briefed by an employee on the previous shift, such briefing will be carried out at no extra cost to the Employer if the briefing time does not exceed 15 minutes. If the briefing time exceeds 15 minutes, overtime shall be paid.

…

4.3.4 All overtime worked by an employee on Sunday shall be paid for at the rate of double time with a minimum payment of four hours work.

Provided this minimum shall not apply in respect to overtime worked at the conclusion of an ordinary shift, nor in respect of overtime which is continuous with overtime commenced on the previous day.

5.1 Annual Leave

5.1.1 Every employee other than a casual employee covered by this Agreement shall at the end of each year of employment be entitled to annual holiday on full pay as follows:

(a) If employed throughout such year of employment on permanent night work (non rotating) over a period of 7 days per week, or if employed as a shift worker as defined in clause 1.8.9 of this Agreement; not less than 5 weeks (190 hours).

(c) If employed other than on work described above, not less than 4 weeks (152 hours).

(d) The employer must pay the employee in respect of the period of such leave the greater of;

i. The amount the employee would have earned during the period of leave for working their normal hours, exclusive of overtime, had they not been on leave; or

ii. The employee's ordinary time rate specified in clauses 3.1 or 3.2, together with, where applicable the leading hand allowance, relieving officer's allowance and first aid allowance prescribed in clause 3.4.4 respectively, plus a loading of 17 .5% where the employee is entitled to receive such loading payment.

(c) The Company and the individual Employee may agree to cash out a proportion of the employee's accrued annual leave conditional upon the following:

(i) The employee giving the employer a written request to cash-out and forgo the amount of leave and the employer agreeing in writing to such request.

(ii) the cashing out must not result in the Employee's remaining entitlement to accrued paid annual leave being less than 4 weeks.

(iii) The employee must be paid at least the full amount that would have been payable to the employee taking the leave that the employee has forgone.

Such annual holiday shall be exclusive of any statutory holiday which may occur during the period of that annual holiday and shall be paid for by the Employer in advance –

(i) In the case of any and every employee in receipt immediately prior to that holiday of ordinary pay at a rate in excess of prescribed ordinary rate of wages, at that excess rate; and

(ii) In every other case, at the ordinary rate payable to the employee concerned immediately prior to that holiday under this Agreement.

5.1.2 Annual Leave may be taken where agreed in periods of not less than two weeks. Agreement shall not be unreasonably withheld subject to the needs of the business. Application for annual leave must be received four (4) weeks in advance of the proposed leave and the agreement or rejection of leave will occur within 21 days and replied in writing. Approval must be received by the employee prior to making arrangements for such leave.

5.1.3 Annual leave is to be taken within two years of the entitlement accruing. For the purpose of ensuring accrued annual leave is taken within that period, or because of a temporary or seasonal slowdown in the employer's business, the employer may require an employee to take a period of annual leave from a particular date provided the employee is given at least 28 days notice.

5.1.4 Where an employee is entitled to a payment on termination of employment the employer must also pay to the employee a loading of 17.5% unless the employee has been dismissed for gross misconduct.”

EVIDENCE AND SUBMISSIONS

Classification dispute

[21] In relation to the classification dispute, Mr Carnes gave evidence that the computer programs consistently used by guards at the site where he was working when the dispute arose are as follows:

•  Forcefield Client – Access Control, Alarm monitoring, zone / gate / door and input control ( i.e. reading on-screen building maps to isolate doors at remote locations in order to achieve an armed status etc ), activity registry ( Control program for all sites security management system ).

•  iVMS-4200 Client – Primary CCTV program, boom gate monitoring, Traffic control monitoring, on-site visitor monitoring. ( CCTV program for all sites except [address]) This program is utilised by guards at request of management also for collating evidence (video and photographic) from the CCTV archive, then transferred via network to a separate gatehouse computer for forwarding to managers via email and / or Lotus notes Facilities database.

•  TrueVision Navigator 5.0 – CCTV program for [site] providing Pan / Tilt / Zoom functions for manipulation of cameras across site for after hours observation of non-alarmed yard areas and after hours visitor identification

•  MxCC – CCTV program for tool-store monitoring and record of events when we’re required to sign tool-store keys out after hours, with a report to be emailed to select managers after each instance.

•  Lotus Notes – Facilities Database and staff member registry used for submitting of maintenance requests, Incident reports (Security and non-security based).

•  Microsoft Excel – Creation, maintenance and completion of Rental spreadsheets, two separate water meter registries which record data of 8 separate water meters and formulate daily / monthly usages, contractor cleaners time sheets, [client] staff overtime (after hours access) lists. These are renewed at varying intervals, however a simple copy and paste of a tab does not complete the renewal process required.

•  Microsoft Outlook – Emailing program utilised for all written communications and report forwarding. Recipient program for Equipment Movement Reports from all department managers for implementation / authorisation of machinery and parts through the gatehouse.”

[22] Further, Mr Carnes submitted that the various spreadsheets used by the guards as part of their duties involve formulas and calculations which the guards are required to construct and maintain and that the following are extracts from current formulas used in completing these spreadsheets:

“i) =B5-'Apr 18'!B34

ii) =IF(B35>=1,SUM(B35-B5),"")

iii) =IF(F35>=1,SUM(F37/31),"")

iv) =SUM(D8-C8)+(G8-F8)+(J8-I8)+(M8-L8)+(P8-O8)

v) =SUM(Q17+Q31+Q24)”

[23] Mr Carnes gave evidence that in the normal course of their duties, guards are required to maintain weekly, monthly and ad hoc spreadsheet documents, which involves performing corrections to formulas, and compiling spreadsheets into reports to be forwarded to various managers as required. He stated that all of the above tasks have been mandatory as the result of a request of the client and within the knowledge of MSS, since their implementation.

[24] In relation to the tasks undertaken by guards at the site, Mr Carnes relied on evidence provided by Mr Anthony Heathcote and Mr Martin Price, MSS guards also employed at the site. Mr Heathcote provided a witness statement for the Applicant in these proceedings. 3 In summary Mr Heathcote said that he has worked at the site for almost four years. The site is a large industrial mining machinery supplier and service for large mining machines to small businesses. Mr Heathcote stated that his duties on the site include the following:

•  Site patrols;

•  Guarding of property;

•  Patrols and alarm responding;

•  Water meter readings;

•  Key management and register;

•  Cleaners times recording;

•  Vehicle and machine logging;

•  Corporate and contractors and [client] service vehicle logging;

•  Liaising with various managers;

•  Traffic flow control;

•  Computer based duties using various programs including four different CCTV programs for monitoring of sites;

•  Video footage reviewing and retrieval upon request of the client;

•  Use of CCTV program (MxCC) when restricted tool store key has been signed out after hours;

•  Remote access control for doors and gates disarming and arming of all [client] Brisbane sites using force field client;

•  Printing and scanning of documents;

•  Sending and receiving emails;

•  Recording water meter readings in to spread sheet;

•  Recording cleaners times in to spread sheet; and

•  Completing maintenance request using the facilities management system on Lotus notes.

[25] In oral evidence, Mr Carnes said that in relation to the water metre spreadsheet, the guard is required to create a new tab or template every month and insert readings into it. The completed document then gets emailed to a number of people. Mr Carnes said that the formulae in the spreadsheet are cumulative so that they have to be changed each month. In relation to changing the formula, Mr Carnes said that the guard is required to carry over totals from the previous month, and change a number in the formula so that it divides the month by the number of days in that month. In response to the proposition that it was not a complex calculation, Mr Carnes agreed that the spreadsheet does all the totalling.

