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 site; and

(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.

C.3.4 A Security Officer Level 3 may be required to perform the duties of Security Officers at Levels 1 and 2 provided that such duties are not designed to promote deskilling.

C.4 Security Officer Level 4

C.4.1 A Security Officer Level 4 works above and beyond an employee at Levels 1, 2 and 3, and to the level of their skills, competence and training.

C.4.2 A Security Officer Level 4:

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

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

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

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

(e) exercises high level interpersonal and communications skills.

C.4.3 Indicative of the tasks which an employee at this level may be required to perform are the following:

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

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

(c) the co-ordinating, monitoring or recording of the activities of security officers utilising a verbal or computer based communications system within a central station including in or in connection with an airport security zone.

C.4.4 A Security Officer Level 4 may be required to perform the duties of security officers at Levels 1, 2 and 3 provided that such duties are not designed to promote deskilling.”

[6] The applicants are engaged as full-time employees by MSS to work at the Tronox site at Kwinana south of Perth, Western Australia. At the Tronox site a single security officer is rostered on shift at all times.

[7] The rostered security officer is stationed at the front gatehouse to the site.

[8] There is little dispute as to the duties and responsibilities of the applicants. These are documented in considerable detail in the Site Standing Orders 1 and were detailed by the applicants separately in their submissions which relevantly are set out below2.

“PRESENT DUTIES: Tronox Pigment plant Kwinana

1. Programming electronic security proximity swipe cards with personal information and zone parameters for locking and unlocking doors and adding/resizing of digital photographs

Adding names to photo’s. Making and altering parameters of cards occurs on a daily basis.

2. Monitoring fire alarm panels- Acknowledging, Responding to and resetting alarms. Recording of outcome of investigation to alarm register.

3. Execute multiple computerised reports for Tronox managers.

4. Communication Controller during emergencies, we are responsible for:

n the head count

n Programming the computer with information regarding the emergency

n notifying and communicating with outside industries regarding the emergency

n Liaising with the refuge marshals’ and management on various aspects of the emergency.

n Mustering the emergency response team.

n Organising emergency vehicles as required.

n Compiling all data of the incident & forwarding it to the safety department

n Administering Occupational First Aid if arisen from incident

n Use an electronic recording device during an emergency.

5. Emergency siren alarm testing.

6. Instruct in the use of personal respirators, full face respirators and the Duram escape mask.

7. Weighbridge duties. We monitor a CCTV connected to a weighbridge reacting to a light and buzzer, we then enter data on a computer to record the information (WDMS).

8. Vehicle checks.

9. Security Patrols – full check of admin offices/toilets, full perimeter/site patrol and check of contractor’s yard and we also have to do a Pre-Start check of the patrol vehicle each day that consists of  checking  coolant/oil levels, headlights, steering, brakes, gauges  and other minor jobs.

10. Filling and pressure testing of SCBA cylinders which are used during emergencies and confined space entry work.

11. The First Aid site requirement is now Occupational First Aid, we are the main first aiders onsite and deal with all first aid incidents on a regular basis, our duties also include:

n Dispensing of restricted medications (OFA TRAINED HIGHER THAN FIRST AID)

n Raising personal injury reports

n Conducting equipment checks on oxygen cylinders, oxy vivas /socks

12. Conduct visitor inductions & when required – General site inductions.

13. Weekly audits and reordering of either:

n Ambulance equipment

n Keys

First Aid room medications and equipment

14. Raising computerised work orders.

15. We are also trained & Australia wide certified to conduct Drug and Alcohol testing of staff along with organising their return to work testing schedule.

16. Operate exchange phone as we have all Administrative calls diverted to us for a minimum of 5hrs of our 12hr shift. (06:00–08:30,12:00–13:00,16:30–18:00)

17. Process all visitors & couriers & weigh the trucks for Kwinana Chlor Alkali, which is a chemical plant within Tiwest site perimeter.We react to CCTV, lights and buzzers when trucks drive onto weighbridge. Enter data on to computer.

