Mr Samuel Edwards v Certis Security Australia Pty Ltd
[2023] FWC 1378
•3 AUGUST 2023
| [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 the same duties as Mr Edwards, it may inform the determination of the correct classification of those persons.
On 21 April 2023 the parties were directed to submit witness statements, material to be relied upon and submissions. This material was compiled into a digital hearing book and distributed to the parties prior to the hearing.
The hearing was conducted in person in Adelaide on 29 May 2023.
The Applicant was self-represented, the Respondent was represented by Ms Anna Wells of Counsel, permission having been granted pursuant to s.596(2)(a). The hearing was conducted as a determinative conference in order to mitigate my decision to allow the Respondent to be represented by a lawyer.
The question to be determined is whether Mr Edwards’ duties entitle him to be classified as a Level 4 under the Security Services Industry Award 2020, I have also considered if Mr Edwards duties permit his classification as a Level 3 employee.
The relevant Award Classifications contained in the Award are reproduced below:
Schedule A – Classification Definitions
A.1Security Officer Level 1
A.1.1A Security Officer Level l:
(a)is responsible for the quality of their own work subject to general supervision;
(b)works under general supervision, which may not necessarily be at the site where the officer is posted, either individually or in a team environment;
(c)exercises discretion within their level of skills and training; and
(d)assists in the provision of on-the-job training.
A.1.2Indicative of the tasks that an employee at this level may perform are the following:
(a)watch, guard or protect persons, premises or property at sites or locations where the complex use of computer technology is not required;
(b)basic 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)be stationed at an entrance to, or exit from, premises or a property with principal duties including the control of movement of persons, vehicles, goods, or property coming out of, or going into, the premises or property, including to ensure that the quantity and description of goods being carried on a vehicle is in accordance with the requirements of the relevant document or gate pass;
(d)respond to basic fire or security alarms at their designated post;
(e)in performing the duties referred to in clauses A.1.2(a) to A.1.2(d) the officer may be required to use electronic equipment such as hand-held scanners and simple closed circuit television systems utilising basic keyboard skills that do not require data input;
(f)provide safety induction to employees, contractors or visitors to the site; and
(g)control access to, and exit from, an airside security zone or landside security zone at an airport.
A.2Security Officer Level 2
A.2.1An 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.
A.2.2A 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 or matters.
A.2.3Indicative of the tasks that an employee at this level may perform are the following:
(a)duties of securing, watching, guarding, protecting as directed, responding to alarm signals (including attendances) and, when not alone, minor non-technical servicing of ATMs, not including cash replenishment;
(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 2 or more separate establishments or sites in a vehicle, including where operated by the same business;
(d)monitor and respond to electronic intrusion detection or access control equipment terminating at a visual display unit or computerised printout (except for simple closed circuit television systems), not including complex data input into a computer;
(e)monitor and act on walk-through electromagnetic detectors, or monitor, interpret and act on screen images using x-ray imaging or observation equipment, including in or in connection with airport security zones;
(f)operate a public weigh-bridge;
(g)record 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.
A.2.4A Security Officer Level 2 may be required to perform duties of a Security Officer Level l that are not designed to promote deskilling.
A.3Security Officer Level 3
A.3.1A 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.
A.3.2A 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.
A.3.3Indicative of the tasks that an employee at this level may be required to perform are the following:
(a)control of movement of persons, vehicles, stock or 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 or 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, for example, Microsoft Excel and other similar computer programs;
(d)provide safety induction to employees, contractors or visitors to a site; and
(e)monitor and act on walk-through electromagnetic detectors, or monitor, interpret and act on screen images using x-ray imaging or observation equipment, including in or in connection with airport security zones.
A.3.4A Security Officer Level 3 may be required to perform duties of Security Officers at Levels 1 and 2 that are not designed to promote deskilling.
A.4Security Officer Level 4
A.4.1A 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.
A.4.2A 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.
A.4.3Indicative of the tasks that 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 monitoring centre or at a particular location;
(b)keyboard operation to alter the parameters within an integrated intelligent building management or security system, including operating computer programs that have the ability to lock or unlock doors, program access cards, audit door access by individuals as well as recording the time and date of access; and
(c)co-ordinate, monitor or record the activities of security officers utilising a verbal or computer based communications system within a monitoring centre including in or in connection with an airport security zone.
A.4.4A Security Officer Level 4 may be required to perform duties of security officers at Levels 1, 2 and 3 that are not designed to promote deskilling.
