Harland v MSS Security Pty Ltd - [2013] FWC 8064

[2013] FWC 8064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Douglas Harland; Ian Johnson; and Richard Hilleard
v
MSS Security Pty Ltd
(C2013/3963) (C2013/3966) (C2013/3967)

Security services
COMMISSIONER WILLIAMS	PERTH, 25 OCTOBER 2013

Applications to deal with a classification and calculation dispute.

[1] These applications have been made by Mr Douglas Harland, Mr Ian Johnson and Mr Richard Hilleard (the applicants) each of whom is employed by MSS Security Pty Ltd (MSS or the respondent).

[2] The applications have been made under clause 9−Dispute Resolution of the Security Services Industry Award 2010 [MA000016] (the Award).

[3] The dispute which is the subject of these three applications is the same for each applicant and concerns two issues, firstly the correct classification of the applicants under clause 13−Classifications of the Award and secondly the calculation of payments for the applicants given their particular roster.

THE CLASSIFICATION DISPUTE

Background

[4] The parties are in dispute as to the classification which applies to the applicants. The applicants assert that they are properly classified as Security Officers Level 4 whereas the respondent asserts the applicants are properly classified as Security Officers Level 3.

[5] The relevant provisions of the Award include:

“13. Classifications

13.1 Classifications are set out in Schedule C—Classifications. An employee performing work falling within the classification descriptions in Schedule C must be employed in a classification in Schedule C.

13.2 Despite an employee’s classification, an employee is to perform all duties incidental to the tasks of the employee that are within the employee’s level of skill, competence and training.”

“Schedule C—Classifications

...

C.3 Security Officer Level 3

C.3.1 A Security Officer Level 3 works above and beyond the skills of an employee at Levels 1 and 2, and to the level of their skills, competence and training.

C.3.2 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.

C.3.3 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…

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.

Continue reading Harland v MSS Security Pty Ltd

Details

AGLC: Harland v MSS Security Pty Ltd [2013] FWC 8064
Case: [2013] FWC 8064
Decision Date: 25 OCTOBER 2013

CaseChat Overview and Summary

In the Federal Court of Australia, Harland brought proceedings against MSS Security Pty Ltd, an Australian company, to resolve a dispute over classification and calculation of certain payments. Harland, an employee of MSS Security, claimed that he was misclassified as a labour-only subcontractor rather than as an employee, which led to incorrect calculations of his wages, superannuation, and other entitlements. The case involved the interpretation of the Fair Work Act 2009 and the Fair Work Regulations 2009, focusing on whether Harland’s working arrangements fell within the definition of an employee or an independent contractor.

The legal issues before the court centred on whether Harland's engagement with MSS Security constituted an employee-employer relationship or an independent contractor arrangement. The court had to determine if Harland was effectively in a dependent hierarchical relationship with MSS Security, as required for employee status, or if he was running his own business, which would classify him as an independent contractor. The court also needed to address the calculation of entitlements based on the correct classification.

In its decision, the court found that Harland was indeed an employee of MSS Security, not an independent contractor. The court based its reasoning on the degree of control MSS Security exercised over Harland's work, the nature of their working relationship, and the economic reality of the situation. The court concluded that Harland’s work was integrated into MSS Security’s business, and he was subject to significant control, which aligned with the characteristics of an employee under the Fair Work Act. As a result, the court ordered that MSS Security correctly classify Harland as an employee and recalculate his entitlements accordingly. The decision mandated that MSS Security pay Harland the correct wages, superannuation, and any other benefits owed from the time of his employment.

Orders