18. Washing emergency response vehicle once a week.

19. Issue temp passes and stickers for vehicles on site

20. Distributing and filing forms for vehicle entry to site. 

21. In charge of issuing keys and key log.

22. Filing of material release forms.

23. Compiling data and forms for end of month then file them.

24. Two times a day radio checks with multiple companies.

25. Logging of daily confined space registry.

26. Issuing of taxi vouchers and logging details.

27. Sale of news papers and collecting money. Count money at end of day and hand over to client.

28. Handing out of milk and rotating milk fridge daily.

29. Use of central communication PA system.

30. Compile a stores report daily.

31. Logging of visitors and filing of paper work daily.

32. We control access to three sites from the one gatehouse.

Tronox, Kwinana Chlor Alkalai and Cohgen Eletricity Plant.

33. Kima Emergency Radio checks. Make a call over the radio to Various sites to check there signal. Make notes of signal strength

Then file paper work away or hand to appropriate personnel.

34. Contact multiple businesses’ to inform them of alarm test on certain days and times.”

The applicants’ submissions

[9] The applicants have identified a number of their duties and responsibilities which they submit are beyond those prescribed for a Security Officer Level 3 and which are covered by the classification of Security Officer Level 4.

[10] These are that:

• They work constantly by themselves with limited or no supervision.



• They train relief officers regularly.



• They communicate with a variety of personnel, from international to local clientele.



• They monitor a CCTV connected to a weighbridge reacting to a light and buzzers, they then enter data on a computer to record the information (WDMS). Monitoring and responding to a fire panel and react to central communications 3.



• They program access cards (Prowatch System) with various parameters and run reports on companies/individuals and produce daily audits 4.



• They are the central communications control room 5.



• They not only control entry for one Major Hazard Facility but two; Tronox and Kwinana Chlor Alkali share the same entry point.



• They also collect data and weigh vehicles for both companies.



• They are also the communications control room for both companies during incidents.

The respondent’s submissions

[11] The applicants are engaged as full-time employees to work at the Tronox site in Kwinana. The site is a 24/7 site, with one security officer rostered on shift at all times.

[12] The employees are stationed at the front gatehouse predominantly performing ‘gatehouse’ duties, in addition to other duties, which include First Aid and foot patrols. Accordingly, the work is classified as that of a Security Officer Level 3 in accordance with the Award.

[13] A list of duties is outlined in Attachment B to the respondent’s classification submissions.

[14] The duties of the employees reflect those of a traditional security gatehouse, with some computerised functions; which typifies a Level 3 classification. A Level 4 classification, by contrast is typically associated with Control Room/Monitoring Centre functions and responsibilities.

[15] The duties of the employees are documented in full in the Site Standing Orders 6. The respondent confirms it agrees with the applicants’ submitted duties (as outlined in Attachment 3 of the applicants’ classification submissions).

[16] The employees man the front gatehouse predominantly performing what is known as ‘gatehouse’ duties, with some computerised functions. This includes monitoring fire alarm panels, acknowledging and responding to and resetting alarms, weighbridge duties, programming electronic security and executing various computerised reports.

[17] Other duties include providing First Aid, performing site inductions, foot patrols and some other duties. The employees are paid a First Aid Allowance as per the Award.

[18] Overall, the duties performed by employees at the Tronox site are what are considered to be typical gatehouse duties. The duties of the site reflect those of a typical gatehouse with computerised functions, which typifies a Level 3 classification.

[19] A Level 4 classification, by contrast is typically associated with Control Room functions and responsibilities. With these roles the prime function of the role is to monitor instruments, use/manipulate integrated intelligent building management or security systems and computer programs, and coordinating/monitoring the other security officers all within a central location or control room.

Response to the applicants’ submissions

[20] In reference to the applicants’ notes provided on Attachment 1 of their classification submissions, the respondent provides the following responses.

[21] The applicants’ state “We work constantly by ourselves with limited or no supervision” and refer to clause C.4.2 (a) of the Award. The respondent’s submission in response is that clause C.3.2 (a) of the Award also states “works from complex instructions and procedures under limited supervision”.In addition, under Schedule C–Classification of the Award under clause C.3.2 (f) it states “performs work independently under limited supervision either individually or in a team environment”.