Clause 2 of the Award also contains the following relevant definitions:
first response means a Security Officer who, on arriving early to a significant incident or matter, assumes immediate responsibility for managing the incident or matter until appropriate specialised personnel arrive.
monitoring centre means a facility that remotely monitors intruder alarm systems (in compliance with AS 2201.2, Intruder alarm systems, Part 2: Monitoring centres) from sites that are not co-located with the facility and provides specific responses that do not require any employee working at the centre to physically attend the location of any alarm.
At the conclusion of the hearing the parties expressed a desire to make written submissions. The Respondent provided written submissions on 9 June 2023 and the Applicant replied to those submissions on 16 June 2023.
Principles of Award Interpretation
This matter requires that I determine the duties performed by Mr Edwards and then contrast those findings against the Award classification structure.
In dealing with the construction of awards in Kucks v CSR Limited,[1]Madgwick J made the often-repeated observation that:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”
In City of Wanneroo v Holmes[2] the Court observed “…..It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities“
The current principles relevant to the interpretation of Awards were summarised by French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union[3].
“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken”.
These settled principles of Award interpretation[4] were recognised by a Full Bench of the Commission in Fresh Cheese Co (Aust) Pty Ltd v Viceconte, Franca & Condello, Rosario (Ross)[5] and the Federal Court in United Voice v Wilson Security Pty Ltd.[6]
The Evidence
The Respondent provides Security services to Scentre Group at the Tree Plaza shopping complex in the north-eastern suburbs of Adelaide. Mr Edwards is engaged and performs the duties of a Security Guard at that location.
The Applicant provided witness statements from himself and Mr Jack McDonough-Stephens. Both gave evidence.
Two additional witness statements were submitted by the Applicant from a Mr Millar and Mr Osborne but withdrawn at the hearing. I have not had regard to those statements.
With respect to the evidence of Mr McDonough-Stephens I make the following observation. Mr McDonough-Stephens rarely worked in the same location as the Applicant. When they worked at the same time, one was normally in the ‘Security Office’ whilst the other conducted patrols. On that basis the opportunity for Mr McDonough-Stephens to observe the work performed by the Applicant (other than audit, downloading CCTV footage and remotely opening doors) was limited.
The Respondent submitted witness statements from Mr Greg Shaw (National Manager HR), Mr Michael Gucic (State Manager VIC/TAS/SA), Mr Chee Hong Koh (State Operations Manager) and Mr Peter Harms (Client Services Manager). All of these persons gave evidence.
Mr Shaw’s exposure to the Tea Tree Plaza site was limited to a single site visit which occurred on 14 June 22 and was for a maximum of 4 hours. A subset of this time was spent with Mr Edwards. In my view this limited exposure to the work site (and even more limited observation of the work performed by the Applicant) limits the weight to be afforded to that portion of Mr Shaw’s evidence.
Mr Harms gave evidence of the minimum requirements for persons to work in Control Rooms. As it turned out these requirements applied in the State of Victoria and had no application to the work performed at the Tea Tree Plaza site. Mr Harms was unaware of the South Australian requirements to work in a control room. Mr Harms evidence on this topic was of little assistance.
Mr Koh was an impressive witness with a good understanding of the operation of the Tea Tree Plaza site and the Respondent’s supervision and escalation processes. His evidence was supported by the escalation processes contain ion the supplied policy documents. In so far as the Applicant’s evidence was inconsistent with Mr Koh’s evidence, I prefer Mr Koh’s account.
A number of documents prepared by Mr Edwards during his duties were sought to be submitted by Mr Edwards. Owing to Scentre Group and/or the Respondent refusing to provide same other than by subpoena, a direction was made to provide the documents. The documents included a copy of the Commercial Services Agreement between the Respondent and Scentre Group, Policies and Procedures and examples of reports prepared by Mr Edwards. As requested by the Respondent and pursuant to s.594 of the Act, I have made an order preventing the publication and further dissemination of those documents as a result of their commercial sensitivity (in respect of the Services Agreement) and matters which might reveal the security protocols (Scentre Group policies and procedures) and the provision of private information (contained in the example reports).
The examples of Mr Edwards’ reports are relevant to the interpersonal and communication skills required of Mr Edwards.
The Commercial Services Agreement did not assist me in determining Mr Edwards appropriate Classification Level.
I have also considered the written submissions of Mr Edwards and the Respondent.
What are the differences between Classification Levels 2, 3 and 4 of the Award?
I now turn to the relevant differences between Classification Levels 2-4 of the Award and my findings from the evidence as it relates to them.