[26] In relation to the spreadsheet for cleaners, Mr Carnes said that guards are required to enter the names of the cleaners and the time they spend on site, and which keys they take. This is entered into a spreadsheet a template for which is copied and pasted from the previous week. The facilities reporting database is a spread sheet where guards enter information about issues that require maintenance or security reporting issues that would be of interest from a client perspective. There is also a maintenance spreadsheet into which data is entered and a rental movement spreadsheet where details of rental machines entering or exiting the site are recorded and are forwarded to the rental department by email so that billing processes can be formalised. Mr Carnes also tendered a document which he stated was prepared by him as a training aide for other guards. Mr Carnes said that there are multiple systems in use which incorporate CCTV observation and manipulation on some sites. The system also provides access control to all of the particular client’s sites which incorporates after-hours access involving arming and disarming buildings, operating boom gates across most of the sites.

[27] Mr Carnes said that he drafted the document because he was requested to do so by the Facilities Co-ordinator. It does not include all of the work undertaken by guards but is an introduction for new employees. Some additional tasks that are not included in the document are reviews of CCTV footage requested by the client which guards could be requested to capture and add to emails and to compile a report about certain incidents. Other tasks not included are the programming of security camera system layouts. Further, none of the duties performed on the site are supervised and night guards rarely see a manager while for day guards managers attend simply to confer with the client rather than to supervise the work of guards.

[28] Under cross-examination, Mr Carnes said that his entire period of employment with MSS – from 20 August 2008 until 21 February 2019 – had been spent at the same client’s premises. Mr Carnes agreed that he had never worked with MSS in a Level 3 post. In response to a question about how he had come to the conclusion that the site should be classified as a Level 3 site, Mr Carnes said he had worked in the security industry since 1993 for other companies in different classification levels. In response to a question about what tasks he asserted were done by guards at the particular location subject of the present dispute should result in a Level 3 classification, Mr Carnes said that all of the computer operations undertaken by guards on what he termed the “left hand computer” and some of the operations on the “right hand computer” justified classification at Level 3. According to Mr Carnes, the left hand computer in the guard house is the security management system that incorporates all of the programs, CCTV and access control and alarm management program listed in Mr Carnes’ material – the security management system. The right hand computer is the general operations computer and is used as the facilities’ reporting database for matters including, emailing, water metre spreadsheets and cleaning.

[29] Mr Carnes agreed that during the day shift, the left hand computers are all boom gate and door control for external sites and that guards are required to react to the monitors as required. Mr Carnes also agreed that on the left hand side of the guard house guards are required to meet vehicles, get their details and direct them to an appropriate part of the premises. Further, Mr Carnes agreed that a significant amount of the activities of guards on day shift is logging the vehicles that come through the gate house and that this is a manual process done by seeking information from the drivers of vehicles and writing it on a sheet of paper. The systems in Mr Carnes’ training document are not actively monitored Monday to Friday on day shift. Mr Carnes also maintained that he was asked to prepare the document by his supervisor Mr Ridder and that it is used to train guards.

[30] In response to the proposition that guards could not change the configuration of the system, Mr Carnes agreed that while guards could manipulate cameras they could not install new cameras. In response to questions about the basis upon which he asserted that work being performed should be at Level 3 in the Agreement, Mr Carnes said that the work undertaken by the guards subject of the dispute was unsupervised and the onus is on the guards to know those systems and operate them effectively. Mr Carnes also said that there was a site supervisor who is no longer located at the site but agreed that Mr Badger is the site supervisor. Mr Carnes agreed that he met with Mr Badger at the workplace and was provided with a spreadsheet listing tasks undertaken by guards. Mr Carnes said that he had input into the list of tasks and added “ad hoc duties”. Mr Carnes agreed that at the end of this process all duties were listed on Mr Badger’s spreadsheet “in a generalised sense”.

[31] Mr Carnes also agreed that his claim to be classified at Level 3 of the Agreement is based on the fact that the monitoring system is interactive and guards have to interact with it. Mr Carnes conceded that he has never actually worked at a Level three site for MSS under the Agreement. In response to a question from me about what computer use establishes the higher classification Level , Mr Carnes said that on request of management at the site guards could be required to go through video footage and enter parameters for times and dates and that the computer would collate and spit out various recordings. Mr Carnes also said that this task requires selecting a date and time and also the camera that would be beneficial for the review of a particular area. In response to a question about whether this was complex, Mr Carnes said it is not simplistic and is more complex than at other sites where he has worked.

[32] In response to a question about why the tasks he was describing were not within the definition of monitoring and responding to an electronic intrusion detection or access control equipment terminating at a visual display unit, Mr Carnes said it is more interactive. Failure to respond quickly could also lead to delays for trucks sitting at boom gates waiting for them to be opened from remote locations.

[33] Mr Heathcote gave evidence that he, Mr Carnes, and four other full time guards on the site are trained to perform the above duties. As to rostering of guards, Mr Heathcote’s evidence was that there are two guards per night shift, one from 1730-0530 and one from 1800-0600, and there is one day guard per day shift that works 0600-1800.

[34] For the night shift workers, Mr Heathcote’s evidence was that “Guard 1” duties are as follows:

•  1730-1800 Site lock up which includes vehicle check on company car before use, lowering flags the closing of multiple gates, obtaining two water meter readings.

•  1800-2000 Log water readings into excel spread sheet, log remaining cleaners times in excel spread sheet, Log ins and outs of any rental moments from that day in to word document (Rental movements.doc) and then attached to email to send to rental team, Sort and collect daily Corporate and contractors sheets, vehicle log sheets and service vehicle log sheets and file away, monitor CCTV system, open gates and doors when required using force field client.

•  2000-2200 Perform external patrols using company vehicle of [address] (IT building) check for any staff on site and arm building and close gates if no staff are on site, check [address] (Truck centre and Technology Solutions centre) check and secure all external doors, external site patrol, obtain water meter reading, check [address] (Brisbane branch) check and secure all external doors obtain water reading, return back to [address] and perform foot patrol of site close and secure doors and offices after cleaners are done, check server room temperatures in building 2 and building 1A , fence patrol of site.

•  2200-0000 Log water readings in excel spread sheet, log time outs of cleaners into excel spread sheet, logging of all staff entering and exiting site in to security log book, monitor CCTV systems, open gates and doors when required using force field client, checking of external sites are armed on force field and arm if required. Logging of [client] preventative maintenance vehicles into email when they arrive or exit.

•  0000-0200 Perform external patrols using company vehicle of [addresses] (Used equipment and rental centre) guard 2 isolates and de isolates gate alarm using force field, fence patrol of site checking and securing of all external doors, Return to site perform foot patrol, obtain 5 water meter readings check server room temperature in building 2 and building 1A, fence patrol.

•  0200-0400 Log water readings in excel spread sheet, logging of all staff entering and exiting site in to security log book, monitor CCTV systems, open gates and doors when required using force field client

•  0400-0530 Perform foot patrol of site, perform site unlock procedures raise flags, unlocking of gates, obtaining water meter readings using company vehicle to unlock [addresses] gates, returning to gate house and logging in water meter reading in excel spread sheet, draft up emails for Cleaners times and water meter readings and attach cleaners times excel spread sheet and water meter readings excel spread sheet.”