[22] The applicants’ state “We train relief officers regularly” and refer to clause C.4.2 (b) of the Award. The respondent’s submission in response is that clause C.3.2 (d) of the Award also states “assists in the provision of on-the-job training”. This particular descriptor is contained in classification levels 1-4 of the Award and therefore while we acknowledge that employees at the Tronox site do train relievers from time to time, as a ‘single man post’ this is not a significant component of their roles and nor would this make them a Level 4 site, as it is referred to in lower classifications.

[23] With regards to clause C.4.2 of the Award the applicants’ “Refer to C.4.3 (a) (b) (c)”. The respondent’s submission in response is that clause C.3.2 (c) of the Award also states “exercises computer skills at a level higher than Level 2”.

[24] The applicants’ state “We communicate with a variety of personnel, from international to local clientele” and refer to clause C.4.2 (e) of the Award. The respondent’s submission in response is that clause C.3.2 (b) of the Award also states “exercises good interpersonal and communications skills”.

[25] The applicants’ state “We monitor a CCTV connected to a weighbridge reacting to a light and buzzers, we then enter data on a computer to record the information (WDMS)” and refer to clause C.4.3 (a) of the Award. The respondent’s submission in reply is that clause C.2.3 (f) of the Award states “operate a public weighbridge”. Clause C.3.3 (a) of the Award also states “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”. In addition clause C.3.3 (c) of the Award states “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”.

[26] The applicants’ state the following “Monitoring and responding to a fire panel and react to central communications. Please refer to Photo 2, Photo 3, Photo 4, Photo 5 and Photo 6”. The respondent’s submission in reply is that C.3.3 (b) of the Award also states “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”.

[27] The applicants’ state “We program access cards (Prowatch System) with various parameters and run reports on companies/individuals and produce daily audits. Please refer to Document 4 and Document 5” and refer to clause C.4.3 (b) of the Award. The respondent’s submission in response is that clause C.3.2 (c) of the Award states “exercises computer skills at a level higher than Level 2” and clause C.3.3 (c) states “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”. Level 3 also states at clause C.3.3 (b) of the Award “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”.

[28] Further, clause C.3.3 (a) of the Award also states “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”. While employees at the Tronox site do program some access cards, it does not make up a significant proportion of their duties, nor should it be considered the prime function of their role.

[29] Further, the respondent submits that compared to other sites with a higher classification level, the programming of access cards at Tronox is not a particularly complicated process, as outlined in the instructions in the Site Standing Orders 7.

[30] With regards to clause C.4.3 (c) of the Award the applicants’ “...refer to photo 1”and state “We are the central communications control room.” The respondent’s submission in reply is that clause C.3.2 (b) of the Award states “exercises good interpersonal and communications skills” and clause C.3.3 (a) of the Award states “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”.

[31] The respondent also submits that clause C.3.3 (b) of the Award states “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”. Further, the respondent submits that this classifier (clause C.4.3.c) cannot be applied to the Tronox site because, as a ‘single man post’, there is only ever one security officer on duty at a time so it is simply not possible for them to monitor other security officers.

[32] Attachment F is a breakdown of the list of duties (as provided by the applicants in their classification submissions) and demonstrates which level (or levels) the duties are best aligned to, in the respondent’s view, using the Award classification levels.

Conclusion

[33] The respondent maintains the position that the Tronox site is correctly classified as a Level 3 site, as the duties of the site reflect those of a typical gatehouse with computerised functions, which typifies a Level 3 classification. Throughout the descriptors for Level 3, the word “gatehouse” is used multiple times.

[34] Level 4 on the other hand, it is submitted, is typical of ‘Control Room’ duties, where the prime function of the role is to monitor instruments, use/manipulate integrated intelligent building management or security systems and computer programs, and coordinating/monitoring the other security officers, all within a central location or control room. Level 4 classification descriptors make no reference to the word “gatehouse” at all.

[35] As previously stated the Tronox site is a one man post and therefore there is only ever one security officer on duty at a time so they cannot monitor other security officers; it is simply not possible for them to do this and therefore many of the Level 4 classification descriptors cannot be applied.

[36] While some gatehouse roles are classified as a Level 4 for such a site to warrant a Level 4 classification, the nature of their duties would need to be far more complex than what is currently undertaken at the Tronox site. Further, the respondent submits that while the applicants’ perform a number of computerised functions, as supported by the applicants photos, the equipment used is not particularly complex, modern or complicated.