Patrol Functions
Paragraph A.1.2 in the Level 1 Classification contains a description of what might be described as the general ‘patrol’ functions of a Security Guard. Whilst some of those activities are not relevant (e.g Airport Functions) the evidence confirmed that these were the duties performed by Mr Edwards. The Level 2 classification builds upon these Level 1 duties.
As part of his role Mr Edwards physically patrolled the common mall area, carparks and back of house of the Tea Tree Plaza site. During his patrol duties Mr Edwards was required to observe and/or check the safety and security of the premises, fires doors and entrances, plant and equipment (including fire safety equipment) and patrons. Mr Edwards was required to respond to a variety of incidents including as a ‘first response’ as defined in the Award. The frequency and/or severity of incidents to which a Security Guard responds does not form part of the classification structure criteria. Acting as first response to security incidents or matters is a Level 2 skill.
Other than dealing with a first response incident, Mr Edwards patrol activities are highly structured and do not require the exercise of discretion (which is a requirement of Level 3).
During the day Mr Edwards has access to support from other Security Guards and/or his Supervisor.
Mr Edwards also used simple CCTV systems such as that contained in the Security Office to monitor areas. There was no evidence that Mr Edwards was required to program or input data to the CCTV systems. I have dealt with the searching and retrieval of video footage separately.
Mr Edwards was responsible for the quality of his own work which is a Level 2 requirement.
In my view Mr Edwards patrol activities are consistent with that contained in Level 2 of the Award recognising that as a result of his experience he operates at a higher level than a Level 1 employee.
Level of Supervision
A Level 2 employee works from complex instructions and procedures under general supervision, which may not necessarily be at the site where the officer is posted. A Level 3 employee similarly works from complex instructions and procedures under limited supervision but the option of supervision being provided off-site is not present. A Level 4 employee works individually or in a team environment under limited supervision which may not necessarily be at the site where the officer is posted.
Mr Edwards work was subject to onsite Supervision during the day, with off-site supervision after hours (generally after 6pm). Mr Edwards contended that Supervisors are onsite typically between the hours of 0800 to 1800, and are not onsite on public holidays, sick days, or annual leave days. Mr Edwards contended that during the overnight shift and public holidays Security Officers are on-duty and solely responsible for the centre without any supervision or additional officers. Mr Edwards appears to ignore the Award contemplation that Supervision may not necessarily be at the work site. The Award expressly contemplates the provision of remote Supervision and Support.
Mr Koh gave evidence that Security Guards have access to Supervisor and/or more senior managers via telephone with an escalation process in the event the immediate supervisor is unavailable. I am unable to find that Mr Edwards works without access to Supervision or that he operates under limited Supervision (which is a Level 3 requirement).
On-the-job training
The provision of on-the-job training is common to Levels 2-4 and is not a relevant factor.
Communication Skills
A Level 2 employee exercises good interpersonal communications skills. A Level 3 employee exercises good interpersonal and communications skills (I doubt that the inclusion of the word ‘and’ raises these requirements above that of a Level 2 employee). A Level 4 employee exercises high level interpersonal and communications skills.
The reports completed by Mr Edwards included the following:
· A 12 paragraph ‘affidavit’ of Mr Edwards in respect of an incident where he acted as first response on 2 January 2023. This affidavit provides an account of Mr Edwards observations, information provided to him by the person involved in the incident and Mr Edwards’ actions.
· A 13 paragraph ‘affidavit’ of Mr Edwards in respect of an incident where he acted as first response on 8 May 2023. This affidavit provides and account of Mr Edwards observations, information provided to him by the person involved in the incident and Mr Edwards’ actions including the taking photos of the incident and securing relevant CCTV footage.
· A copy of an 8 page ‘Incident Report’ which related to the incident described in the Affidavit of the same date (see above). The incident report appears to be a spreadsheet into which data is inserted by entering the factual information relevant to the incident. There is a provision to attach relevant statements, maps, CCTV footage and follow up information (in the case of injuries and/or property damage).
· A 12 paragraph ‘affidavit’ prepared by Mr Edwards concerning an incident in a Tenants concerning a ‘difficult customer’ which occurred on 1 March 2023. The affidavit contained an account of Mr Edwards observations and his interaction with the customer and that he had secured the relevant CCTV footage.
Mr Edwards was also required to record incidents using the Microsoft Office suite and an application called ‘Beakon’. This application prompts the user for information which is entered into the program. Mr Edwards also used the i-Audit software to check the results of fire equipment checks, door access and operation, safety signage and back of house checks. The i-Audit software provides questions which answer options in a multiple choice format. I accept that the use of Beakon and/or i-Audit systems includes recording or reporting security incidents or matters on a computer based system as described in Level 2.
