Miss Liliana Malic v McMah Pty Ltd T/A Men at Work Labour Hire

[2016] FWC 2369

[2016] FWC 2369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Miss Liliana Malic
v
McMah Pty Ltd T/A Men at Work Labour Hire
(C2015/7011)

DEPUTY PRESIDENT SAMS SYDNEY, 13 APRIL 2016

Application to deal with a dispute under the disputes procedure of an enterprise agreement – interaction of Award – contract Security Officer – requirement to stay on site during meal breaks – appropriate classification – non-payment of first aid allowance – relevant Award determined – reclassification claim dismissed – payment of first aid allowance subject to conditions – meal breaks – application otherwise concluded.

BACKGROUND

[1] Ms Liliana Malic (the ‘applicant’) works as a Contract Security Officer at the premises of the University of the Sunshine Coast (‘USC’ or the ‘University’), pursuant to a contract between her employer, McMah Pty Ltd t/a Men at Work Labour Hire (the ‘respondent’) and the University. On 22 October 2015, Ms Malic filed an application seeking that the Fair Work Commission (the ‘Commission’) deal with a dispute she (and others purportedly agreeing with her) has with the respondent. In her Form F10 Application, Ms Malic identified the issues in dispute as follows:

‘- Security officers required to stay on site (University Sunshine Coast) during their meal, not allowed to leave during a meal break. Paid for 7.5 hours but are told to stay on site for 8 hours. Other officers get paid for a meal break (in house guards).
- Security officers paid at level 2 when they should be paid at level 3. They are required to be a certified Fire Warden, operate fire panels, evacuate buildings, operate computer software give access to staff, students, contractors. Attend to all alarm activations – Freezers, pump house, generators, Duress alarms, fire alarms, Attend to alarm activations in Chancellor Primary and High School. Required to wear personal body cameras, monitor CCTV, train and supervise new guards. First Aider, Crowd Controller, parking duties.
- Security officers are nominated First Aider by the University to attend First Aid call outs. Must be certified in oxy viva and Defibrillation equipment.
We are not being paid the First Aid Allowance.’

[2] The matter was listed for a conciliation conference before the Commission on 10 November 2015, on the understanding that Ms Malic’s employment was covered by the Security Services Industry Award 2010 [MA000016] (the ‘Security Award’) (as had been advised in her Form F10 dispute notification). The issue of industrial coverage was not raised during that conference. The dispute was unable to be resolved during the conciliation conference. Accordingly, I proposed to issue directions on that day for the parties to file their evidence and submissions.

[3] On closer inspection and immediately after this conference, I formed a preliminary view that Ms Malic’s employment was covered by the McMah Pty Ltd Enterprise Agreement 2014 - 2018 [AE412175] (the ‘Agreement’). I directed my Associate to write to the parties to this effect and they confirmed that this was, in fact, the case. Clause 15 of the Agreement deals with Disputes at Work and is expressed as follows:

15. Disputes at Work

a. The following Dispute Resolution procedure will apply where a dispute arises in relation to a matter arising under the Agreement or the NES.
b. Employees will need to first meet and confer with their immediate Supervisor.
c. If the matter is not resolved at such a meeting the parties will arrange further discussions involving more Senior Management as appropriate.
d. If the matter remains unresolved, the Company will refer the matter to its most Senior Manager who will attempt to resolve the matter within 14 days or longer as agreed by the parties.
e. In the event of the matter remaining unresolved, either party may refer the matter to the Fair Work Commission.

(i) The Fair Work Commission may assist to settle the dispute through conciliation and/or mediation (but not arbitration).
(ii) Should it remain unresolved, the Company will appoint an independent third party, which may be the Fair Work Commission, who has the capacity to settle the dispute through arbitration, of which a decision will be binding on the parties. However, the decision of an independent third party or the Fair Work Commission shall be consistent with the Building and Construction Industry (Fair and Lawful Building Sites) Code or its successor.

f. Until the matter in dispute is determined, the status quo will prevail and the needs of the Company will remain a priority except in situations where there is an immediate and significant threat to the health and safety of Employees or others.
g. At any stage of this Dispute Resolution procedure, an Employee may appoint a representative, including another Employee or any other person, to act as their representative in an attempt to achieve resolution.