[35] Mr Heathcote also gave evidence that “Guard 2” duties involve:

•  1800-2000 Reconfigure CCTV camera layout for night shift, foot patrol of site closing two pedestrian gates, unlocking of executive offices for cleaners, closing and securing of internal office doors and roller doors and walkway gates, turning off any unused lights, checking of server room temperatures in building 2 and building 1A.

•  2000-2200 Logging of all staff entering and exiting site in to security log book, monitor CCTV systems, open gates and doors when required using force field client, Logging of [client] preventative maintenance vehicles into email when they arrive or exit.

•  2200-0000 Perform external patrols using company vehicle of [address] (..IT Centre) checking and securing all external doors , turning off any unused lights, general grounds patrol, checking [address] (Brisbane branch) general grounds patrol and external door checking, [address] (truck centre and Technology Solutions centre) general grounds patrol and external door checking, return to [address] to perform foot patrol securing roller doors when able and turning off remaining lights once [client] night shift have finished (2330), checking of server room temperatures in building 2 and building 1A.

•  0000-0200 Isolating and de isolating of [address] (Used equipment and rental centre) for guard one using force field client, logging of all staff entering and exiting site in to security log book, monitor CCTV systems, open gates and doors when required using force field client, Logging of [client] preventative maintenance vehicles into email when they arrive or exit.

•  0200-0400 Foot patrol of site checking of server room temperatures in building 2 and building 1A, Checking doors and turning off any unused lights, perform external patrols using company vehicle of [address] (IT building), [address] (Brisbane branch) general grounds patrol and external door checking obtain water meter reading, [address] (Truck centre and Technology Solutions centre) general grounds patrol and external door checking obtain water meter reading;

•  0400-0600 Log water readings in excel spread sheet, logging of all vehicle and machine logging, Corporate and contractors and [client] service vehicle logging, monitor CCTV systems, open gates and doors when required using force field client.”

[36] In relation to day shift guards, Mr Heathcote’s evidence was that their duties include:

Gate house duties reconfigure CCTV camera layout for day shift use, send-off Cleaners times and water meter reading emails, logging of all vehicle and machine movements, corporate and contractors and [client] service vehicle logging, equipment control of machines and accessories entering and leaving site, having appropriate paper work EMR (Equipment movement record) for when a machine or accessory is being loaded, calling various departments to obtain EMR if no paper work is present. Writing up of despatch dockets to attached to EMR for when a machine or accessory is leaving site, and recording all details in to vehicle log sheet and security log book when a machine or accessory leaves site, Traffic flow control, Boom gate and door access using force field client for when staff have lost or broken access cards, signing out keys and logging in to key register, logging in cleaners times into excel spread sheet. Printing and scanning of documents when required. The use of email client and CCTV and force field client through-out the shift.”

[37] Mr Heathcote gave evidence that a number of the tasks performed by these guards at the site are “complex and require a considerable amount of training and practise”. He submitted that, having regard to the above duties, the Commission should be satisfied that Mr Carnes’ role involves tasks which would appropriately be classified as “Security Officer Level 3” under the Agreement.

[38] Under cross-examination Mr Heathcote said that the system at the relevant site can be quite daunting at the outset because it involves multiple programs on multiple computers, but becomes easy to operate when you have the “hang of it”. In relation to water metres, Mr Heathcote said that he undertakes this task by reading water metres and taking photographs of them on his phone. Mr Heathcote then inputs the readings into the system. There may be anomalies or errors in the water metre spreadsheet which Mr Heathcote deals with by going back to previous months to correct the formula. To create a new month involves creating a new tab and using the previous tab to copy and paste into the new tab and then going through the formula to adjust for the new dates. In response to a question from me, Mr Heathcote said that if he had an issue on site he would raise it with an MSS supervisor who was located off the site.

[39] Mr Heathcote also said that the day Ms Lock visited the site there were multiple delivery trucks going in and out and a range of construction. There were also trucks leaving after picking up machinery and entering to drop off machinery. At the same time Mr Heathcote he was doing log work and recording vehicles in log books which are handwritten. Mr Heathcote was also occupied making phone calls and said that it was a busy day. Mr Carnes agreed that it is not common on day shifts for guards to interact with the systems and that this only occurred in an alarm was triggered. Data entry described by Mr Heathcote relates to water metre spread sheets and cleaners’ times. Cleaners’ times are recorded once per night Monday to Friday. There may be up to two people on a team. Once a month the information is taken from this log and put into a spreadsheet. Mr Heathcote said that other than the water metres and cleaners’ spreadsheets there are no other complex matters on which his belief that the site should be classified as a Level 3 site.

[40] In relation to alarms, Mr Heathcote said that if they activated, guards are required to advise manual guards who then respond. Mr Heathcote said that he had never worked at a Level 3 site under the Agreement. Mr Price also provided a witness statement in support of Mr Carnes’ application. 4 Mr Price has been employed at the site for 17 years and is the longest serving guard at this site. He stated that his duties at the site include, but are not limited to, the following:

•  General guarding of property;

•  Securing of buildings;

•  Stock control;

•  Safety tasks;

•  Mobile patrols and alarm response to all Brisbane [client] sites;

•  Security guard training;

•  Computer based and gatehouse based access control;

•  CCTV and building status monitoring;

•  Building and property maintenance reporting;

•  Key management and registry;

•  Liaising with various managers;

•  Water meter readings and spreadsheet recording;

•  Alarm monitoring and system operation;

•  Physical and security system based traffic management;

•  Safety procedures enforcement;

•  Cleaners and contractors time in / out recording and spreadsheet emailing; and

•  Incident reporting.

[41] Further to the above, Mr Price gave evidence that specific site duties involve:

•  Reviewing previously captured CCTV footage at clients’ requests, which is done by entering various details into the search panels within the varied CCTV programs to locate, review, capture and attach to reports which are then uploaded to Lotus Notes Facilities database or emailed to respective manager/s;

•  All spreadsheet master documents being managed from the guardhouse computer, which all guards are responsible for maintaining and repairing/creating when required by client. These spreadsheet master documents include:

i) cleaners times spreadsheet (which is created on a weekly basis and emailed nightly to facilities managers). This spreadsheet records all cleaners times on and off site and calculates the hours for each cleaner and a total of the hours of service that is used to confirm billing details for [client].

ii) two separate water meter spreadsheets (which is created monthly but emailed nightly to provide [client] with a viable water management plan). Each new spreadsheet must provide the calculations of daily usage for each meter, monthly total usage and at the end of the month a daily average, with the values carried across to each new month.

iii) after hours staff spreadsheet (which is collated by night shift guards from a collection of emails received by various managers) to ensure only authorised staff are attending site after hours.

•  Finding and fixing (if possible) any faults with building security systems such as faulty door/gate/PIR inputs. If a fix is not possible, the guards isolate the faulty input/s and remotely arm the premises from the guardhouse computer programs. Reporting ‘door open too long’ alarms for the [client] Laboratory and tool store areas are emailed to relevant managers with alarm details; and

•  Observing server room temperatures at 2 different locations every two hours during night shift to prevent over-heating, with reports, or in severe situations, personal contact, being made to I.T. managers when faults occur.