[37] While the respondent acknowledges that the applicants do program some access cards, this does not form a significant part of their duties, is not the prime function of their role nor is it performed to a high degree of complexity. Rather, the respondent maintains that the prime function of their role is to perform ‘gatehouse’ duties, with computerised functions.

[38] Rather than being a ‘central control room’ the applicants work in a ‘gatehouse’ designed to control and monitor the movement of persons, vehicles, stock and material. The Level 3 descriptor in the Award also includes the monitoring and operation of building operation systems. The respondent maintains that the prime function of the applicants’ role (and main focus of their duties) sit clearly within the Level 3 classification level.

[39] Further, as outlined above, most of the Level 4 descriptors referred to by the applicants’ are also referred to in lower levels (for example Level 2 or 3).

[40] Taking into consideration all of the above, the respondent maintains its position that the Tronox site is correctly classified at a Level 3 site.

[41] The respondent also notes that the employees are currently paid more over the course of a year (and per shift), under their current Level 3 arrangements than they would be at a Level 4 (Award only). This is because they are currently paid a Tronox Site Allowance above the Award.

[42] In addition to the Tronox Site Allowance employees are also eligible to receive an annual retention bonus 8. These ‘above award’ conditions are in recognition of the experience, long tenure and value of the employees working at the Tronox site.

Consideration

[43] The approach to be applied in a dispute such as this where the question is which particular classification in the Award is the employee engaged in has been considered in a number of decisions of the Federal Magistrate Court of Australia.

[44] In Sim v LUO Enterprises Pty Ltd (No 2) reported at 191 IR 401, paragraphs 124 to 128, Federal Magistrate O’Sullivan explained that the applicable general principle was referred to as “...the principal of major and substantial employment”. The Magistrate explained it has also been referred to as the “...principal purpose...” test. Similarly Federal Magistrate Lucev in Olsen v Wellard Pty Ltd [2008] FMCA 320 at paragraphs 6 to 10 having reviewed the authorities explained that the task was to identify the principal purpose of the employment.

[45] The nature of the work of the applicants in this case as mentioned above is not disputed.

[46] A review of the classifications in the Award, from Security Officer Level 1 through to Security Officer Level 4, demonstrates that there is an escalating level of skill, responsibility, authority and complexity of duty from the lower level to the higher levels in the classification structure. Through the classification structure there is naturally a commonality of tasks and functions which are carried out to varying degrees at each different classification level. There is inevitably some overlap between each classification level and there is no definitive border between any two classifications.

[47] Considering the duties and functions of the applicants’ I am satisfied that the submissions of the respondent are correct to the extent that they have demonstrated that the vast majority of the work carried out by the applicants does fall within the classification of a Security Officer Level 3.

[48] The exception to this however is the work the applicants have identified as programming access cards using the Prowatch System.

[49] To this extent I accept the applicants’ submissions that this work considered in isolation would properly fall within the classification of a Security Officer Level 4. Indeed programming access cards is expressly listed as an indicative task an employee at Level 4 may be required to perform, (clause C.4.3 (b) of the Award). There is no similar reference to programming access cards under Security Officer Level 3. The respondent indeed recognises that this particular task arguably is within a Security Officer Level 4 classification.

[50] However the fact that the applicants are required at times to undertake this one task that is an indicative task for a Security Officer Level 4 does not itself answer the question of what is the correct classification for the applicants under the Award.

[51] It is clear that this task of programming access cards is not the major and substantial employment of the applicants’. Rather the applicants are engaged substantially to carry out tasks and duties that properly fall within the classification of a Security Officer Level 3. The principal purpose for which the applicants are employed is to carry out that work which is covered by the Security Officer Level 3 classification and the fact that the applicants do at times program access cards does not alter this conclusion. If the applicants were in fact spending a majority of their working hours programming access cards then a different conclusion would have been reached.

[52] My determination is that the applicants in this instance are properly classified under the Award as Security Officers Level 3.

THE CALCULATION DISPUTE

Background

[53] As explained above the parties are also in dispute as to the correct calculation of the applicants wages under the Award.

[54] The parties have provided the details of the roster worked by the applicants and both parties have provided detailed calculations and submissions in support of their calculations.

[55] Having reviewed these calculations and the submissions there are three issues in dispute that need to be determined by the Commission.

