Mr Glenn Kuppe v ISS Facility Services

[2016] FWC 8948

[2016] FWC 8948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute in relation to flexible working arrangements

Mr Glenn Kuppe
v
ISS Facility Services
(C2016/6440)

COMMISSIONER ROE MELBOURNE, 19 DECEMBER 2016

Resolution of dispute in accordance with the dispute resolution procedure of the Airport Employees Award 2010. Dispute concerning classification level and the arrangement of ordinary working hours.

Introduction

[1] Mr Glenn Kuppe is employed as a Work Safety Officer (WSO) at Melbourne Airport. The contractor for this work changed in 2016. A major international firm, ISS Facility Services succeeded in becoming the contractor for this work. They employ about 50 casual workers, including Mr Kuppe, as Work Safety Officers at Melbourne Airport as part of this contract. Mr Kuppe raised a dispute about a number of changes in working conditions which were introduced by ISS as the new contractor.

[2] Following a conference on 8 November 2016 at the Fair Work Commission the parties agreed to the following:

“1. The subject of the dispute is about a matter under the Airport Employees Award 2010 (the Award). The requirements of clauses 10.1 and 10.2 of the Award have been met and the matter is properly before the Commission under clause 10.4 of the Award.

2. The work of the Applicant is covered by the Airport Employees Award 2010 and there is no enterprise agreement approved by the FWC which is applicable.

3. There was no transmission of business when ISS Facility Services (the Company) replaced Centastaff as the provider of Work Safety Officer (WSO) services to Melbourne Airport.

4. The Applicant works as a shift worker under the Award.

5. After hearing the preliminary views of the FWC the parties accept that there are only two matters raised by the Applicant which need to be resolved and the other matters are not being pursued as part of this application. Those two matters are:

a. Is the correct classification of the WSO level 3 as asserted by the company or a higher level as asserted by the Applicant?

b. Are the ordinary daily hours of the WSO 12 hours consistent with Clause 27.3(c) of the Award as asserted by the Company or are they a lesser amount as asserted by the Applicant?”

[3] The parties subsequently advised the Fair Work Commission that they were prepared to accept “the Recommendation of the FWC as the resolution of the dispute in respect to these two matters pursuant to clause 10.3 and 10.4 of the Award and Section 739 of the Act.”

[4] The parties provided written submissions and I conducted an inspection of the work performed by the WSOs at Melbourne Airport on 1 December 2016.

Are the ordinary daily hours of the WSO 12 hours consistent with Clause 27.3(c) of the Award as asserted by the Company or are they a lesser amount as asserted by the Applicant?

[5] It became clear at the meeting held at the time of the inspection that:

● The practice of the former contractor was to pay overtime rates for work beyond 7.6 hours in a day.
● The practice of ISS has been to pay overtime rates for work beyond 10 hours in a day.
● The WSOs are engaged as casual employees. They work on a roster. The roster is generally posted in advance for the next week.
● The hours of work for each casual vary considerably from day to day and from week to week. For example, Mr Kuppe worked 2 to 3 shifts a week during July whilst earlier in the year he was working many more shifts each week.
● The duration of the rostered shifts ranges from 4 hours to 12 hours (not including a half hour meal break).

[6] The relevant Award provision is:

“27.3 Ordinary hours of work—shiftworkers
….

(c) Duration of shift

(i) Subject to clause 27.3(c)(iii), a shift must consist of not more than 10 hours, inclusive of rest time.
(ii) Subject to clause 8.5, in any arrangement of ordinary working hours where the ordinary working hours are to exceed eight on any day, such arrangement of hours will be subject to the agreement of the employer and the majority of employees concerned.
(iii) By agreement between the employer and the majority of employees concerned, ordinary hours not exceeding 12 on any day may be worked, subject to clause 8.8 and:

• proper health and safety monitoring procedures being introduced;



• suitable roster arrangements being made;



• proper supervision being provided; and



• consideration being given to family responsibilities.



• minutes must be allowed to shiftworkers each shift for a meal, which must be counted as time worked.

(d) Rosters

Shift rosters must specify the commencing and finishing times of ordinary working hours of the respective shifts.

(e) Variation by agreement

(i) Subject to clauses 27.3(b) and (d), the method of working shifts may in any case be varied by agreement between the employer and the majority of employees concerned.
(ii) The time of commencing and finishing shifts, once having been determined, may be varied by agreement between the employer and the majority of employees concerned to suit the operational requirements at an airport.
(iii) The provisions of clause 27.3(e) will operate subject to clause 8.5.