[4] The Agreement was approved with undertakings by Commissioner Bull (as His Honour then was) on 12 January 2015; (See: McMah Pty Ltd T/A Men At Work Labour Hire [2015] FWCA 253). Contingent upon approval, His Honour accepted an undertaking in which the respondent agreed to reduce the Agreement’s coverage to include reference to 59 of the 122 existing Modern Awards, including the Security Award and, importantly, the Higher Education General Staff Award 2010 [MA000007] (the ‘Higher Education Award’).

[5] I deferred issuing formal Directions in this matter, as the parties advised that a mediation was scheduled before the Fair Work Ombudsman (the ‘Ombudsman’) dealing with elements of Ms Malic’s claims. Following advice that this mediation had not taken place and the respondent’s advice that they wished to appoint the Commission to arbitrate the dispute in accordance with cl 15(e)(ii) of the Agreement, I issued Directions on 27 November 2015. By consent, the matter proceeded on the basis of the written materials filed by the parties (‘on the papers’).

The Agreement and Award provisions

[6] Before summarising the submissions of the parties, I note that, unusually, the Agreement does not provide for its own classifications or wage rates, but incorporates them from other industrial instruments (Bull C described this approach as ‘unorthodox’). Cl 5, deals with the scope of the Agreement and reflects the interaction of the relevant Modern Awards with the Agreement. It is set out below:

5. Scope and Intent

a. This Agreement incorporates all relevant Modern Awards (and any other prior relevant Award) that would otherwise apply to Employees “Relevant Award”. The Relevant Award (and any other prior Relevant Award) is to be read and applied in conjunction with the terms and conditions in this Agreement. To the extent that where there is any inconsistency, the Agreement shall prevail.

b. In the event that no relevant Modern Award (or any other prior Relevant Award) exists to cover a particular assignment, the terms and conditions of employment will be governed by this Agreement, together with the relevant legislation (inclusive of the National Employment Standards) that would otherwise apply.

c. The rates of pay, terms and conditions in this Agreement represent the minimum that will be paid to Employees. The Company will assess the market conditions and may pay Employees a higher rate of pay or altered terms, in accordance with clause 16 b.,where it is able to negotiate this with the Client. Given the nature of on-hire work, any increases above the minimum wages may vary from assignment to assignment and will be entirely at the discretion of the Company.

[7] Ms Malic contends that she and the other contracted Security Officers, are classified under either Level 3 or Level 4 of Schedule C of the Security Award. The respondent maintains that the Security Officers are classified at Level 2. The relevant classifications in the Security Award are set out as follows:

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.2.2 A 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.2.3 Indicative 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.

C.2.4 A Security Officer Level 2 may be required to perform the duties of a Security Officer Level l provided that such duties are not designed to promote deskilling.


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.

[8] Similarly, there are no provisions in the Agreement dealing with first aid allowance or meal breaks. These terms are found at cl 15.4 and 21.6 and of the Security Award, which I set out below:

15.4 First aid allowance

A first aid allowance is payable to an employee where an employee holds a Senior First Aid Certificate (also known as Apply First Aid or Workplace Level 2) and is requested or nominated by the employer to act as a first aider.

…

21.6 Meal and crib breaks

(a) Meal breaks

Except where it is operationally impracticable, an employee will be granted an unpaid meal break of not less than 30 minutes where a shift exceeds five hours duration. For the purpose of this subclause it will be operationally impractical to grant an unpaid meal break unless the employee is permitted to leave the client’s premises or be unavailable for work during the period of the meal break.

(b) Crib breaks

…
A paid crib break (or breaks) must be allowed on shifts of more than four hours. A crib break of not less than 10 minutes on a shift of more than four hours, not less than 20 minutes on an eight hour shift, not less than 25 minutes on a 10 hour shift,and not less than 30 minutes on a 12 hour shift must be provided. For shifts of eight hours or more, the time must be allowed not earlier than four hours nor later than five hours after the time of commencement of each shift where it is reasonably practicable to do so.