[56] The first is whether the respondent can operate with shifts that are of 12 ordinary hours duration?

[57] The second issue is whether the respondent can put in place a roster which results in 12 hours of overtime being worked on a Sunday?

[58] Finally the third question is whether the respondent’s method of calculating the payment of the First Aid Allowance is correct?

Consideration

Can the respondent operate with a shift duration of 12 ordinary hours?

[59] The applicants argue that there is no agreement between the respondent and the employees concerned, being the applicants, that ordinary working hours exceeding 10 but not 12 hours per shift can be worked as is provided for in clause 21.2−Shift Duration of the Award at paragraph (b). This provision is set out below.

“(b) Notwithstanding clause 21.2(a), by agreement between the employer and the majority of employees concerned in a particular establishment, ordinary working hours exceeding 10 but not exceeding 12 hours per shift may be introduced subject to:

(i) proper health monitoring procedures being introduced;

(ii) suitable roster arrangements being made;

(iii) proper supervision being provided;

(iv) adequate breaks being provided; and

(v) an adequate trial or review process being implemented where 12 hour shifts are being introduced for the first time.”

[60] The respondent points to the history of how work has been organised at the Tronox site and submit that there has been a 12 hour shift arrangement in place since 2002. In 2002 the four employees then engaged at the site were balloted on the question and of those three voted yes to working 12 hour shifts and at the time they were provided with the background explanation that the then pre-reform award did allow for ordinary hours to be worked in excess of 8 per shift but not exceeding 12 per shift but only where the majority of employees agreed.

[61] One of the applicants, Mr Johnson, was at the time one of those employees then engaged.

[62] Subsequently the respondent registered the Chubb Security Australia Pty Ltd - Tiwest Enterprise Agreement 2002 [AG818203] which also provided for 12 hour shifts to be worked.

[63] For their part the applicants deny there is now any agreement from them that they will work shifts of 12 ordinary hours however they do not object to this happening but say their concern is about the pay calculations that the respondent has been applying.

[64] The relevant Award clause says that ordinary working hours not exceeding 12 per shift may be introduced subject to certain requirements.

[65] The Merriam Webster dictionary defines “introduced” as follows:

“1 :  to lead or bring in especially for the first time <introduce a non native species>

2

a :  to bring into play

b :  to bring into practice or use...”

[66] The respondent in this instance is not seeking to change the roster to bring in for the first time 12 ordinary hour shifts. Rather the longstanding 12 ordinary hour shift arrangements which were in place before the Award was made in 2008 have continued to be worked through to today. Shifts of 12 ordinary hours are not being introduced here at all.

[67] Considering the terms of the Award in my view it is clear that clause 21.2−Shift Duration at paragraph (b) applies where an employer wishes to introduce 12 ordinary hour shifts for the first time. The clause does not apply where a shift duration of 12 ordinary hours already exist in a particular establishment as is the case here.

[68] My decision is that in the circumstance of this matter the respondent is able operate with shifts that are of 12 ordinary hours duration.

[69] I note that where 12 ordinary hour shifts are in operation the clause does not require the employer to constantly seek the agreement of new employees who come to work at that establishment to be allowed to continue operating 12 ordinary hour shifts. In any event in this case the respondent’s standard employment letter specifically addresses this with a term to the effect that signing the contract indicates the new employee agrees to work 12 hour ordinary time shifts and that the respondent’s method of payment regarding overtime on a 12 hour shift is applicable.

Can the respondent put in place a roster which has in 12 hours of overtime being worked on a Sunday?

[70] The applicants submit that they do not object to working 12 hour shifts but do object to the manner in which the respondent sets the roster so that the Sunday is a shift of 12 hours overtime.

[71] This aspect of the respondent’s roster minimises the wage cost to the respondent.

[72] If the roster was arranged differently the 12 hours of overtime which under the respondent’s roster falls on a Sunday would be spread across a number of different shifts and these overtime hours could be paid at double time and in addition the ordinary hours worked on the Sunday would also be paid at double time.

[73] The applicants submit that the roster should show only 10 ordinary hours for each 12 hour shift and the balance, 2 hours, would be overtime. The applicants see the respondent’s approach to rostering as reducing their wages.

