Mr Samuel Edwards v Certis Security Australia Pty Ltd - [2023] FWC 1378

[2023] FWC 1378

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Mr Samuel Edwards
v

Certis Security Australia Pty Ltd

(C2023/1950)

COMMISSIONER PLATT

ADELAIDE, 3 AUGUST 2023

Dispute in relation to classification structure under the Security Services Industry Award 2020

On 27 January 2022, Mr Samuel Edwards (the Applicant) made an application for the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (the Act) concerning his classification under the Security Services Industry Award 2020 (the Award) by his employer, Certis Security Australia Pty Ltd (Certis or the Respondent).

Mr Edwards contends he should be classified as a Level 4 Security Officer under Schedule A.4 of the Award. The Respondent maintained that Mr Edwards was correctly classified as a Level 2 Security Officer under Schedule A.2 of the Award.

Clause 30 of the Award contains the Dispute Resolution process:
30.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
30.3 If the dispute is not resolved through discussion as mentioned in clause 30.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
30.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 30.2 and 30.3, a party to the dispute may refer it to the Fair Work Commission.
30.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
30.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
30.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 30.
30.8 While procedures are being followed under clause 30 in relation to a dispute:
(a) work must continue in accordance with this award and the Act; and
(b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
30.9 Clause 30.8 is subject to any applicable work health and safety legislation.

The matter was unable to be resolved by Conciliation and the parties agreed to my determining the dispute by Arbitration. There was no suggestion that the pre-arbitration requirements contained in Clause 30 of the Award had not been met.

Whilst this decision only has application to the work performed by Mr Edwards, in so far as other Security Guards engaged by the Respondent at the Tea Tree Plaza site perform…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 1378
Decision Date: 3 AUGUST 2023

CaseChat Overview and Summary

The Fair Work Commission heard a dispute between Mr Samuel Edwards and Certis Security Australia Pty Ltd regarding Mr Edwards' classification under the Security Services Industry Award 2020. Mr Edwards, employed as a Security Guard, argued for classification as a Level 4 Security Officer, while the employer maintained his classification as a Level 2 Security Officer was correct. The Commission was tasked with determining whether Mr Edwards' duties justified a higher classification.

The Commission examined the duties and responsibilities of Mr Edwards, comparing them against the classifications outlined in the Award. The evidence presented included witness statements and various documents related to Mr Edwards' role. The analysis focused on whether Mr Edwards' duties, such as patrolling, responding to incidents, and using security systems, aligned more closely with the requirements of a Level 2, 3, or 4 Security Officer.

The Commission concluded that Mr Edwards' duties were consistent with those of a Level 2 Security Officer. While Mr Edwards performed tasks that required a certain level of skill and responsibility, these did not meet the higher standards required for a Level 3 or 4 classification. Specifically, Mr Edwards' duties did not involve the advanced computer skills, higher-level communication, or independent operation that would warrant a Level 3 or 4 classification. Instead, his work, though competent and diligent, aligned with the expectations of a Level 2 Security Officer, who works under general supervision and exercises good interpersonal communication skills.

The Commission's decision was based on a detailed examination of the evidence and a comparison of Mr Edwards' duties with the classification criteria set out in the Award. The Commission found that Mr Edwards' role did not meet the higher threshold for Levels 3 or 4, confirming his classification as a Level 2 Security Officer.

Orders