[9] However, as will shortly become evident, the respondent submits that the correct terms and conditions of the contracted Security Officers, are to be found in the Higher Education Award. The equivalent classification clause is set out in Schedule B:

HIGHER EDUCATION WORKER LEVEL 2

Training level or qualifications

Level 2 duties typically require a skill level which assumes and requires knowledge, training or experience relevant to the duties to be performed; or Completion of Year 12 without work experience; or Completion of Certificates I or II with work related experience; or an equivalent combination of experience and training.

Occupational equivalent

Administrative assistant, security patrol officer.

Level of supervision

Routine supervision of straightforward tasks; close supervision of more complex tasks (see task level below).

Task level

Perform a range of straightforward tasks where procedures are clearly established. May on occasion perform more complex tasks.

Organisational knowledge

Following training, may provide general information/advice and assistance to members of the public, students and other employees which is based on a broad knowledge of the employees’s work area/responsibility, including knowledge of the functions carried out and the location and availability of particular personnel and services.

Judgment, independence and problem solving

Solve relatively simple problems with reference to established techniques and practices. Will sometimes choose between a range of straightforward alternatives.

An employee at this level will be expected to perform a combination of various routine tasks where the daily work routine will allow the latitude to rearrange some work sequences, provided the prearranged work priorities are achieved.

Typical activities

Administrative positions at this level may include duties involving the inward and outward movement of mail, keeping, copying, maintaining and retrieving records, straightforward data entry and retrieval.

Security officers may be involved in a range of patrol duties, including responding to alarms, following emergency procedures and preparing incident reports [emphasis added].

[10] The First Aid Allowance is set out under Schedule C of the Higher Education Award as follows:

Allowance …	Staff Category	Rate	Application
First aid	Building services staff; security staff, storage services; and trades staff	1.45of SR per week	Where an employee is the current holder of appropriate first aid qualifications (St John Ambulance) and the employer has formally appointed the employee to act as the first aid attendant.

[11] Provision for meal breaks in the Higher Education Award is set out under cl 22.1 as follows:

22.1 Meal break

An employee will not be required to work more than five consecutive hours without a meal break of at least half an hour. Time taken as meal breaks will not be paid for and will not be counted as time worked.

SUBMISSIONS

For Ms Malic

[12] Ms Malic provided four signed statements from herself, Gabriel Moeara, Ian Taylor and Tim Godfrey, all being contract labour hire Security Officers, employed by the respondent, providing security services at the University. Each of these statements was expressed in the same terms, as follows:

‘The following is the 3 main issues that we the Security Officers of Men@Work are concerned about and believe we are being underpaid.

1. Pay rates:

We, the casual employees of Men at Work labour hire are assigned to the University of the Sunshine Coast as Security Officers believe that we are being underpaid at the current Level 2 pay rate.

The duties we perform at USC requires us to do beyond level 2 duties (see SSIA 2010 attached). The duties we perform at the USC are to a Level Four classification as described below [see earlier para [7];

(I note that in Ms Malic’s originating application, it is claimed that the correct classification level is Level 3):]

…

Whilst performing our duties as MAW Contract Security guards at USC we do not work under general supervision of a more senior security officer.

…

These level four tasks are part of the everyday duties of either a MAW Contract Security Officer or an in-house Security Officer within the grounds of the USC.

We all perform the same functions and are on the same level and are not graded in our performance levels.

During our shifts we are required to wear a Personal Body Camera and are trained and certified Chief/Deputy Fire Wardens.

It is our belief that under the Current Award, the level 2 pay rate we currently receive from Men@Work is not the proportionate level to the duties we perform.

The level four tasks are part of the everyday duties of either a MAW Contract Security Officer or an in-house USC Security Officer within the campus grounds.

All USC and MAW Contract Security Officers perform the same functions equally yet get paid at a different pay rate level. It is our belief that the current level two pay rating is not equal to the functions we perform on a daily basis.

In addition to this, during our 24 hr rotational shifts we are required to wear a personal body camera and are trained and certified as Chief/Deputy Fire Wardens.

Attached is a USC Security Training sheet that we are all required to do as part of the USC Security SOPs (Standard Operating Procedures). This covers the broad spectrum of all duties that are performed by all security officers.

