Dixon v Pro-Tect Security Management Pty Ltd
[2022] FedCFamC2G 854
•18 October 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
Dixon v Pro-Tect Security Management Pty Ltd [2022] FedCFamC2G 854
File number: SYG 1973 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 18 October 2022 Catchwords: INDUSTRIAL LAW – alleged underpayment of Award entitlements – alleged underpayment of the minimum wage under the Award – alleged contravention of the Award in breach of the Fair Work Act 2009 (Cth). Legislation: Fair Work Act 2009 (Cth) ss 45, 47, 48, 545, 547, 550.
Evidence Act 1995 (Cth) s 140.
Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rule 2021 rr. 13.04, 13.05, 13.06.
Cases cited: Fair Work Ombudsman v Raying Holding Pty Ltd (No 2) (2017) 324 FLR 289 Division: Fair Work Number of paragraphs: 91 Date of hearing: 28 September 2022 Place: Sydney Counsel for the Applicant: Mr A. Neal Solicitor for the Applicant: Slater & Gordon Counsel for the Second Respondent: Mr D. Burwood Solicitor for the Second Respondent: Elysium Law ORDERS
SYG 1973 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAI DIXON
Applicant
AND: PRO-TECT SECURITY MANAGEMENT PTY LTD ABN 51145301391
First Respondent
TAREK SOBH
Second Respondent
STEVE MOSS
Third Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
18 October 2022
THE COURT ORDERS THAT:
1.The application as against the first respondent stand over to a future date for directions as to the future conduct of the matter.
2.The applicant provide the Court within 28 days a spreadsheet particularising the first respondent’s underpayments of his wages calculated in accordance with these reasons.
3.The application as against the second respondent stand over to a future date for directions as to further submissions on his offer to make a payment to the applicant.
4.As against the third respondent, the application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
Introduction
From 25 September 2018 to 11 September 2020, the first respondent, Pro-Tect Security Management Pty Ltd (“Pro-Tect Security”), employed the applicant, Mr Dixon, as a casual security officer at Tweed Mall in Tweed Heads, New South Wales. Mr Dixon alleged that Pro‑Tect Security had breached the Security Services Industry Award 2010 (“2010 Award”) and the Security Services Industry Award 2020 (“2020 Award”) and the Fair Work Act 2009 (Cth) (“FW Act”) by underpaying him his entitlement to minimum pay at the Security Officer Level 2 classification as well as his entitlements to weekend, overnight and public holiday penalty rates and to first aid officer and supervisor allowances. As there was no relevant and material difference in the terms of the two awards, in these reasons they will be referred to collectively as the “Award”, where appropriate.
Mr Dixon sought declarations, compensation of $27,486.25, interest and the imposition of pecuniary penalties.
Relying on s.550 of the FW Act, Mr Dixon also sought declarations that the second respondent Mr Sobh, the owner and sole Director of Pro-Tect Security from 4 November 2019 to 23 March 2022, and the third respondent Mr Moss, a sometime senior manager of Pro-Tect Security and the person who offered him the job in question, were involved in Pro-Tect Security’s alleged contraventions.
Pro-Tect Security was briefly represented by Mr Sobh’s solicitor and, so represented, appeared at a directions hearing on 10 December 2021. However, although it has filed a notice of address for service, it has not filed a response to the application. Mr Moss, although served, has also not filed any documents or taken any active part in the proceeding.
Pleadings
Applicant
Liability of First Respondent
The unstated implication of Mr Dixon’s allegations against Pro-Tect Security was that it had breached s.45 of the FW Act because it had contravened various provisions of the Award.
Background
Mr Dixon alleged that from 25 September 2018 until 11 September 2020 he had been employed by Pro-Tect Security as a casual security officer and that during the course of his employment:
(a)he worked at Tweed Mall on a regular and systematic basis;
(b)his duties varied over time but included and were not limited to:
(i)rostering;
(ii)creating and filling out Excel spread sheets;
(iii)data and entry logging;
(iv)completing incident reports;
(v)reviewing incident reports of other staff members;
(vi)co-ordination of the teams and working with a team;
(vii)equipment management;
(viii)car park monitoring;
(ix)securing and locking sites;
(x)onsite training of new staff;
(xi)monitoring and responding to electronic intrusion detection or access control equipment via visual display unit/ CCTV;
(xii)recording or reporting security incident matters on a computer-based system;
(xiii)acting as first contact for police;
(xiv)conducting frisk searches; and
(xv)from about 21 July 2019 onwards, supervising one to five employees each time that he worked.
2010 Award Entitlements
Mr Dixon alleged that while covered by the 2010 Award:
(a)cls.4.1 and 14.1 applied to him pursuant to ss.47 and 48 of the FW Act;
(b)he had been classified as a Security Officer Level 2; and
(c)he had been entitled to a 25% casual loading on top of the minimum hourly rate provided by the 2010 Award.
First Period of Underpayment
Mr Dixon alleged that 25 September 2018 and 30 June 2019, covered by the 2010 Award he had been entitled to:
(a)the minimum casual pay rate of $27.34 per hour;
(b)the casual overnight penalty pay rate of $32.08 per hour;
(c)the casual Saturday penalty pay rate of $38.27 per hour;
(d)the casual Sunday penalty pay rate of $49.21 per hour;
(e)the casual public holiday penalty pay rate of $60.14 per hour; and
(f)the casual first aid allowance of $5.75 per shift, up to a maximum of $28.57 per week.