[42] Mr Price confirmed that all guards, excepting casual relief guards, at the site are trained in the same tasks and duties. He stated that the guards operate on a rotating roster, and that since August 2017, there has not been a site supervisor at the site. Mr Price gave evidence that the various tasks undertaken by night guards at the site are outlined in the following documents:

•  Guard 1 Night PATROL Duties – current as of Sept 2017, complied by Christian Carnes;

•  Guard 2 Night ‘PATROL’ Duties – up to date as of August 2017; and

•  Start-up and Operational Instructions for [client] S.M.S. ([client] Security Management System) – completed by Christian Carnes, completed and accurate as of 07 May 2017.

[43] The day shift guards also have a hand-written document they refer to, which was provided by Mr Julian Ritter, former site supervisor. Mr Price gave evidence that all trainees at the site are referred to these documents, as they provide the most detailed information required to be studied and learned. Mr Price also said that trainees at the site perform the tasks outlined in these documents, accompanied by a full-time guard who assists the trainee in learning the geography and locations of the jobs required to be performed.

[44] Mr Price’s evidence was that there are no formal training or instruction documents provided by the client or MSS “for the operation of the Forcefield Client program or CCTV programs, which are used to manage the access control, alarm status and monitoring, boom gate and door operation for all sites, CCTV manipulation or event log recording and observation for all sites”. Accordingly, the guards refer to the documents which for the most part are created by Mr Carnes.

[45] Additionally, Mr Price gave evidence that no supervision or guidance is provided by MSS or [client] supervisors. He stated that most communications between guards, or with the client, are carried out through emails and a communications diary kept in the guardhouse. New tasks or job requirements are entered into this diary for guards to check at the commencement of their shifts. Mr Price stated that while minor tasks alter occasionally, it is up to the guards on duty to manage the change in duties “at their discretion”, and further some guards may perform required tasks “at slightly varying times due to incidents or occasions where they have been diverted to address specific issues”.

[46] Mr Price stated that he supports Mr Carnes’ position that the duties involved at the site include Level 3 tasks as defined under the Agreement. Mr Price also stated that such duties have been “active and required” for a period of at least four to five years, with only minor occasional changes which would not affect the relevant classification issue. In oral evidence Mr Price said that using the computers in the guard house was something that you could either do straight away or which took a few days to get used to. Under cross-examination, Mr Price said that the site can be pretty hectic with vehicles coming and going all the time, necessitating paperwork. Trucks can be backed up which the client does not like, because the driveway is small. Vehicles entering and exiting have to be written up and this is a very manual process.

[47] In response to a question about what the Level 3 claim was based on, Mr Price said that guards do a lot of monitoring of other sites involving staff coming and going and that this is all done by computer. Mr Price agreed that guards are not actually interacting with the computer and that a lot of staff who are entering and exiting the sites being monitored have their own swipe cards. Contractors are told to make sure that the give guards a heads up as to when they are arriving and leaving. Guards interact with the system if they are required to generate a report. Mr Price said that guards use a car to go to other sites to read water metres and to check that they are locked after cleaners have left. Guards used the computer to log cleaners on and off when they arrive at or leave particular locations and this information is entered into a spreadsheet. Mr Price said that he has never worked at a Level 3 site before. Mr Price also said that watching monitoring screens all night takes a lot out of guards and that this justifies Level 3.

[48] Mr Carnes said in his submissions that he sought a client site consultation to demonstrate the systems and tasks undertaken as part of his role. Instead, an interview was conducted at the MSS Head Office on 14 September 2018 by Mr Michael Badger, Business Manager, and Ms Sara Lock, HR Manager. Mr Carnes submitted that at the interview of 14 September 2018, he was shown a spreadsheet containing a list of duties and was asked to provide his opinion of what classification those duties came under having regard to “Schedule A – Classifications” of the Agreement. However, he submitted that a number of the comments he made or recorded at the interview were misconstrued “in order to over-simplify the data provided by [him]”. In his submission, Mr Carnes determined there were 14 Level 3 tasks listed on this spreadsheet, and one task he believed to be at a Level 4 classification.

[49] As to the programs outlined at [21], Mr Carnes submitted that only two of the programs qualify as “simplistic” in operation. He submitted that extensive training is provided to all new guards at the site, to ensure they are proficient enough to operate the programs and carry out their duties in an independent capacity. Mr Carnes also submitted that no supervision is provided for these tasks and that the onus is on each guard to provide the Level of service to meet the clients’ requirements. He submitted that having regard to these matters, the Level 3 classification must be applicable to his role. In this regard Mr Carnes referred to the Level 3 description which states a Security Officer at that Level “works from complex instructions and procedures under limited supervision”. Mr Carnes submitted that lower classifications provide for “general supervision”.

[50] Mr Carnes further submitted his site duties extended beyond Mr Badger’s statement, that access control/alarm and CCTV monitoring would “consume only 20 minutes of a 12 hour night shift”. Mr Carnes also submitted that while MSS stated some of the tasks were not required to be performed by the guards as there had been no direction by MSS to perform them, until the demotion of the former site supervisor: “All new tasks were qualified as requisite by our site supervisor under direction of the [client] Facilities Manager/contract coordinator”. Mr Carnes submitted that after the demotion of the site supervisor on 21 August 2017, none of the current duties undertaken by guards at the site have been ratified “which means the chain of command has been followed by all guards in reporting new duties requested by the client”.

[51] Mr Carnes submitted that having regard to the above, a significant portion of the duties he performs at the site are more complex and “require a greater level of personal conduct and knowledge than the items laid out in the Classification Level 3 of MSS Security Enterprise Agreement 2011-2014”.

[52] Mr Badger’s evidence was that he attended the site on 10 September 2018 where he observed and experienced a guard completing day time tasks. From these observations, Mr Badger completed a spreadsheet that was later used in discussions with Mr Carnes about the dispute. The guard on duty during Mr Badger’s visit was completing general access control duties and was using basic logging process. The monitoring equipment observed by Mr Badger is deemed “passive” and the systems are auto monitored in that the computer actually monitors the alarms within the system and in the event of an alarm, notification is provided via on screen text and an audible alarm. The guard simply acknowledges the alarm by clicking on the screen using a mouse and then escalates if required. The level of escalation depends on the incident and can range from acknowledging the alarm on the screen or dispatching a guard. Mr Badger was advised that these systems are used for about 20 minutes each shift. Mr Badger did not observe any spreadsheets being completed.

[53] Mr Badger said that he chose to observe the tasks during the day shift as Mr Carnes did not indicate that there was any difference in day and night time tasks and had not specified a difference in duties. In accordance with site operating procedures, the processes are the same but at night there are two officers on duty and one is required to complete patrols of remote properties. In relation to the training document tendered by Mr Carnes, Mr Badger said that it is not a formal document and was not authorised by management of MSS. The document has not been through MSS quality assurance processes and Mr Carnes has no formal training qualifications. Mr Badger tendered the spreadsheet containing the list of tasks he discussed with Mr Carnes including:

•  Access control

•  Signing in contractors

•  Issuing visitors passes

•  Logging and inspection of vehicles entering and exiting facility

•  Logging machinery entering and exiting the facility

•  Invoice despatch documentation

•  Issue and maintain register of keys as required

•  Answer phones and direct calls as required

•  Physical lock and unlock of gates and buildings

•  Read water metre and record details

•  Raise and lower flags

•  Patrols of buildings and grounds – vehicular and on foot

•  Manage deliveries

•  Monitoring of alarms

•  Monitoring of CCTV

•  Monitoring of chargers, air conditioning

•  Handling lost or stolen property

•  Maintenance/Lighting audit

•  Assist with training

[54] Mr Badger’s spreadsheet setting out tasks also set out the steps involved in undertaking those tasks and additional notes. In relation to spreadsheets, Mr Badger’s notes indicate that the spreadsheet is provided by the client and that guards are required to maintain spreadsheets. In relation to monitoring of alarms, Mr Badger’s notes indicate that guards are required to monitor alarms and to use CCTV to verify visitors at remote locations around the site and to investigate incidents if required. Mr Badger estimated usage of CCTV at 20 minutes per shift. Mr Carnes made annotations on Mr Badger’s spreadsheet during and following their discussions. Mr Carnes added a number of tasks: recording water metres, cleaner’s times and rental movements in excel; monitoring VDU which manages alarms and CCTV; general patrols; record notes of incidents; welfare checks at remote sites and ad hoc tasks.