2. Meal breaks:

Currently our MAW unpaid meal breaks state that we are not permitted to leave the campus, and are to be on call/standby during our meal breaks to respond if an alarm or emergency occurs. The USC in-house Security officers are paid for a 45 minute meal break and are answerable to the radio or phone if an emergency or incident occurs.

MAW Contract Security officers are paid at a lower level, are not paid a half hour meal break, but are still required to carry the radio and phone whilst having a meal break. Why so different whilst performing the same duties, we believe this is discriminatory.

3. First Aid:

The First Aid that is administered on campus is at a higher level than the basic first aid required as a Level 2 Security Officer. The USC requires that all Security Officers have a current First Aid Certificate and an Advanced Resuscitation Certificate, which encompasses Oxy Viva and Defibrillation usage.

USC Security Officers are the requested/nominated first aider’s for the university, yet we are not being paid the fortnightly First Aid allowance for conducting this level of first aid. Please see the First Aid SOPs (attached).’

[13] Ms Malic provided a Document headed ‘University of Sunshine Coast – USC Security Training’, which appeared to be a contents page of a larger training document. In a note affixed to this document, she said that this was a ‘Training Sheet that all officers need to do and know. As per SOP’s (Standard Operating Procedures) that is given to all Security Officers. This document listed, amongst other things, log management, the filing of safety and incident reports, holding of first aid, oxy viva and advanced resuscitation certificates, knowledge of USC principles and policies, duress alarms, use of university infrastructure such as pump houses, generators, lecture theatre touch panels, fire warden responsibilities, security card use and maintenance, patrol procedures and alarm and emergency procedures.

[14] Ms Malic also attached a document marked ‘University of the Sunshine Coast – Emergency Procedures – Reference Facilities Management Procedures and Protocol Manual 2014’, dealing with the following issues:

• Incident Response;



• Incident and Emergency Escalation;



• Power Failure;



• Failure of Information Technology Systems;



• Utility Failure;



• Weather Event;



• First Aid;



• Hazardous Materials;



• Fire Alarms;



• Explosion;



• Bomb Threat; and



• Lockdown.

For the respondent

[15] In addressing the question of whether Ms Malic and her co-workers were entitled to be paid for their meal breaks while remaining on site, Mr Neil McIntyre, Director of the respondent, referred to cl 21.6 of the Security Award dealing with Meal and crib breaks (see para [8]). Mr McIntyre said that when he had spoken to ‘Fair Work Australia’ (presumably meaning the Fair Work Ombudsman), he had been asked if employees were able to leave the premises during the break and he had replied, ‘No’. He was then asked whether they were told to be unavailable during the period of their meal break and he had said ‘Yes’. ‘Fair Work Australia’ had then advised that an employee would not be entitled to be paid for this break, unless they are called to an incident. Mr McIntyre said that employees were paid to attend incidents.

[16] In relation to the claim that Security Officers were entitled to be paid a first aid allowance, Mr McIntyre referred to cl 15.4 of the Security Award (see para [8]). Mr McIntyre explained that it was a requirement of a security licence to hold a Senior First Aid certificate. However, the respondent had not nominated Ms Malic as a First Aider.

[17] Mr McIntyre attached an unsigned copy of the position description provided by USC, which was expressed in the following terms:

‘Position Overview

To provide a high level of security services to staff students and visitors of the University.

Duties can include:

1. Monitor and act to enhance, the safety and security of people and property within the University.

2. Perform random and irregular security patrols of the buildings and grounds, and other duties in accordance with the Security Procedures Manual.

3. Provide timely verbal and written reports detailing security incidents and investigations, potential risk situations and other unusual occurrences.

4. Provide a highly visible, public relations oriented presence for all University staff, students and visitors.

5. Conduct lock-up and opening of buildings and rooms.

6. Provide prompt after hours security escorts for staff and students.

7. Monitor electronic access, security and CCTV systems, including creating and activation of access cards, production of activity other reports [sic].

8. Perform traffic control duties on campus, maintain records and results of offending vehicles and cautions or warnings issued on the relevant database and maintain records of Parking and Traffic Audits.

9. Provide emergency first response services to the University including Chief/Deputy Fire Warden duties.

10. Other duties within the range of skills normally associated with a position of this classification in an evolving environment as required by the Security Operations Co-ordinator.