Mr Dixon alleged that in the period from 25 September 2018 to 30 June 2019 he:
(a)worked for Pro-Tect Security in the capacity of security officer and was requested by it to act as a first-aider;
(b)had been paid by Pro-Tect Security a total amount of $16,482.95; and
(c)had been entitled to be paid $26,909.06 and so had suffered loss and damage of $10,426.11.
Second Period of Underpayment
Mr Dixon alleged that from 1 July 2019 and 17 June 2020 covered by the 2010 Award, he had been entitled to:
(a)the minimum casual pay rate of $28.16 per hour;
(b)the casual overnight penalty pay rate of $33.05 per hour;
(c)the casual Saturday penalty pay rate of $39.43 per hour;
(d)the casual Sunday penalty pay rate of $50.69 per hour;
(e)the casual public holiday penalty pay rate of $61.96 per hour;
(f)the casual first aid allowance of $5.92 per shift, up to a maximum of $29.43 per week; and
(g)from about 21 July 2019 to 17 June 2020, as a casual staff member supervising one to five employees, a supervision allowance of $0.97 per hour, up to a maximum of $36.74 per week.
Mr Dixon alleged that from 1 July 2019 to 17 June 2020 he:
(a)worked for Pro-Tect Security in the capacity of security officer and was requested by it to act as a first-aider and supervised up to 5 employees;
(b)had been paid by Pro-Tect Security a total amount of $34,276.42; and
(c)had been entitled to be paid amount of $48,504.23 and so had suffered loss and damage of $14,227.81.
2020 Award Entitlements
Mr Dixon alleged that while covered by the 2020 Award:
(a)cls.4.1 and 15.1 applied to him pursuant to ss.47 and 48 of the FW Act;
(b)he had been classified as a Security Officer Level 2;
(c)he had been entitled to a 25% casual loading on top of the minimum hourly rate provided by the 2020 Award pursuant to cl.11.2(a);
(d)he had been entitled to:
(i)the minimum casual pay rate of $28.16 per hour;
(ii)the casual overnight penalty pay rate of $33.05 per hour;
(iii)the casual Saturday penalty pay rate of $39.43 per hour;
(iv)the casual Sunday penalty pay rate of $50.69 per hour;
(v)the casual public holiday penalty pay rate of $61.96 per hour;
(vi)the casual first aid allowance of $5.92 per shift, up to a maximum of $29.43 per week; and
(e)as a casual staff member supervising one to five employees, he had been entitled to a supervision allowance of $36.74 per week.
Third Period of Underpayment
Mr Dixon alleged that from 18 June 2020 to 11 September 2020 he:
(a)worked for Pro-Tect Security as a security officer and was requested by it to act as a first-aider;
(b)had been paid by Pro-Tect Security a total amount of $7,261.56; and
(c)had been entitled to be paid $10,093.89 and so had suffered loss and damage of $2,832.33.
Liability of Second Respondent
Mr Dixon alleged that after 4 November 2019 Mr Sobh had been the sole director of Pro-Tect Security and had been knowingly concerned in or party to its contraventions of the FW Act and had thereby, by virtue of s.550 of the FW Act, himself contravened s.45 of that Act.
Liability of the Third Respondent
Mr Dixon alleged that Mr Moss had been the self-described owner and General Manager of Pro-Tect Security and had also been knowingly concerned in or party to its contraventions of the FW Act and had thereby, by virtue of s.550 of the FW Act, himself contravened s.45 of that Act.
Relief Sought
Mr Dixon sought declarations that each of the respondents had contravened s.45 of the FW Act.
He also sought orders that:
(a)the respondents pay him $27,486.25 plus interest pursuant to ss.545 and 547 of the FW Act;
(b)each of the respondents pay penalties for contravening s.45 of the FW Act; and
(c)the penalties be paid to him.
Second Respondent
Mr Sobh filed a response to the amended statement of claim in which he admitted that he had been the sole director of Pro-Tect Security from 4 November 2019 but alleged that he had subsequently sold it. He also admitted that Pro-Tect Security had employed Mr Dixon as a security officer from 18 June 2020 to 11 September 2020 but he denied that Mr Dixon had had any supervisory duties such as the co-ordination of the team, equipment management or supervising staff and denied the allegation that Pro-Tect Security had asked him to act as a first aider. Mr Sobh alleged that Mr Dixon had been a Level 1 employee under the 2020 Award and that his pay was properly calculated by reference to that classification. Mr Sobh also alleged that Mr Dixon’s claim that he had only been paid $34,276.42 in the period 1 July 2019 to 17 June 2020 did not take account of the JobKeeper payments he received.
Legislation & Award
Fair Work Act
The FW Act relevantly provides:
45 Contravening a modern award
A person must not contravene a term of a modern award.
…
550 Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Security Services Industry Award
The Award covered employees in the security industry throughout Australia: cl.4, 2010 Award; cl.4, 2020 Award.
Clause 14.1 of the 2010 Award and cl.15.1 of the 2020 Award prescribed the minimum rates of pay for employees covered by those Awards based on a 38 hour week, as prescribed by cl.21 of the 2010 Award and cl.13 of the 2020 Award. During Mr Dixon’s employment with Pro‑Tect Security those rates relevantly were:
25 September 2018 - 30 June 2019
1 July 2019 –
17 June 2020
18 June 2020
onwardsWeekly
Weekly
Weekly
Hourly
Security Officer Level 1
808.00
832.20
832.20
21.90
Security Officer Level 2
831.20
856.10
856.10
22.53
Clause 10.5 of the 2010 Award and cl.11.2 of the 2020 Award provided that casual employees were to be paid a loading of 25% in addition to the minimum hourly rate otherwise applicable under the respective awards.