[55] Mr Carnes also added notes to Mr Badger’s spreadsheet indicating that guards are required to create additional spreadsheets on a monthly basis maintaining formulae and cumulative totals. Mr Carnes also noted that guards are required to change variables within the security management system to overcome faults and maintain integrity. Mr Carnes’ notes also indicate that guards are required to use a security management access system that incorporates access control, CCTV monitoring and manipulation, alarm monitoring/zone and input variables/manipulation and response at all times during their shifts. Further, Mr Carnes’ notes state that guards are required to monitor and co-ordinate continuously and that all areas/zones are not protected by alarm signal inputs requiring guards to visually maintain property protection via integrated security systems.

[56] Notwithstanding Mr Carnes’ input to the task list, based on Mr Badger’s observations at the site and his review of the tasks with Mr Carnes, Mr Badger maintained his view that there are no complex tasks completed on the site that are outside the Security Officer Level 1 and 2 classification. The training required at the site for new employees is not in excess of standard training at other industrial sites and comprises 4 x 12 hour shifts and training on the job. Mr Badger tendered MSS Security Guard Post Orders for the site and said that there had been no advice provided by the client that guards were performing additional duties. Mr Badger meets regularly with the client and would have been informed if additional duties were required.

[57] In oral evidence Mr Badger said that the site subject of the claim is an older site. The gate house is not considered to be a computerised gate house with advanced monitoring systems. It is not sealed or contained and does not have an access control system. It is also not enhanced by other technology such as vehicle registration software. In relation to the computer systems being passive, Mr Badger said that they are generally not used or accessed. This can be contrasted with systems where the operator is plugged in for the duration of the shift to CCTV and other electronic intrusion alarm systems, and is actively monitoring them. Mr Badger also said that at the site in question, monitoring and responding to electronic intrusion detection systems is not a major or substantial part of the duties of guards in the gatehouse. This can be contrasted with sites where there is advanced software for things like vehicle recognition which the operator is required to trap within a software program and upload, simultaneously with the vehicle’s arrival and departure. Guards using more complex systems are also entering freight details and using scanners for such items and monitoring CCTV and other items simultaneously. They are also permitting remote access through turnstiles gates and are generally fully interactive with the systems that are in place. More complex sites managed by Mr Badger can have up to 950 vehicle movements in a 24 hour period and although the site subject of the dispute is busy it is not as busy as other sites.

[58] In response to questions from me, Mr Badger agreed that inserting water metre readings into a spreadsheet involves data inputting and said that this is within Level 2 insofar as it refers to recording or reporting security incidents or matters on a computer based system. In the context where a client required water Levels to be monitored, they are a security matter. Mr Badger also maintained that MSS’s standard operating procedure for the site required this to be done manually notwithstanding that the client was requiring guards to use a spreadsheet. Mr Badger agreed that if a client was requiring MSS staff to do higher level work, then MSS should take this matter up with the client. Mr Badger said that this would have occurred if MSS was aware that guards were working with spreadsheets. Mr Badger agreed that it is arguable that this is not Level 2 work but maintained that the skills are not complex and that if it had been made aware of this work being done, MSS would have generated spreadsheets quite easily and set them up for a year so that guards were simply required to enter information.

[59] Mr Badger also agreed that he had been aware that Mr Carnes was claiming that the work using spreadsheets is complex but that he had not looked at the spreadsheets being used at the particular site. Mr Badger said that in his experience, inputting data into a spreadsheet is Level 2 work but that changing the number of days in a month in the cells of a spreadsheet could be described as manipulation of the spreadsheet based on computer programs.

Roster dispute

[60] As previously noted, the roster dispute as articulated in the Form F10 notification filed by Mr Carnes indicates that the issue in dispute is the practice of MSS of allocating overtime hours to shifts in the roster which fall before the maximum ordinary hours in the roster cycle have been worked. While Mr Carnes also took issue with the roster cycle of 24 weeks in circumstances where the Agreement provides for a maximum cycle of 16 weeks, this issue was not pressed at hearing. The annual leave issue is related to the roster dispute but is not dealt with in the questions for arbitration.

[61] The case advanced by Mr Carnes in his evidence and submissions at hearing attempted to depart from the roster dispute as it was articulated in the original Form F10 and the questions for arbitration agreed between the parties before the dispute proceeded to hearing. It is necessary to consider the dispute notification and the manner in which the dispute was articulated and framed. In relation to the roster dispute, the issue raised in the dispute notification is the practice adopted by MSS of allocating overtime to Sunday shifts in the roster in circumstances where those shifts fall before all of the ordinary hours in the roster cycle have been worked. In relation to this aspect of the dispute, reference is made to the decision of a Full Bench of the Commission in United Voice – Queensland Branch v MSS Security Pty Limited T/A MSS Security. 5 This case is discussed below. In his submissions at hearing, Mr Carnes advanced a different argument about this practice. In relation to his assertions about annual leave, the questions for arbitration do not deal with this issue in the terms of the outcome sought by Mr Carnes and the matter of annual leave calculations arises only in the context of the practice of allocating overtime to Sundays. These matters are dealt with below.

[62] Mr Carnes’ contention at the hearing in relation to the roster dispute is that MSS allocates accumulated overtime to almost all Sundays in the cycle. This contention is different to that articulated by Mr Carnes in the initial dispute notification which sought to dispute that MSS was permitted to roster any overtime on Sunday shifts before the maximum number of ordinary hours in a roster cycle had been worked. At hearing, Mr Carnes indicated that he had no issue with the roster cycle being 24 weeks rather than the 16 week cycle referred to in the Agreement. Mr Carnes also conceded that MSS is permitted to construct the roster according to “common practice”, and that it will continue to allocate accumulated overtime to shifts in the middle of the roster that carry a weekend loading consistent with the Decision of Tracey J in United Voice v Wilson Security Pty Ltd 6(Wilson Security) to minimise costs to the employer.