Selection Criteria

Essential

1. Education, training and / or relevant experience equivalent to Year 12 standard, combined with extensive experience in the provision of security services including knowledge of fire, evacuation and emergency procedures.

2. A current Queensland Security Licence, which must include:

• Security Guard, un-armed;



• Body Guard;



• Crowd Controller;



• Cash In Transit un-armed; and



• Security Monitoring.

3. Current First Aid Certificate, ‘C’ Class Driver’s Licence, and Working with Children Clearance (Blue Card).

4. The ability to meet the physical requirements of the position.

5. A commitment to the provision of high quality security services.

6. Knowledge of Queensland occupational health and safety legislation and practices.

7. An understanding of and the ability to apply the principles of equity and anti-discrimination in interactions with clients on a daily basis.

8. Sound computer skills and experience with Microsoft Office including Word, Excess and Access for the maintenance of electronic records and the production of reports.

9. The ability to communicate effectively both verbally and in writing, and to maintain confidentiality of information.

10. Sound interpersonal skills, the proven ability to work as part of a team and to work with minimal supervision and with initiative.

11. A Security Officer is appointed as a “Authorised Officer” under the University of the Sunshine Coast Act 1999 and is required to provide a “Name Only – Police Certificate” prior to appointment.’

[18] Mr McIntyre said that on the basis of this position description, a private company, Australia Wide Taxation & Payroll Training had advised the respondent that Ms Malic was a Level 2 employee under the Award (although it was not clear which Award the representative of this company was referring to). Mr McIntyre believed that a Level 4 under the Security Award would be a Control Room Operator. The respondent did not employ anyone under this classification.

[19] Mr McIntyre also provided a copy of advice received from an Officer of the Ombudsman, dated 27 November 2015. The Ombudsman was of the view that Ms Malic was in fact covered by the Higher Education Award and was applicable to Ms Malic in her work at USC. In those circumstances, Ms Malic would be classified as a Higher Education Worker Level 2, which is set out under Schedule B (see para [9]). Notwithstanding the Fair Work Ombudsman’s advice, the respondent had subsequently advised the employees that they would continue to be paid at the rates for Level 2 employees under the Security Award, which were marginally higher than those under the Higher Education Award.

[20] The Ombudsman’s advice drew attention to the First Aid Allowance under Schedule C of the Higher Education Award, which was said to apply:

‘Where an employee is the current holder of appropriate first aid qualifications (St John Ambulance) and the employer has formally appointed the employee to act as the first aid attendant.’

[21] The Ombudsman declined to proffer a view as to whether an employee should be provided a paid meal break if required to remain on the premises. Mr McIntyre drew the Commission’s attention to cl 22.1 of the Higher Education Award and noted that there was no provision in this clause referring to whether an employee leaves the premises or not.

[22] In reply, Ms Malic maintained that she should be paid for her half hour meal breaks, as she was required to remain on site for the eight hours of her shift. She acknowledged that the respondent had advised employees would be paid if they had to attend to an incident during their break, but complained that she had only become aware of this in the last five months.

[23] Ms Malic conceded that all persons holding a security licence in Queensland were required to have a ‘Basic’ Senior First Aid certificate. However, the University required that they also hold an Advanced Resuscitation Technique certificate and the SOPs set out that all Security Officers shall be nominated First Aiders on the University’s grounds.

[24] Ms Malic maintained that she and the other Security Officers employed by the respondent at USC, were covered by the Security Award. She did not see the relevance of the advice of Australia Wide Payroll advice. Ms Malic believed that when she ‘signed on’ with the respondent, there was a reference to the Security Award and not the Higher Education Award as covering her employment.

CONSIDERATION

[25] At the outset, it must be said that the three claims presented by Ms Malic in this matter are predicated on an assumption that labour hire contract Security Officers are performing the same work, and subject to the same occupational requirements, as in-house Security Officers at the University, who, it is said, are paid at a higher rate, receive a paid meal break and are paid a first aid allowance. In my opinion, a s 739 application is not an appropriate vehicle to pursue such claims. While I accept Ms Malic and her co-workers were unrepresented, there are a number of difficulties with adopting that approach. That said, it is not for the Commission to advise Ms Malic as to the correct mechanism or processes for dealing with her grievances; suffice to observe that the claim, in respect to reclassification and the material put in support of that claim, have all the hallmarks of a ‘work value’ claim.