Clause 22 of the 2010 Award provided for penalty rates relevantly as follows:
22. Penalty rates
22.1 In this clause a span refers to a period or periods as follows:
Span
Period
Day span
0600 hrs to 1800 hrs Monday to Friday (excluding hours on a day that is a public holiday)
Night span
0000 hrs to 0600 hrs and 1800 hrs to 2400 hrs throughout the period from 0000 hours Monday to 2400 hours Friday (excluding hours on a day that is a public holiday)
Saturday span
0000 hrs to 2400 hrs on a Saturday
Sunday span
0000 hrs to 2400 hrs on a Sunday
Public holiday span
0000 hrs to 2400 hrs on a public holiday
22.2Permanent night work means work performed during a night span over the whole period of a roster cycle in which more than two thirds of the employee’s ordinary shifts include ordinary hours between 0000 hrs and 0600 hrs.
22.3 Penalty rates
Penalty rates apply to ordinary hours worked as follows:
Hours worked during Penalty rate in addition to ordinary time rate %
Night span 21.7 Night span (Permanent night work)
30
Saturday span
50
Sunday span
100
Public holiday span
150
Clause 20 of the 2020 Award, in particular cl.20.2, provided to the same effect, albeit in different terms.
Clause 15 of the 2010 Award and cl.17 of the 2020 Award provided for the payment of allowances. They relevantly provided for the payment of a first aid allowance to an employee holding a Senior First Aid Certificate who was asked or nominated by the employer “to act as a first aider” (cl.15.4 and cl.17.2 ) and for payment of a supervision allowance to an employee who was required “to supervise other employees” (cl.15.7 and cl.17.5). At all times from 25 September 2018 to 17 June 2020 under the 2010 Award, the first aid and supervisor allowance rates were a variable figure calculated as a percentage against the “standard rate”, being the minimum weekly wage provided for under the 2010 Award as follows:
Allowance
% of standard rate
First aid – per shift
0.68
First aid – per week
3.38
Supervision – per week
1-5 employees
4.22
At all relevant times under the 2020 Award, the first aid and supervisor rates were fixed at flat rates as follows:
Allowance
$ Flat Rate
First aid – per shift
5.92
First aid – maximum per week
29.43
Supervision – per week
1-5 employees36.74
Schedule C to the 2010 Award relevantly provided in relation to job classifications:
Schedule C—Classifications
C.1 Security Officer Level 1
C.1.1 A Security Officer Level l:
(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.
C.1.2Indicative 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 site/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;
(f)provide safety induction to employees, contractors or visitors to the site; and
(g)control access to and exit from an airside security zone or landside security zone at an airport.
C.2 Security Officer Level 2
C.2.1 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.
C.2.2A 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;
(d)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;
(e)is responsible for assuring the quality of their own work; and
(f)is required to act as first response to security incidents/matters.
C.2.3Indicative 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 walk-through electromagnetic detectors; and/or monitor, interpret and act upon screen images using x-ray imaging and/or observation equipment, including in or in connection with airport security zones;
(f)operate a public weigh-bridge;
(g)record and/or report security incidents or matters on a computer based system;
(h)control a dog used to assist the security officer to carry out the duties of watching, guarding or protecting persons, premises or property; and
(i)conduct frisk searches of persons and screening using explosive trace detection including in or in connection with airport security zones.
…
The equivalent part of the 2020 Award, sch.A, was not materially different.
Applicant’s Evidence
Jai Dixon
Offer of Employment
Mr Dixon deposed that following a job application process during which he had discussions with a Natasha Manning from Pro-Tect Security, Mr Moss emailed him a letter of offer dated 3 September 2018. The letter, an unsigned copy of which was annexed to Mr Dixon’s affidavit in chief, read in part:
…
On behalf of Pro-Tect Security Management, I have pleasure in offering you employment as detailed below and in accordance with the terms and conditions outlined in this letter and in any Pro-Tect Security issued position documentation from time to time as required.
Position Casual Security Officer
Tweed Mall/ Meriton Southport
Position and Term of Contract - You shall be employed in the position noted above on a casual basis.
You will report to Natasha Manning and your starting date is Thursday 6th September.
…
3. REMUNERATION
A casual hourly rate of $21.00 per hour will be paid and $32.00 per hour on Public Holidays, which is taken to be inclusive of any annual or sick leave entitlements. In addition, Superannuation will be paid. …
4. HOURS OF WORK
As a casual employee, you will be required to work in accordance with the hours of work specified in the applicable job description assigned by your supervisor.
…
The letter described Mr Moss as Pro-Tect’s general manager. Mr Dixon’s evidence was that as Ms Manning and other employees of the company regularly referred to Mr Moss as “the boss”, as far as he knew Mr Moss was the owner of Pro-Tect Security.
Mr Dixon deposed that he started work at the Tweed Mall with Pro-Tect Security on
25 September 2018. His evidence was that, from a conversation with Ms Manning in August 2018, he understood that Pro-Tect Security provided security services for regional sites under subcontracting arrangements with a larger security company named Southern Cross. Mr Dixon deposed that Southern Cross held the security contract for Tweed Mall and that Mr Moss was subcontracted to provide its security officers. Mr Dixon’s evidence was that he was initially provided his work rosters by Mr Dawson, the supervisor employed by Southern Cross, and had also had “dealings” with the Southern Cross Acting Area Manager, Mr Bradley.