30.2 Payment for working overtime—shiftworker

(a) For all work required to be undertaken by a shiftworker outside ordinary hours Monday to Friday except as provided in clause 30.8, the rate of pay must be time and a half for the first three hours and double time thereafter, such double time to continue until the completion of overtime.

(b) For all work required to be undertaken by an employee on shiftwork outside of ordinary hours Saturday to Sunday except as provided by clause 30.8, the rate of pay must be double time until the completion of the overtime work.

30.3 Calculating overtime hourly rate

(a) Except as provided in clause 30.4, in computing overtime each day’s work will stand alone.

(b) The hourly rate for overtime purposes must be determined by dividing the appropriate weekly rate by 38.

8.5 The following facilitative provisions can be utilised upon agreement between the employer and the majority of employees affected in the workplace, provided that the agreement complies with clauses 8.6 and 8.7. Once such agreement has been reached, the particular form of flexibility agreed upon may be utilised by agreement between the employer and an individual employee without the need for the majority to be consulted:

Clause number	Subject matter
27.2(d)	Variation to the span of ordinary hours
27.3(c)(ii)	Arrangement of ordinary hours of shiftwork
27.3(e)	Variation of the method of working shifts
31.3(b)	Single day annual leave absences
36.3	Substitution of public holidays

8.6 Agreement reached consistent with clause 8.5 must be recorded in the time and wages records kept by the employer.

8.7 If an employee is a member of a relevant union, the employee may be represented by the union in meeting and conferring with the employer about the implementation of the facilitative provisions specified in clause 8.5. The union must be given a reasonable opportunity to participate in the negotiations regarding the proposed implementation of a facilitative provision. Union involvement does not mean that the consent of the union is required prior to the introduction of agreed facilitative arrangements.”

[7] I am satisfied that the proper meaning of Clause 27.3(c) is that shifts of up to 10 hours can be worked as part of ordinary time. Shifts of up to 12 hours can only be worked if there is agreement between the employer and the majority of employees concerned and certain safeguards are met. Where ordinary hours are between 8 and 10 in a day the arrangement of hours will be subject to the agreement of the employer and the majority of employees concerned. The expression used in 27.3(c) is quite different from the expression used in 27.2. I am satisfied that majority approval is not required for the working of ordinary hours of up to 10 in any day but the arrangement of those hours, that is, matters such as the number of days in the week on which work is rostered and the common starting and finish times, does require majority agreement. Where work on any day exceeds the limits in 27.3(a) or 27.3(c) as applicable then overtime rates apply because of Clause 30.3 which provides that each day stands alone.

[8] In the circumstances of this case Mr Kuppe says that there has been no process of achieving majority agreement for the arrangement of ordinary hours which are regularly up to 10 hours in a day. ISS did not challenge Mr Kuppe’s statement. However, the consequence of this is not that employees are entitled to overtime for work more than 7.6 or 8 hours in a day. Clause 27.1 clearly allows for up to 10 hours to be worked without the payment of overtime. Overtime must be paid after 10 ordinary hours work in a day and also after 38 ordinary hours work in a week. If ISS is paying Mr Kuppe overtime in these circumstances the payment is consistent with the Award requirement. The consequence of the failure to gain majority agreement for the arrangement is that ISS may be operating its roster in breach of the Award and to avoid further breach may need to reach agreement with the majority of WSOs concerning the arrangement of working hours.
[9] My Recommendation as the resolution to this aspect of the dispute is set out in the immediately proceeding paragraph.

Is the correct classification of the WSO level 3 as asserted by the company or a higher level as asserted by the Applicant?

[10] The WSO is responsible for the effective implementation of works safety policies and procedures to ensure that works on the airfield are conducted safely and that the works do not compromise overall airfield safety or environmental controls. The main duties of the WSO are to escort contractors who are engaged in construction activity airside at the airport to and from the site and to monitor their work whilst airside at the airport to ensure that they do not stray outside of the designated works area and that their work does not interfere with the safe operation of the airport and the movement of aircraft in particular. To be a WSO the person must have a drivers licence, ASIC holder and police check and then must complete four weeks of training conducted at the airport. That training is updated by 12 hours on line training each year. Before a WSO can perform the full range of duties including access to taxiways they require a period of at least three months on the job experience.