The reports provided indicate that Mr Edwards role required him to record facts from his observations or information told to him as a result of his conversations with internal and external stakeholders and/or patrons. In my view this level of communication skills is consistent with the requirement of good interpersonal communications skills of a Level 2.
Mr Edwards is not required to interpret information, or contrast it with the application of policies or laws, or suggest remedial or future actions. It is for this reason that I do not believe the Mr Edwards is required to use high level interpersonal and communications skills as required by Level 4.
The Security Office
Mr Edwards and others described the room where he worked whilst not patrolling the shopping complex as a ‘control room’ and/or a ‘monitoring centre’, I have used the neutral term ‘Security Office’ in this decision.
Mr Edwards worked from the Security Office after 6.00pm that whilst another guard patrolled the Centre. Mr Edwards would then go on patrol after the other Security Officer returned. Mr Edwards and the other Guard rotated approximately hourly.
I was provided with a photograph of the room. The Security Office contained two office desks side by side. Under the desks appear to be two computers. The are 4 large computer monitors arranged in a cluster and a smaller screen on the left and right. The monitors display computer programs running in Microsoft Windows. There is a separate controller which appears to be a video controller with buttons and a gimbal. The CCTV interface allows recorded footage to be reviewed, and relevant portions extracted.
Whilst in this room Mr Edwards was able to complete reports, monitor the CCTV and door operating systems, operate the sub fire panel and search through recorded CCTV footage and extract relevant footage for reports.
Mr Edwards gave evidence of using a fire control sub-panel located in the Security Office. This panel cannot be seen in the photograph but was referred to in the evidence. The fire sub- panel is connected to a larger panel elsewhere in the Centre. It appears that the sub-panel allows some sensors to be reset and/or disabled as required. The monitoring of complex fire alarms is embraced by Level 3 of the Award. Level 2 is silent on this topic. On the evidence before me I am not persuaded that the fire sub-panel is of itself a complex fire system.
Mr Edwards also advised that he activated electronic doors using the ‘Security Commander’ system from the Security Office after establishing the bona fides of the persons seeking egress. Mr Edwards was not responsible for programming these systems. Mr Edwards activities in this regard appear to be consistent with the monitoring and respond to access control equipment terminating at a visual display unit, which forms part of the Level 2 classification level.
Mr Edwards activities with respect to CCTV footage appear to be restricted to viewing, selecting and extracting data relevant to an incident using a computer interface. Mr Edwards is not required to manipulate the CCTV data. In my view this is consistent with the requirements of Level 2.
The activities described in the evidence before me are not consistent with the definition of a ‘monitoring centre’ contained in the Award. A monitoring centre appears to refer to a central point for intruder alarm monitoring used in commercial premises and homes in lieu of attendance of a Security Guard. On that basis I am not persuaded that the activities in the Security Office result in it being a monitoring centre as described the Level 4 classification.
Apart from allowing egress using the Security Commander system whilst in the Security Office, Mr Edwards is not required to control of movement of vehicles, stock or 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 systems.
Whilst Mr Edwards operates a building security system whilst in the Security Office, he is not required to alter the parameters of that system.
Mr Edwards is not required co-ordinate, monitor or record the activities of security officers utilising a verbal or computer based communications system within a monitoring centre (as defined). This role appears to be performed by the Supervisor.
Conclusion
As outlined above, the question to be determined was whether Mr Edwards met the requirements of a Level 4 or Level 3 employee as outlined in Schedule A.4.1 of the Award.
Having considered the evidence and the requirements and indicative tasks for Levels 2-4 of the Classification Structure, I have reached the conclusion that the work performed by Mr Edwards supports him being classified at Level 2 and determine same.
COMMISSIONER
Appearances:
S Edwards the Applicant
A Wells for the Respondent
Hearing details:
29 May 2023
Adelaide, South Australia
Final written submissions:
Respondent 9 June 2023
Applicant 16 June 2023
[1] Kucks v CSR Limited (1996) 66 IR 182 at 184; [1996] IRCA 141 at [4-5].
[2] City of Wanneroo v Holmes (1989) 30 IR 362.
[3] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53].
[4] Kucks v CSR Ltd (1996) 66 IR 182; Re Wanneroo v Michael Lindsay Holmes [1989] FCA 369; and Amcor v Construction, Forestry, Mining and Energy Union and Ors [2005] 222 CLR 241.
[5] Fresh Cheese Co (Aust) Pty Ltd v Viceconte, Franca & Condello, Rosario (Ross)[2019] FWCFB 165.
[6] United Voice v Wilson Security Pty Ltd [2018] FCA 1215.
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