Initial Employment Duties
Mr Dixon deposed that from the beginning of his employment until he became a supervisor in about July 2019, his hours were irregular and he worked between 10 and 35 hours per week, variously on day and night shifts. He deposed that at the start of his employment his duties included:
(a)data and entry logging;
(b)completing incident reports;
(c)car park monitoring;
(d)securing and locking sites;
(e)monitoring and responding to electronic intrusion detection or access control equipment via visual display unit/ CCTV;
(f)recording or reporting security incident matters on a computer-based system; and
(g)conducting frisk searches.
Mr Dixon deposed that Pro-Tect Security had initially paid him a flat rate of $21 an hour, then $21.50 an hour and finally $23 an hour. A copy of a 15 January 2019 payslip that reflected the initial pay rate and a copy of a copy of a 7 November 2019 payslip that reflected the second pay rate were annexed to his affidavit in chief. Mr Dixon also deposed that his work on public holidays was paid at $32 an hour throughout his employment with Pro-tect Security.
Promotion to Supervisor
Mr Dixon deposed that in mid-July 2019 he was approached by Mr Moss and Mr Bradley, Southern Cross’s acting area manager, who said words the following effect:
Mr Bradley: We're not happy with [Mr Dawson]'s performance and want you to be the Supervisor. [Mr Dawson] wants to keep working for now, so we'll let him go slowly.
…
Mr Moss: You’ll be doing the rosters from now on so phase him out slowly.
Mr Dixon’s evidence was that on 16 July 2019 Mr Bradley sent him a text message regarding an increase in his pay to reflect a supervisor role. It included the following statement:
… I have sent off a request to have your pay reviewed and increased for a supervisor role. Im not sure what the rate will be. Head office asked if you were directly hired, if this has potential for your pay to increase it could be a smart move to go direct …
Mr Dixon deposed that he was not given anything in writing to document his promotion to supervisor but Mr Moss said that it was to commence on 21 July 2019 and told him:
… you'll be taking over the supervisor role and one of your main duties will be to manage the roster.
Employment in Supervisor role
Mr Dixon deposed that on 21 July 2019 he began working in a supervisor capacity at Tweed Mall and was responsible for three other security officers working at the site. His evidence was that he took on the following duties in addition to those of his security officer role:
(a)rostering;
(b)creating and filling out Excel spread sheets;
(c)reviewing incident reports of other staff members;
(d)co-ordination of the team;
(e)equipment management;
(f)onsite training of new staff;
(g)supervising staff; and
(h)acting as first contact for police and staff.
He described his increased responsibilities in the following terms:
… During my employment at Pro-Tect, there were three security officers employed by Pro-Tect to work at the Tweed Heads Mall. I was responsible for supervising these three security officers. As their Supervisor, I received regular calls from them with queries regarding their roster and their duties on shift. Due to the high turnover of guards employed at Tweed Head Mall, I was constantly managing new guards who had questions about their day-to-day tasks. I would receive these calls when I was not rostered on shift and manage their queries in my own time. The queries I received from the guards included things such as how to set up stalls as requested by centre management, how to manage the ‘banned persons’ list and questions about the roster. Most of the time I would manage the roster whilst I was on my rostered shift. However, if there was an urgent change to the roster or staff availabilities changed, I would manage these rostering issues in my own time.
…
… After my promotion to Supervisor at Pro-Tect in mid-July 2019, I was responsible for the security officers hired by Pro-Tect who worked at Tweed Head [sic] Mall. I provided both onsite and off-site supervision of the guards as described … above. The off-site supervision duties that I had, included but were not limited to planning rosters, providing training, being on call for the guards and reviewing incident reports made by the other security officers at Tweed Mall.
Mr Dixon’s evidence was that from the time he became supervisor, he worked consistent hours from 8am to 3pm on Monday to Fridays although he often also worked additional hours to fill gaps in the roster due to a lack of security officers.
Mr Dixon’s evidence was that he did not receive the pay increase mentioned in Mr Bradley’s 16 July 2019 text message until around October 2019 when his pay was increased to a flat $21.50 per hour. He deposed that his final wage increase to a flat $23.00 per hour occurred on about 24 February 2020.
Wage Complaints
Mr Dixon’s evidence was that a spreadsheet annexed to his affidavit reflected the hours he worked throughout his employment, based on information taken from his work rosters and payslips.
Mr Dixon deposed that there were several occasions where he had to chase up his pay as he had been not paid the higher rate for working on a public holiday. For example, when he had been not paid the proper rate for working the public holiday in June 2019, he had a text conversation with Mr Moss on 19 June 2019 as follows:
…
Mr Dixon: Hi Steve do we get public holiday rates at the Mall?
Mr Moss: Yes mate 32.00 and I forgot to pay it and bill for it, I’ll will fit it up the short fall next fortnight 8f [sic] that's ok
…
Mr Dixon deposed that while supervisor, he had difficulties in filling the roster as low pay rates meant that Pro-Tect Security had poor staff retention. He complained to Mr Moss who said:
You need to try and get the General Manager of the Mall to give Pro-Tect the contract directly so that we can pay you the minimum wage.