[11] ISS also employ Airside Safety Officers (ASO). These employees are responsible for managing the work of the contractors on site and ensuring that it is in accordance with the agreed works plans. The Airside Safety Officers direct the work of the WSOs. If the WSO identifies a problem which may affect safe operations they will consult the Airside Safety Officers. However, the WSOs are expected to be able to carry out their duties without close supervision by the Airside Safety Officers. The ASOs are responsible for briefing those involved in construction works on safety conditions consistent with the Method of Working Plan and for authorising the closing and reopening of works areas. The ASOs not the WSOs are responsible for work inside the runway strip. The WSOs can access the aprons and taxiways but not the runway strip.

[12] The WSOs and the ASOs work together to complete different parts of the Works Safety Officer role as defined by the Civil Aviation Safety Authority Manual of Standards.

[13] When construction work is finished the Airside Safety Officer will check that the area is safe for aircraft movement. This includes checking that excavations have been back filled in accordance with specifications. The ASO not the WSO is responsible for ensuring that the area is safe for aircraft operations at the end of works. However, the WSO is expected to be alert and report any issues or hazards they observe and to be aware of excavation requirements and other inspection requirements carried out by the ASO. They are expected to remove foreign obstacle debris identified in the airside area.

[14] For the WSO to be able to work effectively requires familiarity with a number of different policies and procedures and permits. This includes: safety and security procedures for contractor access to the airfield, 2 way radio procedures, procedures for correct marking and lighting of vehicles, correct access routes, driving rules airside, correct marking of work site and other safe working rules, permits for excavations, ensuring plant, equipment and bins are secured and procedure for shielding of lighting. The WSO requires some understanding of the Method of Works Plan for particular construction works. The ASO is responsible for the correct marking of the works site area but the WSO needs to understand the marking. The WSO needs to be familiar with those roadways which are not suitable for overweight or oversized vehicles. When escorting vehicles airside they will monitor the radio controlling aircraft movements so that they can avoid disrupting those movements. WSO are required to document and report matters according to policy and procedure including log books, vehicle checks, use of electronic booking system, and report of incidents.

[15] The relevant Award definitions are:

“B.3 Ground services officers

B.3.1 Ground services officer Level 1

Employees perform a broad range of tasks with close guidance, using established routines, methods and procedures which require the application of basic skills.

A driver’s licence is required for employment at this level.

This is the entry level. Initially tasks performed are of a simple/routine nature under close guidance.

(a) Typical Level 1 duties:

(i) General labouring

• including in support of other skills.

(ii) Garbage collection

• collect garbage within airport grounds and dispose of same.

(iii) Cleaning

• perform minor cleaning functions, excluding domestic cleaning.

(iv) Traffic duties

• perform general traffic control duties as directed.

(b) Typical equipment and machinery used at Level 1:

• all hand-held tools;



• powered post-hole digger;



• hand-held lawn mowers;



• concrete saw;



• vibrating plate;



• footpath sweeper;



• concrete and asphalt saw;



• tractors;



• multi-tyred roller;



• a line-marker;



• chain saw;



• truck over 3 tonne;



• water and chemical tanker; and



• wheeled tractor over 75 kW power.

B.3.2 Ground services officer Level 2

Employment at this level requires an employee to be proficient in Level 1 and 2 duties as specified by local agreement.

(a) Typical Level 2 duties:

(i) Traffic management

• Control traffic as per airport by-laws.



• Conduct patrols.



• Issue infringement notices.

(ii) Painting

• Including but not limited to taxiway, runway and apron marking, gables, cones, gates and signs.



• Excluding buildings and signwriting.

(iii) Security

• General surveillance (comprising both patrols of airport and routine observation of events and conditions) and prompt, accurate reporting of situations as appropriate to fellow employees and supervisors and other relevant parties.



• Basic airport security training course, including knowledge of airport security plan procedures and guidelines.



• Control and operate surveillance monitoring systems for car parks, gates, aprons, public areas, etc.



• Report all security incidents.

(iv) Mowing

• Carry out mowing in landside and airside areas (ride-on mower, not tractor).

(v) Concrete work

• Including simple formwork, mixing, laying and finishing.

(vi) Herbicide

• Carry out application of herbicides.

(vii) Aerodrome emergency procedures

• Participate in emergency exercises.

(viii) Radio procedures

• Proficiency in operational and non-operational radio procedures consistent with the most efficient completion of duties at Level 2.

(ix) General

• Liaise with other employees on duty.



• Assist/direct general public and other airport users.



• Project a good image for the employer.

