Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
[2022] FWC 2326
•9 SEPTEMBER 2022
| [2022] FWC 2326 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
(B2022/578)
| COMMISSIONER WILLIAMS | PERTH, 9 SEPTEMBER 2022 |
Mss Security Pty Ltd employees engaged in security operations at the Pilbara Port Authority sites in Port Hedland, WA
On 15 June 2022 the Construction, Forestry, Maritime, Mining and Energy Union – Maritime Union of Australia Division (the MUA) applied under s.236 of the Fair Work Act 2009 (the Act) for a majority support determination concerning a group of employees employed by MSS Security Pty Ltd (the respondent or MSS).
The Commission convened a conference of the parties on 5 July 2022 during which the applicant sought to amend its application to clarify that the group of employees to be covered by the proposed enterprise agreement was “employees of the respondent engaged in security operations at the Pilbara Port Authority sites in Western Australia.” (the relevant employees). The Commission agreed to amend the application accordingly.
At the conference the respondent opposed the making of a majority support determination on the grounds that the group of employees who would be covered by an agreement was not fairly chosen, and in any event it would not be reasonable to make a determination in all the circumstances.
It was however agreed at this conference that the parties would provide information to the Commission in accordance with directions for the Commission to determine whether a majority of the relevant employees want to bargain with the respondent.
Having considered the information provided by both parties, on 28 July 2022 the Commission advised the parties by email that it was satisfied that there was a majority of the relevant employees who wish to bargain for an enterprise agreement with the respondent.
On 29 July 2022 the Commission issued a Notice of Listing for a hearing of the respondent’s objections to be held on 31 August 2022 with directions for the parties to file their respective materials.
At the hearing evidence for the respondent was given by Mr Paul Price, MSS Security’s General manager – W.A. and for the MUA by Mr Joel O’Brien, a MUA Organiser.
Evidence and factual findings
Mr Price has been the WA General Manager since November 2013 and has 25 years’ experience in the security industry.
MSS Security provides security services to industries including mining, construction, oil and gas, rail, maritime, defence, property and facility management, manufacturing, aviation and government.
All MSS Security Officers are offered a standard employment contract which is not site specific. The contract states that “as a Security Officer with the Company you agree to perform your duties at any site at which the Company has a contract to provide security services”.
This means employees can be reassigned to other client sites in accordance with their contract. Additionally, employees may be reassigned to other sites pursuant to clause 29 ‘Consultation about change of contract of the Security Services Industry Award 2020’ (the Award), due to operational reasons or at an employee’s request.
In WA MSS employs approximately 600 employees to work in the Perth metropolitan area and regional areas across different client sites and industries.
In regional WA, MSS provides security services to clients in the Pilbara region including Port Hedland, Newman, Karratha, Onslow and Barrow Island. It also provides aviation screening services to clients based in Port Hedland, Newman, Karratha and Kalgoorlie with all employees working on aviation sites being employed locally.
Of approximately 600 WA site-based employees, 32% are employed to work at regional client sites.
The Award covers approximately 82% of WA based employees and is the applicable industrial instrument for regional employees.
Two enterprise agreements are operating in WA, being the MSS Security Pty Limited – United Workers Union – Perth Airport Enterprise Agreement 2020 and the MSS Security Pty Ltd Public Transport Authority Enterprise Agreement 2017.
Together these two agreements cover approximately 17% of WA employees.
Mr Price’s evidence is that Pilbara Port Authority (“PPA” or “Client”) based employees make up 4% of the WA site-based workforce.
The PPA has three sites located in Port Hedland, Dampier and Ashburton. These are in close proximity to sites of other MSS clients.
He says employees are cross utilised, trained and employed to work between sites in WA, ensuring operations and shifts are sufficiently covered to meet contractual service obligations where required.
Employees can also be cross-utilised between Perth-based and/or fly-in, fly-out (“FIFO”) sites.
He says currently MSS has approximately 25 employees working on the PPA contract.
In addition to these employees, MSS has approximately 23 Security Officers who have formerly worked at the PPA site but are now working at other sites or in other roles within MSS. These 23 employees could therefore be rostered to work at PPA sites if required. This demonstrates how employees are and can be cross utilised between sites, be it FIFO or any other Perth-based roles.