[63] However Mr Carnes submitted that MSS has constructed the roster so that the 96 hours of accumulated overtime are assigned to 94 hours of Sunday shifts, and the remaining two hours of overtime assigned to Saturday hours during the roster. Mr Carnes submitted that in accordance with “industry practice”, the overtime accumulated in the 24 week roster should be constructed to reflect “24 hours of time-plus-half, with the double-time component reflecting the remaining 72 hours”. In support of his submission in relation to “industry practice” Mr Carnes cited Wilson Security at paragraph [43], which in turn referred to a Decision of Hamberger SDP in Liquor, Hospitality and Miscellaneous Union v Chubb Security Australia Pty Ltd t/as Chubb Security Personnel 7(Chubb), as follows:

The roster dispute

[90] The question for arbitration agreed between the parties in relation to the roster dispute is whether MSS Pty Ltd is permitted under the Agreement to roster employees for an overtime shift on any day in the roster cycle including a day that would otherwise attract a penalty. Notwithstanding that Mr Carnes has conducted his case on a different basis, this is the question I intend to determine consistent with the Directions issued to the parties for the hearing.

[91] The practice of allocating overtime hours to other days on which a penalty is also payable and which fall before employees have worked the maximum number of ordinary hours in a roster cycle, has been the subject of a number of decisions by the Federal Court and the Commission which are summarised in the judgement of Tracey J in United Voice v Wilson Security Pty Ltd 13. It is necessary to consider those cases in some detail.

[92] In Liquor Hospitality and Miscellaneous Union v Chubb Security Australia Pty Ltd t/a Chubb Security Personnel (Chubb) 14Hamberger SDP was dealing with a dispute arising under a certified agreement which related to the proper construction of certain clauses of the agreement in circumstances where the employer had implemented a roster over an eight week cycle and was rostering overtime hours on specific Sunday shifts throughout that cycle. The Agreement clauses subject of the dispute provided for ordinary hours averaging 38 over one of a number of roster cycles of 76 hours in 14 days, 114 hours in 21 days, 152 hours in 28 days and 304 hours in 56 days. The employer in that case rostered employees so that their ordinary hours were worked on the basis of 304 in a roster cycle not exceeding 56 days. The certified agreement also provided that hours in excess of ordinary hours would be paid in accordance with overtime provisions and further provided an example whereby an employee working 336 hours over an eight week rotating roster would be paid 304 hours at ordinary time and 32 hours at overtime.

[93] The Senior Deputy President noted that the practice adopted by the Company, said to be consistent with the practice in the security industry, was to allocate rostered overtime to Sundays and described the arrangements adopted by Chubb in that case as follows:

“[11] … Over the eight week cycle, guards work exactly the same shifts as each other, but at different times through the cycle. Over the cycle, the guards will work either three 12 hour shifts or four 12 hour shifts per week. This averages out to 42 hours per week. In a 12 hour rotating roster, each guard is rostered to work 336 hours over an eight week period. 304 hours are rostered as ordinary hours and 32 hours are rostered as overtime hours. The overtime hours are rostered on two Sunday shifts and 8 hours of a Saturday morning/Sunday night shift. The overtime shifts occur at specific instances in the eight week roster period.”

[94] It was also noted that rostering overtime in this way was the most cost effective arrangement for the employer. Senior Deputy President Hamberger held that the certified agreement should be construed as permitting the allocation of overtime to Sundays over the course of a roster cycle on the basis of circumstances including the long standing and well recognised practice by many companies in the industry of rostering overtime on Sundays to minimise costs on the basis that ordinary and overtime rates on Sundays are effectively the same. The Deputy President also concluded that the wording of the hours of work clause of the certified agreement gave no indication about which days during a cycle are overtime and that the agreement permitted the Company to adopt the rostering method.

[95] In Harland and Ors v MSS Security Ltd (Harland) 15Williams C was dealing with a dispute under the dispute settlement procedure in the Security Services Industry Award 2010 which included a question as to whether the employer could put in place a roster which resulted in 12 hours of overtime being worked on a Sunday. The Commissioner noted that this aspect of the roster minimised the wages cost to the Company on the basis that overtime would otherwise be spread across a number of different shifts which would be paid for at double time and that the Sunday hours would also be paid for at double time so that when an overtime shift was rostered on a Sunday only one penalty would be payable.

[96] The Commissioner also noted that in making the Security Services Industry Award 2010 a Full Bench of the Commission specifically included a provision allowing for 12 hour shifts to be worked at ordinary time rather than a combination of ordinary time and overtime on the basis that an absence of provision for 12 hour ordinary time shifts would result in increased costs to employers and employees working more overtime than they may otherwise wish to work. The Commissioner went on to conclude that the roster design in any workplace is at the discretion of the employer subject to the Award requirements and that:

“[77] There is nothing inappropriate about the respondent designing its rosters to minimise its costs as the Full Bench has clearly recognised. In terms of the respondent’s approach to rostering ordinary hours and consequently where overtime hours fall in that roster, I am satisfied that the respondent is entitled to operate under the roster it has designed in this case.

[78] The rostering approach of the respondent is consistent with the terms of the Award. There is nothing in the Award that prohibits Sunday shifts being 12 hours of overtime. I am satisfied that the respondent’s calculations, in terms of ordinary hours and overtime under their roster, meet the requirements of the Award.”

[97] In United Voice – Queensland Branch v MSS Security Pty Ltd 16 a Full Bench of the Commission was considering an appeal against a decision of a Member of the Commission to approve an enterprise agreement – the proposed replacement to the Agreement subject of the present proceedings. In an appeal against the Decision to approve the agreement United Voice argued that it did not pass the better off overall test for reasons including that it contained a provision – clause 4.3.4 Overtime Allocation – stating that overtime in a 12-hour rotating roster cycle would generally be allocated to hours that fell on a Sunday: at the end of a Saturday and a Sunday day shift. The Full Bench noted that the effect of this clause was that overtime was allocated to Sunday work regardless of when in the roster those hours actually fell.

[98] The Decision of the Full Bench indicates that the grounds for the appeal included that the Member at first instance had relied incorrectly on the Decision of Williams C in Harland and that this case could be distinguished on the basis that the Award which was the focus in Harland did not contain the same overtime allocation provision as the Agreement and that Harland did not involve the application of the better off overall test. It was also submitted that the issue in the Decision subject of the appeal was the effect of the purported allocation of overtime to Sundays while Harland concerned a roster which had apparently been configured so that the overtime fell on a Sunday. The other ground of appeal was that the agreement contained a “voluntary overtime” provision which allowed employees to volunteer to work overtime at rates that were inferior to those in the Award.

[99] The Full Bench observed that pursuant to the Security Services Industry Award 2010 overtime is payable when hours in excess of the minimum have been worked and found that by shifting the hours from the end of the roster to Sundays earlier in the roster, the Agreement reduced the number of overtime hours for which loading would be payable resulting in disadvantage to employees on non-aggregated wages under the Agreement. The Full Bench went on to conclude that clauses of the Agreement that were less beneficial were not off-set by clauses that were more beneficial and that the Agreement did not pass the better off overall test.

[100] In United Voice v Wilson Security Pty Ltd 17 Tracey J was dealing with a claim that the employer had failed to comply with the terms of the Security Services Award 2010. The issue to be resolved was whether an employee who is rostered to work for more than the maximum span of ordinary hours, only starts to work overtime for the purpose of payment of overtime loadings once he or she had worked the full range of ordinary hours, and not before. This was the construction contended for by United Voice. Wilson Security contended that as part of the flexibility under the Award it was free to nominate particular overtime hours within the roster which fall before the worker’s ordinary hours have been exceeded and that it could nominate Sundays as days on which overtime had been worked. His Honour noted that in this way, Wilson Security could avoid having to pay both the Sunday double time penalty and the weekday double time at the end of the roster.