[26] Putting aside the exiguous material said to support a wage parity claim with the in-house Security Officers, I have not a skerrick of evidence as to what the in-house Security Officers do, what they are paid or what industrial instrument covers them. It is not for the Commission to prove the case for Ms Malic by making its own inquiries as to these matters. Nor is appropriate for the Commission to confine the parties’ cases or advise them on how to run their respective cases. That said, in work value cases, it is often very helpful for the Commission to observe the work being performed through direct inspections. However, this case proceeded by consent of the parties, ‘on the papers’.

[27] It is highly unusual for evidence relied on in a matter before the Commission, to consist entirely of identical ‘word for word’ statements from four witnesses - almost appearing to be a petition. This evidence would ordinarily be subject to objection. Again I note that Ms Malic was unrepresented. It must be stressed that the Commission can only determine matters on the properly adduced and tested evidence and the submissions of the parties. It is not open for the Commission to tell the parties how to run their cases.

[28] Similarly, the respondent’s case also suffers from some difficulties. For example, Mr McIntyre relied on the Security Award for the Company’s view of the First Aid and Meal Breaks provisions; but then said that the Security Industry Award did not apply to the labour hire Security Officers employed by the respondent. Doing the best I can with the materials filed, I turn now to consider the three claims.

[29] Regrettably, this dispute has arisen as a result of the confusing terms of the Agreement as to which Modern Award is referable to the coverage of labour hire employees engaged by the respondent as Security Officers at the University. When the Agreement was before the Commission for approval (Bull C) in late 2014 and early 2015, it is apparent that the Commissioner had a number of misgivings, in relation to the terms of the Agreement as to whether it should be approved and the relationship of the Agreement to the relevant Modern Awards. Originally, the respondent had sought to cross reference all 122 Modern Awards to the Agreement, covering 85 employees. His Honour said at para [12] of his decision:

‘[12] It is self evident that the 85 employees eligible to vote on the Agreement cannot be engaged in each industry of the 122 modern awards covered by the Agreement.’

[30] After further consideration, the respondent reduced the number of Awards to 93 and then to 59, by excluding obvious Modern Awards that could not possibly cover the employees, such as the Medical Practitioners Award 2010 [MA000031] and the Legal Services Award 2010 [MA000116]. The 59 Modern Awards are set out at Appendix 1 to His Honour’s decision. As earlier mentioned, it includes both the Security Award and the Higher Education Award.

[31] I have set out this history, not only to demonstrate the ‘unorthodox’ approach to the processes and content of the Agreement (which should be eschewed in the future), but to illustrate how easy it was for both the respondent and Ms Malic to be confused and uncertain as to the Modern Award coverage of particular employees, as what terms and conditions are to be applied. Given the Awards’ differences, this uncertainty has real practical implications. At this point, I observe that it is irrelevant what an employee is told at the commencement of employment as to Award coverage; See: Trutwein v Harness Energy Services Pty Ltd t/as Harness Energy[2015] FWC 1816 at para [55]. Award coverage is an objective test which is underpinned by the statutory processes when the Commission, in approving an enterprise agreement, is required to be satisfied the Better Off Overall Test (BOOT) is met.

[32] It follows that, given the competing submissions of the parties, the first question which needs to be answered is which Modern Award is to be cross referenced to the Agreement, consistent with cl 5, as being applicable to the work of Ms Malic and her colleagues? The subsequent question/s is whether the applicable Award’s terms and conditions are being applied to the contracted Security Officers at the University, in accordance with their plain and ordinary meaning; See: Australasian Meat Industry Employees’ Union v Golden Cockerel Pty Limited[2014] FWCFB 7447.

What Award is the applicable Modern Award?