His evidence is that it is common for clients to require site specific training and qualifications. He provided the following examples:
a) MSS provides services to other maritime based client sites (in addition to the Pilbara Port Authority) where the MSIC and associated Maritime Awareness training is required to be completed and obtained. In WA, MSS have approximately 60 Security Officers who hold an MSIC.
b) MSS provides services to clients in the aviation industry where an ASIC is required to be obtained. In WA, they have approximately 50 employees who hold an ASIC.
c) MSS provides services to clients who require a negative vetting level 1 (“NV1”) and baseline clearance which is an Australian Government security clearance governed by the Department of Defence. In WA, they have approximately 37 employees who hold a baseline or NV1 clearance.
d) MSS have numerous clients who require MSS Security employees to satisfy and meet other clearance requirements before being mobilised to site.
e) In addition to clearance requirements, numerous clients require MSS employees to hold additional qualifications such as Occupational First Aid, Tactical Emergency Casualty Care First Aid, Drug & Alcohol Screening, Fire Warden/Response, Dangerous Goods Licence and Baton & Handcuff licenses to name a few.
Regarding the reporting structure within MSS for the PPA contract, the applicable structure is that which applies to regional sites with the exception of aviation sites. Under this structure a security officer reports to the Site Supervisor/Manager who reports to the Regional Operations Supervisor who reports to the State Operations Manager who reports to Mr Price, the General Manager.
MSS was first awarded the PPA contract in 2011. The current contract with a period of three years ends in late 2022. There are a further two one-year extensions available that may be granted at the discretion of the client.
The contract has a fixed increase per annum for the full five years i.e., initial three-year term and two one-year extension options, which cannot be negotiated.
The scope of services that MSS is required to provide to the PPA is common to that of other client contracts that MSS provides services to. Ultimately, employees are responsible for ensuring the security of the site which is no different in nature to that of other sites that MSS provide services to.
Mr Price’s evidence was that employees mobilised to work at PPA sites are required to hold the following qualifications and licences:
a) Certificate II in Security Operations
b) Current and valid WA Security Officer Licence
c) Current and valid motor vehicle driver’s licence
d) Current Occupational First Aid certificate
e) Current and valid Maritime Security Identification Card (MSIC)
f) Authorised Drug Screening Officer qualification
g) Basic firefighting certificate
h) Complete Maritime Security Awareness training for Maritime Security Guards
Mr Price’s evidence was that due to the fixed fee nature of the contract with PPA any increases to wages or additional costs would not be recoverable from the client and would negatively impact the financial viability of the contract. Increases to wages and cost impacting terms and conditions negotiated as part of any future enterprise agreement could impact MSS’s ability to retain the contract in future.
Security officers are often required to complete client specific inductions or modules prior to being mobilised. This can be done on a client specific portal or website, or in person, or on site. Accordingly, the requirement to complete a client specific induction is not unique to the PPA client or employees, rather, it is a standard requirement for all Security Officers working in WA and nationally.
His evidence as to the duties done at PPA sites is as follows.
a) PPA Security Officers do not control the embarkation or disembarkation of people, baggage, and cargo onto a security regulated ship.
b) Access control for MSIC holders – Security Officers may check the legitimacy and validity of an MSIC holder on site when conducting a patrol. This task is no different to a Security Officer who, as part of their access control duties, check the identification of a person entering or on a site to ensure that they are authorised to be there. Such access control tasks are fundamentally conducted at all sites where MSS is required to conduct access control duties.
c) Further, MSIC holders gain access to the site through an access card. The issuing and revoking of such access cards are managed by the Client.
d) Access control for visitors (non MSIC holders) – PPA Security Officers use the access control system, and once all checks are clear, they issue the person with a temporary visitor card. This is no different to other sites where visitors are required to be issued with a visitor pass upon being identified and confirmed by the client (through an access control system) that they are permitted to be on site.
e) Reporting of incidents – all security incidents, breaches and other incident reports are recorded and reported to the Client, who then determines next steps required. In the event that the Client identifies a breach of the MTOFSA or MTOFSR, the Client is responsible to report to the relevant authorities (i.e. Department of Home Affairs).
f) Security Officers working at the PPA Port Hedland site conduct waterborne patrols on board a security patrol vessel provided by PPA. These patrols are conducted on the inner harbour only. The purpose of these patrols is to identify any potential security breaches, attempt to deal with such breaches in the first instance and if unable to resolve the matter, to escalate to the relevant authority who will deal with the matter (i.e. water police or customs). This core function is no different than any ordinary security officer conducting patrol on foot or in a vehicle around client premises, searching for any potential breaches.