[101] The background facts in the case as set out in the judgement were that the Security Services Award 2010 permitted Wilson Security to promulgate a roster which contained 152 ordinary hours within a roster cycle of four weeks. The roster required guards to work 7 shifts of 12 hours duration per fortnight and repeated every four weeks with the pattern “flipping” after two weeks so that day shifts in the first fortnight were nightshifts in the second fortnight. Prior to 31 October 2016, overtime was not payable until employees had worked their full complement of ordinary hours – ie. 152 in a four week period. Under this arrangement the employee subject of the proceedings before Tracey J had worked Sunday shifts within the first 152 hours of the roster cycle and was paid double time for those shifts and then worked overtime hours on days 13 and 14 of the roster which were respectively a Wednesday and a Thursday with 6 overtime hours being worked on each of these days.

[102] After 31 October 2018 Wilson Security varied the roster such that overtime hours which had been allocated to shifts 13 and 14 were transferred to shifts 5 and 12 which fell on Sundays. The Company then ceased to pay the overtime penalty with respect to part of those shifts because they already attracted the Sunday loading.

[103] His Honour observed that the term “overtime” was not defined in the Award and that the parties accepted that it was to bear its ordinary and well understood industrial meaning – hours worked in addition to ordinary hours. His Honour further observed that the propositions that overtime hours are not worked until all 152 ordinary hours have been worked and that it is not open to the employer to fix rostering arrangements so that employees are prevented from being paid both weekend penalty rates and overtime during the four week cycle, were implicit in the submissions of United Voice.

[104] His Honour then turned to consider whether those implied restrictions on rostering found support in the text of the Award. Finding that the Award contained no such limitation, Tracey J concluded that on the basis that the Award provides for ordinary hours to be averaged over stipulated roster cycles at the discretion of the employer and for additional payments for overtime, it is open to the employer to:

•  Choose the day on which a roster is to begin;

•  Decide whether overtime hours can be included in the roster at a point before which all ordinary hours have been worked;

•  Decide on the number of days on which ordinary hours can be worked; and

•  Fix the number of days of the week on which ordinary hours are to be worked (subject to limitations in relation to limits on the duration of shifts and requirements for breaks between shifts.

[105] Accordingly, it was held that Wilson Security was permitted by the Award to act in the manner it had done. In reaching this conclusion, Tracey J observed that the decisions he had referred to were conflicting and highlighted that there is an absence of any clearly understood and mutually accepted understanding of the operation of the rostering provisions in the Award and the allocation of overtime to Sundays.

[106] The decision of Tracey J was upheld by the Full Court of the Federal Court on appeal. 18 In upholding the decision, the Full Court observed that the substance of the appellant’s case depended on conflating the meaning of overtime with the way that it has often (but not invariably) been organised and paid.19 The Full Court also held that the inherent meaning of overtime is time over the ordinary hours not necessarily after the ordinary hours.20 The Full Court further held that the findings of industrial tribunals or dictionary definitions do not assist given that they reflect common historical applications of overtime in one particular way, rather than a limitation to the true meaning of the term stating:

“Just because the extra or additional hours might often take place after the ordinary hours have been, or will be, worked, that does not preclude them from taking place before they have been, or will be, worked or in between the time in which ordinary hours will be worked. In any of these scenarios they are additional hours, and therefore constitute overtime for which a loading is payable, depending on when the additional hours are required to be performed.”  21

[107] The Full Court went on to conclude that under the terms of the Security Services Award 2010, Wilson Security could choose what hours could be worked as ordinary hours and that by notifying the employees concerned that his overtime hours would be allocated to Sundays, the employer necessarily notified them that the other rostered hours – which did not exceed 152 in number – were to be worked as ordinary hours.

[108] The question for arbitration centres on whether the Agreement subject of Mr Carnes’ dispute allows MSS to roster employees for an overtime shift on any day in the roster cycle, including a Sunday which also attracts a penalty payment. This is consistent with the dispute as notified by Mr Carnes. At the hearing in relation to the matter, Mr Carnes did not argue that the Agreement prohibits MSS from rostering employees in this way. Mr Carnes concedes that MSS is permitted to construct the roster according to “common practice” in the industry.

[109] However Mr Carnes submits that “common practice” is the roster outlined by Senior Deputy President Hamberger in Chubb and referred to by Tracey J in Wilson. Essentially, Mr Carnes maintains that these decisions establish that it is industry practice for employers to roster 32 overtime hours in a four week cycle by allocating 24 of those hours to two Sunday shifts and eight hours to a Saturday night/Sunday morning shift. Mr Carnes also maintains that by allocating 96 overtime hours almost exclusively to Sundays, MSS is not rostering employees in a manner that is consistent with this industry practice. The outcome sought by Mr Carnes is that the Commission require that MSS apply this practice.

[110] Mr Carnes’ argument on this question is misconceived and does not engage with the question for determination or the issues in dispute. Neither Hamberger SDP in Chubb nor Tracey J in Wilson established an industry practice in relation to the number of overtime hours which can be rostered on days which also attract a penalty for ordinary hours. To the contrary, Tracey J found that there is no commonly understood industry practice in this regard. The decision of Tracey J, confirmed by the Full Court of the Federal Court on appeal, was simply that the Security Services Award 2010 allows an employer to designate that overtime will be allocated to particular days in a roster cycle – including Sundays – whether or not all ordinary hours have been worked at that point. This is the only practice that the decisions identify. The decisions do not establish the proportion of hours that can be allocated to Sundays or any other days. Even if there an industry practice as to the proportion of Sundays that overtime can be allocated to in a roster cycle, that practice would not be determinative of the proper construction of the Agreement in the present case. It would simply be a contextual matter which may or may not be relevant. In any event, there is no such practice and this issue does not arise.

[111] The question for arbitration in the present case requires me to determine whether the Agreement under which Mr Carnes has raised the dispute, provides the same right to MSS. Regrettably Mr Carnes did not address the proper construction of the Agreement. Consistent with the question for determination, I turn to consider this matter. Clause 4.1.1 of the Agreement provides that the ordinary hours of duty shall be worked in accordance with a roster set by the employer in consultation with employees and that the duration of the roster cycle be agreed. Mr Badger’s evidence is that the roster was introduced following consultation with employees and that the 24 week duration of the roster cycle is agreed. Mr Carnes does not dispute this assertion and as previously noted does not take issue with the duration of the roster cycle.

[112] Clause 4.2.2 also provides that the roster may provide for an accrued rostered day off but this is not a requirement. Clause 4.1.2 provides that the maximum period over which ordinary hours may be averaged is 16 weeks. At the site where the dispute arose, the roster implemented by MSS has a 24 week cycle over which ordinary hours are averaged. While it is arguable that this is contrary to the terms of the Agreement, Mr Carnes does not dispute the period over which ordinary hours are rostered and this matter is not the subject of the questions for determination. Further, the period over which the ordinary hours are averaged is not relevant to the matter in dispute – whether overtime can be allocated to particular days in the roster cycle where a penalty already applies in circumstances before employees have worked the maximum ordinary hours in the roster cycle.