B.3.3 Ground services officer Level 3

Employment at this level requires an employee to be proficient in Level 1–3 duties as specified by local agreement.

(a) Typical Level 3 duties:

(i) Asphalt pavement work

• Repair and maintenance of existing surfaces.

(ii) Maintenance and limited repair of a range of relevant equipment, including but not limited to plant, gates, fences, pipework, hoses, not requiring trade qualifications.

• Report equipment failures or deficiencies.

(iii) Security

• Patrol of airside/landside security barriers.



• Surveillance of airside/landside barriers.



• Control airside access and egress.



• Patrol all airport buildings and facilities to ensure security is maintained.



• Apron escorts as appropriate in the local context.

(iv) Tractors

• Operate tractors with attachments landside and airside under safety supervision.

B.3.4 Ground services officer Level 4

Employment at this level requires an employee to be proficient in Level 1–4 duties as specified by local agreement.

(a) Typical Level 4 duties:

(i) Security

• During security incidents liaise with and provide back up as required both to other employees and to relevant parties as advised locally.



• Advanced security training required.

[B.3.4(a)(ii) varied by PR994515 from 01Jan10]

(ii) Earthmoving and general

• Proficient in the operation of a wide range of general plant and equipment.



• Does not require safety supervision when operating airside, consistent with the most efficient completion of duties at Level 4.

(iii) Airport lighting

• In the absence of alternate maintenance arrangements, carry out routine low voltage lamp and lens replacement.

(iv) Training

• Assist with training of less experienced staff.

B.3.5 Ground services officer Level 5

Work is generally performed with guidance.

Employment at this level requires proficiency in duties at Levels 1–5 as specified by local agreement.

(a) Typical level 5 duties:

• Supervision and training of Levels 1–4 employees.



• Utilising a level of accredited safety skills.



• More complex operational work.



• Operation of heavy plant and equipment, and sewerage treatment plant.



• Levels 1–5 duties.



• Assist in the execution of Airport works programs.



• Incidental escorts and minor contract supervision.



• Leading hand(s) supervisory duties.

(b) Typical equipment and machinery used at Level 5:

• Fork-lift.



• Front end loader/backhoe.



• Grader.



• Runway sweeper.



• Dozer.

B.3.6 Ground services officer level 6

Employment at this level requires an employee to be proficient in duties ranging to and including Level 6 duties as specified by local agreement.

[B.3.6(a) varied by PR529163 ppc 27Sep12]

(a) Typical Level 6 duties:

• Prepare and report on activities.



• Conduct bird counts.



• Overseeing of ground running of aircraft.



• Arrange and assist with removal of fuel and oil spills.



• Conduct surveys of minor nature (e.g. set out level grids, maintain design levels during civil construction works, set out simple curves).



• Be able to read and interpret plans for services and civil construction work.



• Have a good working knowledge of rules, regulations pertaining to work duties (e.g. RPA’s, airport technical manual, Civil Aviation Orders (CAO’s) and Occupational Health and Safety (OH&S)).



• Prepare correspondence, reports and records on matters relating to general maintenance.



• Develop and implement the airport maintenance program and determine work priorities and allocation of staff and equipment resources on Group 2 and 3 airports.



• Control of Method of work plans (MOWP’s) of minor complexity.



• Liaison with air traffic services, airport users and contractors.

B.3.7 Ground services officer Level 7

Employment at this level requires an employee to be proficient in duties ranging and including Level 7 duties as specified by local agreement.

(a) Typical Level 7 duties:

• Airport safety inspection, removal of obstacles, dispersal of birds, escort duties, monitor airside contractor movement.



• Raising of NOTAMS (countersigned if applicable).



• Liaison, co-ordination and direction in relation to method of work plan.



• Perform runway visual range assessments.

• Investigate and act on bird hazards.



• Marshalling of aircraft.



• Be proficient in procedures and participate in airport emergency procedures and exercises as required.



• Co-ordination of airside safety and security in the event of an emergency.



• Monitor aircraft parking.



• Assist in the administration of airport ground and building maintenance work programs, determine job priorities and the composition of maintenance units required for specific tasks.



• Exercise delegations.



• Develop and implement the airport maintenance program and determine work priorities and allocation of staff and equipment resources accordingly.



• Opportunity must be provided for employees to undertake further training in appropriate Level 8 duties and to commence studies for a supervision certificate or equivalent.”