Relevantly, Mr O’Brien’s evidence was that during discussions with relevant employees he was informed the following about the training requirements:
a) Firstly, the relevant employees are to be trained in the relevant maritime security legislation: namely the Maritime Transport and Offshore Facilities Security Act 2003 and the Maritime Transport and Offshore Facilities Security Regs 2003.
b) Secondly, the relevant employees are required to undertake specialised training, namely, the Maritime Awareness Security Training that is specific to the relevant employees and is not a requirement for the rest of the security officers.
c) Thirdly, the relevant employees are required to hold a current Maritime Security Identification Card. Whilst relevant employees can perform the duties of a security officer at other sites, a security officer who performs work in non-port sites and does not hold valid MSIC cannot be rostered to work on the ports.
d) Fourthly, the relevant employees are required to complete the induction program on the Pilbara Ports Authority Portal.
Mr O’Brien says that during his discussions with the relevant employees, they explained to him that they perform the following duties:
a) Conduct Maritime Security Identification card (MSIC) checks on the wharves at the Pilbara ports.
b) Controlling embarkation/disembarkation of people, baggage and cargo onto a security regulated ship.
c) Access control - issuing and revoking Port access cards - Checking of documentation (including identity documents).
d) Monitoring of the maritime security zones, landside restricted zones & waterside restricted zones (wharf/jetties, tug pens, vessels, cargo and ship stores).
e) Waterside security patrols on vessels of inner and outer harbour.
f) Conduct recreational vessel incident reports in a Maritime security zone.
g) Reporting breaches of Maritime Transport and Offshore Facilities Security Act 2003 and the Maritime Transport and Offshore Facilities Security Regs 2003 to the Department of Home Affairs.
He says that the duties and responsibilities of the relevant employees are outlined in the respondent’s job description form.[1]
Under cross examination it became clear that a number of the duties Mr O’Brien said the MUA’s member undertook for MSS at the PPA were in fact not included on the job description he had included as part of his evidence.
The evidence of Mr Price and Mr O’Brien concerning the duties the relevant employees perform is quite different.
Mr O’Brien’s evidence was that the duties listed in his statement were those he had been informed by employees they did. This is not evidence of Mr O’Brien’s own knowledge.
Mr Price has been the General Manager W.A since 2013 and is in a position to be well aware of the duties the relevant employees perform.
Consequently, considering the above and the conflicting evidence from the two witnesses about the duties performed I prefer the evidence of Mr Price.
Finally, the applicant in its closing submissions pointed to a number of concessions made by Mr Price under cross examination to the effect that the relevant employees were geographically, operationally or organisationally distinct. Mr Price is neither a lawyer nor a workplace relations practitioner. The Commission of course is not bound by Mr Price’s lay man’s view of these general questions that were put to him.
The legislation
The relevant sections of the legislation are set out below.
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed single enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.”
“237 When the FWC must make a majority support determination
Majority support determination
(1) The FWC must make a majority support determination in relation to a proposed single enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which the FWC must be satisfied before making a majority support determination
(2) The FWC must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by the FWC; and
(ii) who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
With respect to the requirements of section 237, the Commission is satisfied that an application for a determination has been made.
As previously advised to the parties, based on the materials provided by both parties the Commission is satisfied that a majority of the relevant employees who will be covered by the agreement want to bargain.
The Commissioner is also satisfied that the employer, MSS, that would be covered by the agreement has not yet agreed to bargain nor initiated bargaining for an agreement.
The outstanding matters of which the Commission must be satisfied before making a majority support determination are those set out in section 237 (2) (c) and (d), namely that the group of employees who will be covered by the agreement was fairly chosen and it is reasonable in all the circumstances to make the determination.
Fairly chosen
Geographically distinct?
There is no dispute that in this instance the relevant employees do not include all of the employees of the employer. Consequently section 237 (3 A) applies to this matter.
Therefore, the Commission must in deciding whether the group of employees was fairly chosen to take into account whether the group is geographically, operationally or organisationally distinct.
It is important when considering distinctiveness to bear in mind the identity of the group of employees.
The relevant employees are “Employees of the respondent engaged in security operations at the Pilbara Port Authority sites in Western Australia”.
The relevant employees are only those who are engaged in security operations at PPA sites.
Self-evidently, employees not engaged in security operations at PPA sites will not be covered by the proposed agreement and are not relevant employees.
The three PPA sites are the only locations at which relevant employees work. There are no other employees of MSS working at the three PPA sites at which the relevant employees work.
The relevant employees do not work at the same geographical locations as other MSS employees.
