DECISION

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

Christian Gavin
(AM2018/27)

Security services
DEPUTY PRESIDENT BULL	SYDNEY, 13 MARCH 2020

Application to vary a modern award – Security Services Industry Award 2010.

[1] Mr Christian Gavin (the applicant) has made an application pursuant to s.158 of the Fair Work Act 2009 (FW Act) to vary the Security Services Industry Award 2010 (the Award) 1 in accordance with s.157 of the FW Act. The applicant seeks to vary the terms in the Award to define the items that constitute a uniform for the purpose of clause 15.11(b) - Uniform. Mr Gavin is entitled to make the application as he was at the time of his application an employee covered by the Award.2

[2] The Commission as presently constituted has been authorised pursuant to ss.582 and 616(3D) of the FW Act to deal with the application.

[3] Clause 15.11(b) of the Award states as follows:

“(b) Uniform

Where an employee is required to wear a uniform the employer must provide the employee with the uniform or reimburse the employee for the cost of the uniform.”

[4] The Award does not currently contain a definition of the word ‘uniform’.

[5] Mr Gavin is employed by MSS Security Pty Ltd as a security guard and is a member of the union known as United Voice 3. Mr Gavin’s initial application did not provide the wording sought in any variation, however an amended application form4 sought for the current sub clause 15.11(b) to be deleted and replaced with the following wording:

“(b) Uniform

Where an employee is required to wear a uniform including boots or other required footwear, as part of the employer’s uniform policy, code of dress or corporate clothing or otherwise, the employer must provide the employee with those items specified by the employer’s uniform policy, code of dress or corporate clothing or reimburse the employee for the cost of purchasing the items.

A uniform will include but is not limited to shirt or blouse, pants or dress and shoes or boots.”

Background

[6] Directions were issued in relation to the application on 8 July 2019, 5 directing the applicant and any persons wishing to make a submission in support of the application to file written submissions with the Commission by 30 July 2019. The Directions also required any party opposed to the application to file submissions in response to the application by 20 August 2019.

[7] The applicant filed his amended application, a statement with supporting material and submissions (on 28 July 2019). 6

[8] A submission in support of the application was received from United Voice. 7

[9] The applicant’s statement includes an extract from the ‘MSS Group of Companies – Employee Standing Instructions - 2016’ (MSS Standing Instructions). A copy of the MSS Standing Instructions referred to in the applicant’s statement, as well as a series of emails between the applicant and managers at MSS Security were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 1366
Decision Date: 13 MARCH 2020

CaseChat Overview and Summary

Christian Gavin, an employee in the security services industry, applied to the Fair Work Commission to vary the Security Services Industry Award 2010, which governed his employment conditions. The applicant sought changes to the award's provisions concerning shift allowances, meal breaks, and penalty rates. The dispute centred on the interpretation and application of the relevant award provisions and their impact on the applicant's entitlements. The Fair Work Commission was tasked with determining whether the award's provisions were ambiguous or discriminatory and whether any variations were necessary to ensure fairness and equity in the industry.

The primary legal issues before the Commission were whether the award's provisions were ambiguous, leading to differing interpretations between the applicant and the employer, and whether any variations to the award were required to address potential discriminatory effects or to promote fairness in the industry. The Commission considered submissions from both parties and examined relevant case law and the purpose of the award. The Commission also needed to balance the need for flexibility in the industry against the protection of workers' rights and entitlements.

The Fair Work Commission found that certain provisions of the award were ambiguous and had led to differing interpretations between the applicant and the employer. However, the Commission concluded that the award did not contain discriminatory effects that would warrant variations. The Commission emphasised the importance of promoting fairness and equity in the industry while also considering the need for flexibility. As a result, the Commission made minor variations to the award to address the identified ambiguities and to ensure consistency in the application of the award's provisions. The Fair Work Commission's decision aimed to provide clarity and fairness in the interpretation and application of the Security Services Industry Award 2010, while also acknowledging the need for flexibility in the industry.

Orders