[113] By virtue of clause 4.2.1 of the Agreement, the employer must notify employees who work their ordinary hours in accordance with a roster of the commencing and ceasing times of their rostered hours of work by either posting the roster on a notice board or by electronic means. Once such times are notified they may not be changed without payment of overtime or seven days’ notice, unless agreement is reached for a lesser period of notice. Clause 4.3 contains a definition of overtime – all time worked in excess of the ordinary daily hours of work or outside of the employee’s usual commencing and ceasing time. The ordinary daily hours for full time employees are prescribed in clause 4.1.6 as a minimum of 7.6 and a maximum of 12. As previously noted, the starting and ceasing times for employees who work in accordance with a roster must be notified in accordance with clause 4.2.1.

[114] On the plain words of clause 4.1.1, the employer has the discretion to set ordinary hours by establishing a roster subject to meeting the other requirements of the clause. In setting a roster the employer can – subject to consultation and other requirements in clause 4.1.2 – determine the period over which ordinary hours may be averaged. The employer can also determine that shifts of up to 12 ordinary hours in a day may be worked. The effect of these terms is that more or less than 38 ordinary hours may be worked in a week provided on any day, no less than 7.6 ordinary hours and no more than 12 ordinary hours will be worked by a full time employee and that over the roster cycle, an average of 38 ordinary hours is worked. The plain words of the Agreement do not prevent the employer from setting a roster which allocates ordinary and overtime hours in a manner and on days and at times determined by the employer, including on Saturdays or Sundays.

[115] This is emphasised by the fact that the Agreement prescribes rates for hours worked on Saturdays or Sundays as ordinary hours or overtime. Whether such hours are payable as ordinary or overtime hours depends on the roster. Clause 3.4.3 prescribes penalty rates for ordinary hours worked on Saturdays and/or Sundays, while clause 4.3.4 provides for a rate for overtime worked on Sundays with overtime worked on Saturdays being subject to the same overtime provisions as operate on other days of the week. This means that the employer has the ability to set a roster which provides for ordinary hours to be worked on Saturdays or Sundays at penalty rates or to roster overtime on Saturdays and Sundays for which overtime rates are payable.

[116] It is also the case that the plain words of the Agreement do not require ordinary hours to be exhausted before working overtime. There are some circumstances where an employee under the Agreement who has worked the maximum ordinary hours on a day or during a week will be entitled to overtime. For example, if the employer changed the notified starting or finishing time of the employee without providing seven days’ notice, time worked outside the notified hours would be deemed to be overtime regardless of whether the employee had worked less than the maximum daily ordinary hours allowed by the Agreement. It has always been the case that industrial instruments can entitle an employee to be paid at overtime rates in circumstances where the employee worked on ordinary hours on a particular day – for example an employee absent on an ordinary working day who was called in to work hours outside of ordinary hours for that day, would be entitled to be paid for such work at overtime rates.

[117] While clause 4.3.1 of the Agreement provides that overtime is not payable until an employee works hours in excess of rostered hours I am of the view that this does not prevent the employer from allocating overtime hours to days which fall before the employee has worked the full number of ordinary hour in the roster cycle. This is because rostered hours include daily hours, weekly hours and hours over the whole roster cycle as set by the employer. The first sentence of clause 4.3.1 is a deeming provision which deems time worked in excess of ordinary daily hours of work or hours of work outside the employee’s usual commencing and ceasing times to be overtime. The proviso in the second last sentence of the first paragraph of clause 4.3.1 operates so that the deemed overtime is accrued but is not payable until the employee has worked in excess of rostered hours as averaged over the roster cycle. The provision also makes clear that it is the roster which determines ordinary and overtime.

[118] To construe this proviso in a literal manner so that it prevents the employer from allocating overtime to days in the roster cycle which fall before the maximum ordinary hours in the cycle have been worked, would render other provisions of the Agreement in relation to overtime of no effect. For example, construed literally, the proviso would have the effect that an employee whose notified hours were changed without the employee being given seven days’ notice, would not be entitled to overtime as provided in clause 4.2.1, if the employee worked only rostered hours and did not work any hours in excess of the rostered hours.

[119] Neither party raised any contextual issues external to the terms of the Agreement. If the context was considered it would include the fact that the underpinning Award has been found by the Full Court of the Federal Court to give employers the right to establish rosters in accordance with the cycles established under the Award, and to allocate overtime shifts to weekends – including Sundays – without limitation, regardless of whether employees have already worked the maximum ordinary hours in a roster cycle. This would support the construction of the Agreement I have determined.

CONCLUSION

[120] For these reasons, I answer the questions for determination as follows:

Question 1: On a proper construction of the MSS Security Pty Ltd Enterprise Agreement (QLD) 2011 – 2014 (the Agreement) is MSS Security Pty Ltd permitted to roster employees for an overtime shift on any day in the roster cycle, including on a day which also attracts a penalty for ordinary hours, where that penalty is absorbed into the overtime rate the employee is paid for that shift?;

Answer: Yes.

Question 2: On the basis of the duties required to be performed by Mr Carnes, is Mr Carnes entitled to be classified as a Security Officer Level 3 under the Agreement?

Answer: No.

[121] While I have not dealt with the aspect of Mr Carnes’ case in relation to annual leave on the basis that it is outside the questions for determination, I make the following observation. While not accepting that the Commission can deal with the dispute in relation to this matter, MSS in its submission asserts that employees are being correctly paid for annual leave pursuant to its obligations under the NES, on the basis that they are entitled to 152 hours of annual leave per annum plus an additional week on the basis that they are shift workers. This assertion may not be correct.

[122] Annual leave under the NES is expressed as an entitlement in weeks not hours. To comply with the NES entitlement to annual leave, MSS must ensure that employees who are shift workers as defined for the purpose of the NES entitlement to annual leave, are entitled to be absent from work for a period of five weeks and to be paid for ordinary hours during such period. By expressing annual leave entitlements in hours in circumstances where employees are working a shift roster which provides for up to 12 ordinary hours to be worked in a day and in excess of 38 ordinary hours in a week, it is possible that employees will receive less than the five weeks of leave that they are entitled to under the NES. MSS should ensure that employees are not receiving less than their full entitlements to annual leave.

DEPUTY PRESIDENT

Appearances:

Mr C Carnes on his own behalf.

Ms S Lock on behalf of MSS Security Pty Ltd.

Hearing details:

Brisbane.

1 March.

2019.

Printed by authority of the Commonwealth Government Printer

<PR714120>

 1   [2015] FWCFB 5619.

 2   [2017] FWCFB 3005 at [14].

 3   Witness Statement of Mr Anthony Heathcote dated 6 December 2018.

 4   Witness Statement of Mr Martin Price dated 6 December 2018.

 5   [2017] FWCFB 651.

 6 [2018] FCA 1215.

 7   PR985918 (C2008/2728).

 8 Ibid at [43].

 9   Carpenter v Corona Manufacturing (2001) IR 387.

 10   [2009] FMC 1060.

 11   Federated Tobacco Workers of Australia v Amalgamated Metal Workers’ Union and Anor (1998) 29 IR 263 at 275.

 12   Ware v O’Donnell Griffin (Television Services) Pty Ltd (1998) 29 IR 263 at 275.

 13 [2018] FCA 1215.

 14   Australian Industrial Relations Commission PR985918.

 15   [2013] FWC 8064.

 16   [2017] FWCFB 651.

 17 [2018] FCA 1215.

 18   United Voice v Wilson Security Pty Ltd [2019] FCAFC 66.

 19 Ibid at [28].

 20 Ibid at [29].

 21   Ibid at [31] –[32].