The evidence is that there are other MSS clients, at whose sites other employees of MSS work. These sites are in the vicinity of the PPA sites. The closest another client’s site is to any of the PPA sites is 1.5 km.[2]
The fact that some MSS employees may be reassigned away from PPA sites and others who had been working for other clients may be assigned to work at a PPA site does not detract from the geographical distinctness of the relevant employees.
If an employee engaged in security operations at a PPA site is reassigned to a different client’s site they are no longer a relevant employee. Equally an employee who is assigned from elsewhere to work at a PPA site only then becomes a relevant employee.
In the Commission’s opinion the relevant employees are indeed geographically distinct.
On this basis the Commission’s decision is that the relevant employees are a fairly chosen group.
Organisationally distinct?
The question of whether the relevant employees is organisationally distinct refers to the manner in which MSS has organised and conducts its enterprise.
The evidence is that whilst there are some differences between the duties of the relevant employees compared with the duties of other security officers of MSS those difference in my view are limited.
The extent to which there are differential duties in this case does not support a conclusion that the relevant employees are organisationally distinct.
The Commission’s opinion is that the relevant employees are not organisationally distinct
Operationally distinct?
The question of whether the relevant employees are operationally distinct refers to the industrial or productive activity carried out by the employer, not differences in role, skill task or function of individuals or groups of employees. A finding of operational distinctiveness will be open if the relevant employees are involved in an identified industrial or productive activity which none of the employer’s other employees are engaged in.
Considering the evidence in this case the Commission’s opinion is that the relevant employees are not operationally distinct.
Other considerations regarding fairly chosen
Whilst the Commission is required to make a finding in relation to whether the relevant employees are geographically, organisationally, or operationally distinct, the case law has determined that a group of employees may still be fairly chosen even if there is no distinctiveness found.[3]
As discussed at the hearing, in this case it is clear that the relevant employees have been selected as a group because they are the employees of MSS in Western Australia that fall within the MUA’s eligibility rule. The relevance of this is that an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to the work that would be performed under the agreement.[4]
This is a logical reason why the relevant employees have been chosen.
The selection of this particular group of employees is not contrived, illogical or artificial. The selection of this particular group is not arbitrary or discriminatory.
There is no suggestion that the interests of other employees excluded from the group are negatively affected.
For this reason, even if there were no geographical distinctiveness, the Commission’s decision is that the group of employees, the relevant employees, has been fairly chosen.
In summary the Commission has found that the relevant employees are geographically distinct and therefore this group is fairly chosen.
However even if that is not correct, the relevant employees were the group chosen because they are the only employees of MSS the MUA is able to represent in bargaining which is a logical reason that is not arbitrary or discriminatory. Therefore, that group has been fairy chosen by the union.
Is it reasonable in all the circumstances to make a majority support determination?
The respondent submits it would not be reasonable in the circumstances for the Commission to make the majority support determination sought.
The respondent submits that the impacts of making a majority support determination on MSS must be taken into account.
It submits that a majority support determination, if made, would place a significant financial and administrative burden on MSS given the current PPA client contract will expire in late 2022, with no guarantee of extension, and no ability to pass on in any additional costs incurred as a result of a possible enterprise agreement.
It is submitted that additional costs by way of improved terms and conditions of employment that might be negotiated as part of an enterprise agreement would negatively impact the financial viability of the contract with PPA, placing MSS in a disadvantaged position to remain competitive and retain this contract. A majority support determination therefore would be to the detriment of MSS’s productivity.
Whilst the Commission takes the concerns of MSS at face value, the submission that an enterprise agreement, if one is ultimately finalised, will detrimentally impact on the company cannot be assessed by the Commission on the limited evidence provided. There is no evidence before the Commission as to how profitable or not the current contract with PPA is for MSS. On the other side of the ledger, it is unknown and entirely speculative what the cost impact would be of an enterprise agreement negotiated sometime in the future.
There is not a sufficient basis for the Commission to conclude that, in all the circumstances, it would be unreasonable to make a majority support determination.
Conclusion
Considering the requirements of section 237(2), the Commission is satisfied that a majority of the relevant employees want to bargain with MSS for an agreement and that MSS have not yet agreed to bargain, nor initiated bargaining for the agreement.
The Commission is also satisfied that the group of employees who will be covered by the agreement, the relevant employees, was fairly chosen and the Commission is satisfied that it is reasonable in all the circumstances to make a majority support determination.
Consequently, the Commission must now make a Majority Support Determination.
[1] Mr O’Brien’s statement Attachment 4.
[2] Exhibit R2 2.3.
[3] 2017 FWCFB 1165 at [42].
[4] S.176(3)(b).
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