Also, annexed to Mr Dixon’s affidavit in chief was a copy of an email that the Southern Cross area manager, Rosemarie Foster, sent to Ashley Johnson, Southern Cross operations manager, and Steve Grace, Southern Cross state manager, on 13 December 2019 which read in part:
Hi Guys,
I had a call from [the centre manager] this morning who is unhappy with the Guards we are sending to cover shifts when the permanent ones need a break. He also mention that the rates that he feels the guards are unfairly paid.
Can you see that this attend to this matter.
Later that day Ms Johnson wrote to Ms Manning, and apparently Mr Sobh, copied to Ms Foster and Mr Grace, saying:
Hi Natasha,
Please see the feedback given in relation with Tweed site. If you can please speak to the team at Tweed in relation to the rates and payment as they have spoken with our client about the issues.
Ash
Mr Dixon’s evidence was that the same day Mr Moss responded on behalf of Pro-Tect Security copied to Ms Manning, Ms Foster, Mr Grace and apparently Mr Sobh, saying:
Good afternoon Ashley
As per our discussion this afternoon in response to the below I spoke with our site supervisor and it appears the recent two guards that left Tweed Mall was due to working for a flat rate of $21.00 per hour.
When you add 20% on cost our total Guard cost is $25.50phr and we bill SCGS $27.00phr leaves us with minimal profit margin of $1.80 per hour and at the existing charge rate there is no way of offering guards any increase …
Mr Dixon annexed to his affidavit a copy of a text message from Mr Moss dated 31 December 2019 which read in part:
… can you suggest to [the centre manager] to maybe give us the contract direct so we can pay you guys properly ... if he knows your loyal to us and doesn't want to lose you guys should entice him
Mr Dixon annexed to his affidavit a copy of a text message conversation with Mr Moss on
23 April 2020 which read as follows:
Mr Dixon: Hey Steve I thought public holiday was time and a half
Mr Moss: 32 per hr as always has been
…
Mr Dixon annexed to his affidavit a copy of a text message sent to Mr Moss dated 31 July 2020 which read as follows:
Mr Dixon: Hi Steve there has been no increase to my pay as of yet on my pay slips
Mr Dixon annexed to his affidavit a copy of a 10 August 2020 text message conversation with “Rob”, Pro-Tect Security’s operations manager, which read as follows:
Rob: Morning Jai, Chris can only work Mon-Thurs for the next few weeks so the weekends will have to be split between yourself Jayson & Nic. You know the guys better than me, you have any suggestions?
Mr Dixon: Yea hi mate, yes Chris has let me know last week about this and I will be contacting Steve sometime this week and looking at replacing Jayson Hall here at the mall and finding a suitable replacement as I told Steve a few weeks back that I will not be working weekend regularly (I don't mind filling in if guards can't make it) as we are given no incentive to work the weekends with no increase for weekend rates.
Mr Dixon deposed that on many occasions throughout his employment he made complaints to Mr Moss, but not to Mr Sobh, about being underpaid and that Mr Moss responded to the effect that he would try to secure the Tweed Mall security contract directly in order to pay
Mr Dixon higher wages.
Jobkeeper Payments
Mr Dixon’s evidence was that from 20 April 2020 until the end of his employment in September 2020 he received JobKeeper payments. The amounts he received made up the difference between the gross amount he earned per fortnight and his JobKeeper entitlement ceiling of $1,500.
Termination of Employment
Mr Dixon annexed to his affidavit a 16 August 2020 email to Mr Moss and Ms Foster which read in part as follows:
Hi Both Steve and Rosie,
I have some concerns moving forward … Here at Tweed Mall we are paid under the award wage with no weekend rates… We have lost a lot of guards within the last 6-8 months here at the site mostly due to being underpaid and … I am expected to work weekends and sometimes up to 7 day weeks … when guards leave. When this occurs and I work a 7 day week for multiple weeks at a time it just does not reflect it in my payslip at the end of the fortnightly pay period.
While being under the award wage my Super therefore is not being calculated correctly resulting to a lower Super fund which there is no incentive to stay at the site long term either. …
We are classed as a "Level Two Security Officer" and at a casual rate we should be receiving a minimum of ($28.16 an hour) and that's not including first Aid allowance of ($5.92 per shift up to 529.43 per Week) or night rates. So i put it to you guys, If I am not under award wage/hourly rate by next pay period on 27.08.2020 (Which is roughly two weeks notice) I will be leaving and handing in my resignation letter in. I know the tender is up at the end of the year and it would not look good to have no guards and no supervisor here at the jobsite at the end of the year. I will be waiting for a written response to this email. Regards Jai Dixon.
Mr Dixon deposed that he resigned from Pro-Tect Security before his stipulated deadline of
27 August 2020 and that his last day of employment had been 11 September 2020.
Respondent’s Evidence
Mr Sobh deposed that on 4 November 2019 he purchased and became director of Pro-Tect Security, which was a subcontractor for a number of different security companies including Southern Cross Group, for whom it subcontracted at the Tweed Mall site. He said that he had worked in the security industry for 20 years and knew the Award’s rates. Mr Sobh deposed that on 23 March 2022 he sold Pro-Tect Security to a third party.
Mr Dixon’s Employment
Mr Sobh’s evidence was that he was aware when he purchased Pro-Tect Security that it had employed Mr Dixon since 5 September 2018 as a casual level 1 security officer at the Tweed Mall site. His evidence was that the roster and positions of Protect-Security’s employees including, relevantly, Mr Dixon did not change upon him taking control of the company. When shown the 7 November 2019 payslip that was annexed to Mr Dixon’s affidavit, Mr Sobh said that it reflected the pay rate for a Security Officer Level 1. Mr Sobh said that Mr Dixon’s role involved:
(a)providing basic crowd control functions;
(b)monitoring and guarding the different businesses of Tweed Mall;
(c)responding to basic fire or security alarms;
(d)drafting incident reports;
(e)locking and unlocking of Mall doors; and
(f)checking emergency exits and patrolling carpark.