[16] Escort duties are referred to at Level 3, Level 5 and Level 7. The duties listed at a particular classification are “typical duties”. The list is not exhaustive and there is no requirement for all duties to be performed to be classified at a particular level. The overall character of a particular classification level needs to be considered in the context of the overall career structure. Level 5 in this Award is the “standard rate”, that is, the level which broadly corresponds to the trades or C10 level.

[17] The reference to escort duties at Level 3 is “Apron escorts as appropriate in the local context.” It appears under the heading of the type of work “security”. It appears alongside the following other related duties: Patrol of airside/landside security barriers, surveillance of airside/landside barriers, control airside access and egress, and patrol all airport buildings and facilities to ensure security is maintained. In my view this is the type of work performed by the WSO. The WSO is essentially engaged in security work. They control access and egress of the contractors when airside and they conduct patrol and surveillance of the contractors’ activity when airside to ensure safety and security is maintained. The tasks are not exactly as set out at level 3 under the heading of security and the escorts they conduct are not just on the aprons but are also on taxiways but the character of the work is similar.

[18] The reference at Level 5 is to “Incidental escorts and minor contract supervision”. The WSOs are not responsible for contract supervision. This is the job of the Airside Safety Officers. Escorts are not incidental to the work of the WSO it is central to their work. The other duties at Level 5 either require a level of supervisory responsibility or a higher technical level such as the operation of heavy machinery or other licenced equipment or more qualified work such as survey work or work of higher responsibility directly related to aircraft safety such as bird counts and overseeing the ground running of aircraft.
[19] The reference at Level 7 is to “airport safety inspection, removal of obstacles, dispersal of birds, escort duties, monitor airside contractor movement”. The other duties are work with high levels of responsibility such as “raising of NOTAMS (countersigned if applicable); liaison, co-ordination and direction in relation to method of work plan; perform runway visual range assessments; investigate and act on bird hazards; marshalling of aircraft; co-ordination of airside safety and security in the event of an emergency.” Method of work plans are required for all construction work airside. The WSO may see the method of work plan but they are not responsible for liaison, coordination or direction in relation to the method of work plan. The WSO does not have the level of responsibility involved in the marshalling of aircraft or coordination of airside safety. These are higher responsibilities than those of the WSO.

[20] Level 3 is the best fit of the classifications which refer to escort duties. I accept that the WSO job is very important and requires a high level of diligence. The policies and procedures with which the WSO needs to have familiarity have a degree of complexity. The escort and other duties of the WSO extend beyond the apron to taxiways where the risks and responsibilities are greater. These are factors which suggest a higher level classification than Level 3. For the reasons discussed above the WSO does not meet the requirements for Level 5. However, the requirements of Level 4 may be met.

[21] When Level 4 is examined the typical duties in respect to the security area are: “During security incidents liaise with and provide back up as required both to other employees and to relevant parties as advised locally” and “Advanced security training required”. The training in the more complex policies and procedures which are relevant to the WSO work may fit the description of “advanced security training” which is required for the work. The WSOs are not security workers like security guards. Their focus is not security against theft or violence or control of entry and exit to the site but rather security against breach of policy or procedure which might compromise the health and safety of aircraft and other airport workers and users and the integrity of the airport infrastructure. To provide such security requires an understanding of a considerably wider and more complex set of policies and procedures than would apply to security control of entry and exit to the site. Mr Kuppe drew my attention to the manual which is used for the WSO work. ISS provided confidential access to the manual and I have examined the relevant parts. WSOs are required to undertaking training for these more complex policies and procedures in the environment of airside construction work. They are also required to undertake refresher training every year.

[22] Basic security control of entry and exit is covered by Level 2. Escort duties on the apron are one of the more complex security duties which justify Level 3. However, the escort duties of the experienced and trained WSO go beyond apron escorts to include control of the security of work on taxiways. WSOs with less experience are not permitted to work on the taxiways.

[23] I am satisfied that the classification which best fits the work of an experienced WSO such as Mr Kuppe is Level 4. It is my Recommendation that as the resolution to the dispute Mr Kuppe be reclassified to Level 4.

Conclusion

[24] The parties have agreed pursuant to the disputes resolution procedure to accept my Recommendation as the resolution to the dispute. In respect to the overtime issue the ordinary daily hours before overtime is applicable is 10. However, the company needs to ensure that the arrangement of work is subject to consultation and agreement between the employer and the majority of employees. In respect to the classification issue the appropriate classification for the work of Mr Kuppe is Level 4 in the Airport Employees Award 2010.

COMMISSIONER

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