[33] In my opinion, there are compelling reasons why the Higher Education Award is the applicable correlated Award for the Security Officers at the University. These reasons include:

(a) The Higher Education Award contains a classification for Security Patrol Officer;
(b) The labour hire Security Officers’ work only at the University. The situation might be less clear if the Security Officers worked at different locations, for different host employers in different industries. In those circumstances, which are not uncommon in the security industry, the more generic Security Award may be considered appropriate.
(c) It is at least arguable that the Security Officer employees of the respondent, are employed in the higher education industry as Security Officers, rather than the labour hire industry.
(d) The training and certificate requirements (and all policy and procedure documents) for the Security Officers are issued by the University, not the respondent, as the documents filed by Ms Malic make clear.
(e) Clause 4.5 of the Higher Education Award is expressed as follows:

4.5 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.

There can be little doubt that the respondent employer (McMah Pty Ltd) supplies ‘labour on an on hire basis’ (the Security Officers) and that they can be covered by the Higher Education Award. There are no relevant exclusions.
(f) Like the Security Award, the classification structure is composed of Higher Education Worker 1 – 6. The only occupational equivalent mentioning Security Officer is at Level 2 – ‘Security Patrol Officer’. Typical activities are described as:

‘Security officers may be involved in a range of patrol duties, including responding to alarms, following emergency procedures and preparing incident reports.’

It seems to me that these activities are entirely consistent with the work performed by Security Officers at the University.
(g) In Schedule C – Allowances – a number of allowances are said to be, or may be, applicable to Security Staff at the University:
● Broken shifts;
● First aid;
● Relieving officer.
(h) By letter dated 27 November 2015, the Fair Work Ombudsman, in response to the direct question of Modern Award coverage for these employees, found that the Higher Education Award was applicable. I annexure the Fair Work Ombudsman’s letter to this Decision as Annexure A.

[34] Given these reasons, I am satisfied that labour hire Security Officers at the University, are covered by the terms and conditions of the Higher Education Award, by reference to cl 5 of the Agreement.

[35] It follows, as the Higher Education Award has only one level of classification for Security Patrol Officers – Level 2 – that the Level 2 rate of pay is the correct rate of pay for the respondent’s labour hire Security Officers at the University. As the respondent pays the Security Officers above the Level 2 rate of pay (albeit only by a few cents an hour), the claim that Ms Malic and her co-workers should be classified at Level 3 or 4 of the Security Award must fail.

[36] As to the claim for a First Aid allowance, Ms Malic argued that as the University’s Standard Operating Procedures (SOPs) require all Security Officers to hold high level certification, they should be paid the First Aid allowance.

[37] However, both Modern Awards First Aid entitlements are conditional on two provisos; firstly, appropriate First Aid certification and secondly, the request or nomination by the employer of the employee as a First Aider. While accepting that the Security Officers meet the certification requirements, there is no reference in the SOP to a Security Officer being requested or nominated as a First Aider. Even if certification is a mandatory contractual requirement of the University, it is arguable that the University is not the employer of the Security Officers. In any event, given that it appears the University has not formally requested or nominated the labour hire supervisors as First Aiders, and the respondent employer, most assuredly has not, then absent the two preconditions set out in both Awards, the claim must fail. Of course, this is a matter which might well be addressed in enterprise negotiations.

[38] In respect to the claim in respect to meal breaks, there are obvious differences between the two respective clauses in the two relevant Modern Awards. However, as I have found that the Higher Education Award applies by virtue of cl 5 of the Agreement, that Award’s meal allowance and meal break provisions must also apply. Nevertheless, I am of the view that, in the ordinary course, if a meal break is unpaid, there should be no requirement that the employee remain on campus or be available in emergencies, unless there is an agreed arrangement between the employer and the employee. I observe that it would not be uncommon for such an arrangement to be found in a properly drafted enterprise agreement or an approved variation of an agreement. This accords with the usual industrial practice that an employee is entitled to do, and be where he or she chooses, during authorised breaks from work. To the extent that there might be circumstances where the Security Officer is required to be ‘on call’ during their breaks and must stay on campus, then the employee is entitled to be paid for that time and ‘counted as time worked’.

[39] This dispute is so determined and concluded accordingly.

DEPUTY PRESIDENT

Final written submissions:

For L.Malic: 5 January, 10 February 2016

For McMah Pty Ltd t/a Men at Work Labour Hire: 3 February 2016

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ANNEXURE A