Mr Sobh’s evidence was that the Pro-Tect security officers at the Tweed Mall had to move around because they were patrolling the whole shopping centre and its car park. He said that their job was to be on the ground and not watching CCTV screens.
First aider
Mr Sobh said that the building manager was the first responder for first aid matters which meant that Pro-Tect would not be paid for responding to such matters.
Lack of Supervisor role
Mr Sobh deposed that Pro-Tect Security’s contract for Tweed Mall involved a “rotating roster of one guard every 8 hours” and that Pro-Tect Security never rostered more than one guard at Tweed Mall. His evidence was that a supervisor role could not be undertaken at the Tweed Mall site as there are no other security officers to supervise during Mr Dixon’s rostered hours. Mr Sobh’s evidence was that there was no signed contract or letter of variation which stated that Mr Dixon was a supervisor and neither he nor any of his staff had ever “confirmed” that Mr Dixon was to take on a supervisor role at Tweed Mall.
Underpayments issue
Mr Sobh’s evidence was that Mr Dixon did not raise an underpayment issue with him while he was director of Pro-Tect Security. Mr Dixon did approach him for a pay rise which he agreed to, but Mr Dixon never said that his new pay rate was wrong.
Mr Sobh’s evidence was that after Mr Dixon’s resignation on 11 September 2020, he had been contacted by the Fair Work Commission (“FWC”) in relation to a complaint by Mr Dixon about underpayment of wages. His evidence was that following this complaint he directed the payroll manager to undertake a review Mr Dixon’s wage payments which found that, based on wage rates for level 1 guards under the Award, he had been underpaid $2,958.39. He agreed that Mr Dixon had not been paid the casual loading.
Consideration
Issues
In his written submissions Mr Dixon identified the following as the issues for resolution at this stage of the proceeding:
(a)whether he had been entitled to be paid as a Security Officer Level 2;
(b)the applicable minimum rate of pay under the Award for ordinary hours of work including casual loading;
(c)the applicable penalties to be paid to him for working evening shifts, weekends and public holidays;
(d)whether he had been entitled to be paid a supervision allowance;
(e)whether he had been entitled to be paid a first aid allowance; and
(f)the accessorial liability of Mr Sobh and of Mr Moss, if any.
Credit
The cross-examination of Mr Dixon and Mr Sobh did not identify significant shortcomings in their accounts. Except where the contrary is apparent in these reasons, I accept their evidence.
Application for default judgments
Neither Pro-Tect Security nor Mr Moss filed a response or appeared at the trial. Mr Dixon sought default judgment against them. The Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021 relevantly provide:
13.04 When a party is in default
…
(2)For the purposes of rule 13.05, a respondent is in default if the respondent:
(a) has not satisfied the applicant’s claim; and
(b) fails to:
(i)give an address for service before the time for the respondent to give an address has expired; or
(ii)file a response before the time for the respondent to file a response has expired; or
…
13.05 Orders on default
…
(2) If a respondent is in default, the Court may:
…
(c)if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant; or
(d) give judgment or make any other order against the respondent; or
…
(6)The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
13.06 Default of appearance of a party
(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
…
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just.
As the trial has proceeded as against Mr Sobh, whose alleged liability depends on findings of contravention being made against Pro-Tect Security, and as the alleged liability of Mr Moss also depends on such a finding, I conclude that the appropriate course is to decline to decide the absent parties’ cases under r.13.05(c) but to do so under r.13.05(d), having conducted a trial in their absence as permitted by r.13.06(1)(e).
Classification
The principal element of Mr Dixon’s case was that he had been paid as a Security Officer
Level 1 whereas his proper classification had been Security Officer Level 2 which was a role paid at a higher rate.
The two classifications are defined and described in similar terms but they are distinguished by differing degrees of complexity and responsibility. In particular, a Security Officer Level 2 “works from complex instructions and procedures”, “co-ordinates work in a team environment” and “is required to act as first response to security incidents/matters”, whereas a Security Officer Level 1 exercises limited discretion and has no decision-making duties. It is expected that a Security Officer Level 2 may be called on to undertake security tasks associated with ATMs whereas the equivalent responsibility of a Security Officer Level 1 is to “watch, guard or protect persons and/or premises and/or property at sites/locations where the complex use of computer technology is not required”. A Security Officer Level 2 may be called on to perform crowd control functions but a Security Officer Level 1 may be called on to perform “basic” crowd control. In circumstances where there was usually only one security officer on duty, the likelihood of any crowd control at the Tweed Mall being more than “basic’ seems remote.
It was not disputed that, apart from an occasional special event, a single guard would be rostered at a particular time, which indicates that there was otherwise no team environment in which Mr Dixon might be called on to co-ordinate work. Similarly, referring to the tasks the Award identified as indicative of a Security Officer Level 2’s duties, the evidence does not support a conclusion that Mr Dixon was expected to:
(a)patrol in a vehicle two or more separate establishments or sites;
(b)monitor and respond to electronic intrusion detection or access control equipment terminating at a visual display unit and/or computerised printout;
(c)monitor and act upon walk-through electromagnetic detectors; and/or monitor, interpret and act upon screen images using x-ray imaging and/or observation equipment;
(d)operate a public weigh-bridge;
(e)record and/or report security incidents or matters on a computer based system;
(f)control a dog used to assist in carrying out the duties of watching, guarding or protecting persons, premises or property; or
(g)conduct frisk searches of persons and screening using explosive trace detection.