[74] In [2008] AIRCFB 1000 a Full Bench of the Commission dealing with award modernisation and in particular the making of priority modern awards specifically considered the terms of the new Security Services Industry Award 2010 [MA000016] (the Award in this matter) and the exposure draft that was available for the parties comment, and dealt with the issue of 12 hour ordinary time shifts as follows:

“Ordinary hours of work and rostering

[296] We have been persuaded by the submissions of ASIAL that provision should be made for 12 hour ordinary time shifts. We recognise that the security services industry operates 24 hours a day, seven days a week and that 12 hour shifts are a ubiquitous feature of the industry throughout Australia. The exposure draft provided for 12 hour shifts but only on the basis of 10 hours of ordinary time and two hours of rostered overtime. The absence of provision for 12 hour ordinary time shifts would result in increased costs to many employers and result in many employees working more overtime than they may wish to work. The pre-reform awards in NSW, Victoria and Western Australia contain facilitative clauses that allow for 12 hour ordinary time shifts to be worked by agreement with a majority of employees, as does the relevant NSW NAPSA. We have included such a clause based on the clause in the Victorian pre-reform award.” (Underlining added)

[75] The applicants’ approach to their calculations is based on each 12 hour shift being assumed to comprise 10 ordinary hours and 2 hours overtime. It is significant that the Full Bench of the Commission at the time of making the Award expressly identified that this method of working would result in increased costs to many employers and deliberately provided for 12 hour ordinary time shifts to avoid this cost impost on employers and the Full Bench recognised that amongst others the Western Australian pre-reform award provided for 12 hour ordinary time shifts already.

[76] The Roster design in any workplace is at the discretion of the employer subject to the Award requirements.

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

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

First Aid Allowance

[79] There is agreement that the applicants are all entitled to the First Aid Allowance payment. However it is not clear how the applicants’ calculations were arrived at.

[80] The amount of the First Aid Allowance to be paid is prescribed in clause 15 of the Award as below:

“15.1 Allowance rates

Employers must pay to an employee such allowances as the employee is entitled to under this clause at the following rates (which are expressed as a percentage of the standard rate being the minimum weekly wage for the Security Officer Level 3 classification):

(a) Wage related allowances

Allowance	Payable	% of standard rate
First aid	per shift	0.68
maximum per week	3.38

...”

[81] The allowance is paid per shift. The amount payable is 0.68% of the standard rate. The standard rate is defined in clause 3−Definitions and Interpretation of the Award to mean the wage for a Security Officer Level 3, allowing for the transitional provisions.

[82] The reference to 3.38% is to the maximum allowance an employee can be entitled to per week, which effectively equates to a maximum payable of 5 shifts of the First Aid Allowance per week.

[83] Considering the terms in the Award the respondent’s calculation on this issue of the First Aid Allowance payable is correct.

Additional payments

[84] The respondent pays to the applicants additional payments that are over and above the Award payments 9. In reaching the conclusion that the respondent’s calculations do satisfy the Award requirements I have not taken these additional payments into account to the benefit of the respondent.

[85] If these additional payments are taken into account self evidently the respondent is paying the applicants in excess of the Award requirements.

Summary

[86] The applicants are properly classified under the Award as Security Officers Level 3.

[87] The manner in which ordinary hours and overtime are provided for in the respondent’s roster is consistent with the requirements of the Award.

[88] The respondent’s calculations of the payments to be made to the applicants under the Award when working the roster are correct.

COMMISSIONER

Appearances:

D Harland on behalf of the applicants.

S Pedlow for the respondent.

Hearing details:

2013.

Perth:

September 11.

Final written submissions:

Applicant, 1 August 2013 and 26 August 2013.

Respondent, 19 August 2013 and 26 August 2013.

 1   Attachment E to the respondent’s classification submissions

 2   Document 3 to the applicants’ classification submissions

 3   Photographs 2 to 6 to the applicants’ classification submissions

 4   Documents 4 and 5 to the applicants’ classification submissions

 5   Photograph 1 to the applicants’ classification submissions

 6  Attachment E to the respondent’s classification submissions

 7   ibid., pages 17-19

 8   Attachment G to the respondent’s classification submissions

 9   Attachment E to the respondent’s calculation submissions

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