I note Mr Dixon’s evidence that he had conducted at least one frisk search but it is questionable whether that was lawful, albeit its circumstances were not explained. Mr Sobh’s evidence was to the effect that Mr Dixon did not have authority to conduct frisk searches.
I also note that Mr Dixon deposed that from the start of his employment his duties included data and entry logging, monitoring and responding to electronic intrusion detection or access control equipment via visual display unit/ CCTV, and recording or reporting security incident matters on a computer-based system. However, he gave no examples of such work and, given that Pro-Tect Security’s employees generally worked alone, I infer that their principal duty was patrolling on foot and static observation and that any other tasks were incidental to those functions. I am not persuaded that the technical tasks to which Mr Dixon referred were a sufficiently large part of his duties or, in any event, complex in their requirements such that his role was, on their account, properly classified as Security Officer Level 2.
I appreciate that in some respects the additional tasks Mr Dixon deposes he performed from July 2019 echo the duties of a Security Officer Level 2 but find that they also do not, overall, reflect the complexity and level of responsibility associated with the Security Officer Level 2 role. I recognise that Mr Dixon was consulted about and involved in staffing and rostering arrangements, but that is not surprising since he was a comparatively long-term and apparently committed employee, and would himself be affected by roster changes and employee absences. In any event, such activities are not found in the Award’s description of a Security Officer Level 2’s duties.
I am not persuaded that the duties that Mr Dixon performed when employed by Pro-Tect Security fell within the Award’s Security Officer Level 2 classification.
Allowances
Supervision
The spreadsheet recording his working hours that Mr Dixon annexed to his affidavit in chief reveals that his hours became longer and more regular after his conversation with Mr Moss and Mr Bradley in July 2019 in which they said that he was to become a supervisor. His evidence was that, from that point, he had a role in managing the rostering of security officers at Tweed Mall. However, those matters are insufficient to attract the supervision allowance.
As noted earlier, the Award provides an allowance for employees who are required to “supervise other employees”. The Macquarie Dictionary (online) defines “supervise” as:
to oversee (a process, work, workers, etc.) during execution or performance; superintend; have the oversight and direction of
Notwithstanding the conversation with Mr Moss and Mr Bradley in July 2019, Mr Dixon did not suggest that he thereafter oversaw the execution or performance of other security officers’ work, which is not surprising as he would have been working alone most of the time. That he was asked questions by less experienced security officers was a case of assisting in the provision of on-the-job training or general teamwork, rather than of supervision. His involvement in rostering issues did not amount to supervision as it was a matter of administration and resource allocation, not oversight of other employees’ work.
I find that Mr Dixon did not qualify for payment of the supervision allowance.
First aider
The Award provides for the payment of an allowance to an employee, who is the holder of a Senior First Aid Certificate, who is requested or nominated by the employer to act as a first aider. No evidence was adduced which showed that Pro-Tect Security had made such a request of Mr Dixon. As part of his recruitment process, it did ask for proof that he held a first aid certificate but nothing more has been evidenced. Although Mr Dixon may have reasonably anticipated that the skills reflected in his first aid qualification, which I accept he had on the basis that it was a precondition to the grant of his Security Industry Licence, may have been called on from time to time, that is insufficient to engage the allowance. What was required was a request from Pro-Tect Security or a nomination by it that Mr Dixon act as a “first aider”. There was no evidence of that in Mr Dixon’s case. Further, the implication to be drawn from Mr Sobh’s evidence on the question is that as Pro-Tect Security would not be paid for attending to first aid matters, it did not nominate or request any of its employees to act as first aiders.
I find that Mr Dixon did not qualify for payment of the first aid allowance.
Special rates
Casual loading
Mr Sobh’s evidence was that Mr Dixon had been employed as a casual and had not been paid the casual loading. Each occasion when Pro-Tect Security failed to pay Mr Dixon his casual loading entitlement when it should have been paid was a breach of cl.10.5 of the 2010 Award or cl.11.2 of the 2020 Award and a contravention of s.45 of the FW Act. Mr Dixon is entitled to compensation for those underpayments of his fortnightly pay calculated in accordance with the Award’s provisions from time to time.
Penalty rates
Mr Dixon’s spreadsheet of the hours he worked records that from time to time he worked on weekends and on public holidays. I accept that his pay was not calculated by reference to the applicable penalty rates and note that although his weekend work pay rate was $32 per hour, that was insufficient to acquit Pro-Tect Security’s pay obligations to him for work on Sundays and public holidays as well as its pay obligations to him for work on Saturdays once ordinary time pay rose to $21.50 per hour.
Mr Dixon’s spreadsheet of his hours worked also records that from time to time he worked after 6pm. Accepting as I do that his pay was not calculated by reference to any applicable penalty rate, I find that his flat ordinary time rate was insufficient to acquit Pro-Tect Security’s pay obligations to him for work after 6pm.
Each occasion when Pro-Tect Security failed to pay Mr Dixon his penalty rate entitlements when they should have been paid was a breach of cl.22.3 of the 2010 Award or cl.20.2 of the 2020 Award and a contravention of s.45 of the FW Act. Mr Dixon is entitled to compensation for those underpayments of his fortnightly pay calculated in accordance with the Award’s provisions from time to time.
Accessories
Before addressing the question whether Mr Sobh or Mr Moss were accessories to Pro-Tect Security’s contraventions, it should be reiterated that Pro-Tect Security’s failure was to pay
Mr Dixon what he was owed on each occasion when he was underpaid. It is on each of those occasions that a contravention of the Award and the FW Act occurred. That being so, Mr Sobh and Mr Moss could only be liable as accessories for breaches that occurred when they were managing the company; they could not have been accessories to acts with which they could not have been involved. The fact that the underpayments accrued over time such that they reached their apogee during Mr Sobh’s ownership of Pro-Tect management did not make him liable as an accessory for contraventions occurring before his ownership and with which he could have had no connection. Any failure to pay accrued, overdue entitlements was not a new or separate contravention.
Mr Sobh
Mr Sobh said that when he took over the company he simply continued the pays that Mr Moss had paid and they were looked after by “payroll”. Mr Dixon said that he had never raised questions of his pay with Mr Sobh, although Mr Sobh said that Mr Dixon had done so on one occasion following which his pay was reviewed and increased. Following Mr Dixon’s complaint to the FWC, Mr Sobh caused a review of Mr Dixon’s pay to be reconciled against his award entitlements when it was identified that he had not been paid casual loading. At that point Mr Sobh was aware that Mr Dixon had been underpaid at least to that extent.
Although I accept that Mr Sobh was aware of the Award and had a managerial role at Pro-Tect Security once he had bought the company, the evidence does not go so far as to indicate what that role involved apart from high-level direction. Relevantly, apart from one pay rise and the investigation that followed Mr Dixon’s complaint to the FWC, there is no evidence that
Mr Sobh had any involvement at all in issues concerning Mr Dixon’s remuneration. I am not persuaded that Mr Sobh was knowingly concerned in or party to Pro-Tect Security’s contraventions.
However, Mr Sobh has indicated in his written submissions that he “accepts liability” for underpayment of Mr Dixon during the time when he owned Pro-Tect Security which, as he has only conceded the failure to pay the casual loading, can be taken to be a reference to that. Even so, he did not admit to having been an accessory to the company’s contraventions in failing to pay that loading.
No party adverted to the relevance of s.545(1) of the FW Act to Mr Sobh’s concession. Further submissions on that issue are necessary.
Mr Moss
As was also the case with Mr Sobh, the allegation that Mr Moss was knowingly concerned in Pro-Tect Security’s contraventions is a serious matter which, if proved, might expose him to pecuniary sanction in the form of a civil penalty. Before finding the allegation proved, I must be satisfied of his involvement by reference to the considerations prescribed by s.140(2) of the Evidence Act 1995 (Cth). Section 140 provides:
140 Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The duration of Mr Moss’s involvement with Pro-Tect Security is unclear and it seems that he left that business at some point before Mr Dixon did. It is also not clear what his role was. It appears that he was the owner before Mr Sobh bought the company and something like the operations manager after that transaction but the detail of his duties and responsibilities is a matter of speculation.
Given the paucity of evidence concerning Mr Moss’s role in Mr Dixon’s underpayments and having regard to s.140(2) and the authorities that inform it, I am not persuaded that Mr Moss was knowingly concerned in those contraventions, notwithstanding that he was aware of at least something when he said to Mr Dixon:
You need to try and get the General Manager of the Mall to give Pro-Tect the contract directly so that we can pay you the minimum wage.
It should be noted that Mr Dixon does not allege that he was not paid the minimum ordinary time rate that I have found to have been applicable to him. Further, Mr Moss’s knowledge of the Award and its applicability to Mr Dixon was a matter on which, through lack of evidence on the subject, no finding could be made although it was a precondition to the liability alleged against him: Fair Work Ombudsman v Raying Holding Pty Ltd (No 2) (2017) 324 FLR 289 at 311 - 315 [99]-[111].
It is also to be noted that the statement of claim provided no particulars of Mr Dixon’s allegations that Mr Moss had been knowingly concerned in Pro-Tect Security’s proved contraventions and did not allege that Mr Moss had been aware of the existence of the Award and that it applied to Mr Dixon: Fair Work Ombudsman v Raying Holding at 314 - 315 [109]. I observe that, in those circumstances, I would not have ordered default judgment against him.
The claim against Mr Moss will therefore be dismissed.
Conclusion
For the reasons I have expressed, I find that Pro-Tect Security breached cls.10.5 and 22.3 of the 2010 Award and cls.11.2 and 20.2 of the 2020 Award on the various occasions when it should have paid Mr Dixon his relevant entitlements in full but did not. I further find that each of those breaches was a contravention of s.45 of the FW Act.
Attached to Mr Dixon’s written submissions and supplemented at the trial by additional pages, was a spreadsheet detailing:
(a)the hours he worked for Pro-Tect Security;
(b)the Security Officer Level 2 minimum ordinary time pay rate for those hours including casual loading;
(c)amounts for the first aid allowance; and
(d)amounts for the supervision allowance for those hours worked after 21 July 2019.
However, those calculations have been overtaken by the foregoing reasons. An updated version of that spreadsheet, reflecting these reasons, will need to be filed.
The application as against Pro-Tect Security will stand over to a future date for directions as to the future conduct of the matter.
The application as against Mr Sobh will stand over to a future date for directions as to further submissions on his offer to make a payment to Mr Dixon.
As against Mr Moss, the application will be dismissed.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 18 October 2022
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