MSS Security Pty Ltd t/a MSS Security v United Workers' Union (108V)
[2020] FWCFB 1652
•27 MARCH 2020
| [2020] FWCFB 1652 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
MSS Security Pty Ltd t/a MSS Security
v
United Workers’ Union (108V)
(C2019/7843)
VICE PRESIDENT HATCHER | SYDNEY, 27 MARCH 2020 |
Appeal against decision [2019] FWC 8209 of Commissioner Gregory at Melbourne on 5 December 2019 in matter number C2019/462.
Introduction and background
[1] This is an appeal by MSS Security Pty Ltd (MSS) against a decision of Commissioner Gregory on 5 December 2019 1 (decision) made pursuant to s 739 of the Fair Work Act 2009 (FW Act) and clause 15, Settlement of Disputes of the MSS Security Victorian Enterprise Agreement 2017 (Agreement). The dispute the subject of the decision concerned whether four security officers employed by MSS at the gatehouse of the site of its client Thales in Bendigo were correctly classified by MSS at Security Officer Level 2 (Level 2) in the classification structure in the Agreement. The site in question is a secure defence manufacturing facility, and all entry and exit is via the gatehouse. The United Workers’ Union (UWU), which lodged the application for the Commission to deal with the dispute, contended that the employees should have been classified at Security Officer Level 3 (Level 3). In the decision, the Commissioner upheld the UWU’s position.
[2] In its appeal, MSS contends in summary that the decision was in error and should be quashed because the Commissioner:
• erred in his findings of fact about what duties the relevant security officers perform and how they perform their duties;
• erred by taking into account irrelevant considerations;
• erred failing to take into account, or have sufficient regard to certain evidence, and gave excessive weight to other evidence;
• misconstrued the Level 2 classification definition in the Agreement; and
• wrongly applied the “principal purpose” test.
[3] There is a dispute as to whether permission to appeal pursuant to s 604 of the FW Act is required. MSS submits that it is not because clause 15.3.6 of the Agreement provides for a right of appeal. The UWU contends otherwise. Clause 15.3.6 provides:
15.3.6 The decision of FWC will bind the parties, subject to any party exercising a right of appeal against the decision to a Full Bench.
[4] The classification structure in clause 20 of the Agreement provides for five “Security Officer”Levels, and is highly similar to the classification structure found in Schedule C of the Security Services Industry Award 2010. It is only necessary to refer to Levels 1, 2 and 3 in the Agreement, which are defined as follows:
“20 Classification Structure
20.1 Security Officer- Level 1
20.1.1 A Security Officer Level 1 is an employee who has completed at least a Certificate II in Security Operations so as to enable the employee to perform work within the scope of this level and who performs work to the level of their skills, competency and training.
20.1.2 A Security Officer Level 1:
a) is responsible for the quality of his/her own work subject to general supervision;
b) works under general supervision, which may or may not necessarily be at the site where the officer is posted, either individually or in a team environment;
c) exercises discretion within his/her level of skills and training; and
d) assists in the provision of on the job training.
20.1.3 Indicative of the tasks which an employee at this level may perform are the following:
a) watch, guard or protect persons and / or premises and / or property at sites / locations where the complex use of computer technology is not required;
b) Be stationed at an entrance/exit, where principal duties will include the control of movement of persons, vehicles, goods/property coming out of or going into premises or property, including vehicles carrying goods of any description, to ensure that the quantity and description of such goods is in accordance with the requirements of the relevant document/gate pass;
c) 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;
d) respond to basic fire / security alarms at their designated post;
e) in performing the duties referred to above the officer may be required to use electronic equipment such as hand-held scanners and simple closed circuit television systems utilising basic keyboard skills which do not require data input; and
f) provide safety induction to employees, contractors or visitors to the site.
20.2 Security Officer - Level 2
20.2.1 A Security Officer Level 2 is an employee who has completed at least a Certificate II in Security Operations so as to enable the employee to perform work within the scope of this level.
20.2.2 An employee at this level performs work above and beyond the skills of a Security Officer Level 1 and to the level of his/her skills, competence and training.
20.2.3 A Security Officer - Level 2:
a) works from complex instructions and procedures under general supervision which may or 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 or may not necessarily be on site;
e) is responsible for assuring the quality of his /her own work; and
f) is required to act as first response to security incidents/matters.
20.2.4 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 automatic teller machines (ATMs). Such work shall not be undertaken alone and shall not include cash replenishment at ATMs;
b) advanced 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) to 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 shall 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 equipment;
f) the operation of a public weigh-bridge by a Security officer;
g) recording and/or reporting security incidents or matters on a computer based system; and
h) may be required to perform the duties of a Security Officer- Level 1.
20.3 Security Officer - Level 3
20.3.1 A Security Officer Level 3 is an employee who has completed at least a Certificate II in Security Operations and is able to exercise the skills and possess the knowledge of the location where the employee is posted by the Company so as to enable the employee to perform work within the scope of this level under limited supervision which may or may not necessarily be at the site where the officer is posted.
20.3.2 A Security Officer Level 3 works above and beyond the skills of an employee at Level 1 and Level 2, and to the level of his/her skills, competence and training.
20.3.3 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
performs work independently under limited supervision either individually or in a team environment.
20.3.4 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;
d) provide safety induction to employees, contractors or visitors to the site; and may be required to perform the duties of a Security Officer - Level 1 and Security Officer - Level 2.”
The decision
[5] In his decision the Commissioner, after identifying the subject matter of the dispute and summarising the evidence of the witnesses, described the task involved in determining the dispute as follows:
“[72] Clause 20 of the 2017 Agreement sets out the classification structure. It involves an escalating level of skill, responsibility, authority and complexity of duty from the lowest level to the higher levels. There is also some commonality of tasks and functions which are carried out to varying degrees at each classification level, and there is inevitably some overlap between each level, with no definitive border or boundary between any two classification levels. There is also a description at each level of the skills and responsibilities required to be exercised at that level. This is followed by some examples of the indicative tasks an employee at each level may be required to perform.
[73] The task of establishing which is the correct classification level for the Security Officers at the Bendigo site accordingly involves having regard to the evidence and submissions regarding the work performed and the responsibilities undertaken. It is then necessary to make a comparison with the job descriptions and indicative tasks set out at each classification level...”
[6] The Commissioner then proceeded to make findings of fact concerning the work of the employees in question. He initially found as follows:
“[87] The evidence makes clear that the Bendigo site is relatively large and has a diverse range of facilities. The Security Officers work alone, and this requires them to exercise a degree of discretion in terms of how they carry out their responsibilities, given that they have limited immediate supervision or support available.
[88] It is also clear that there are a number of duties and responsibilities that the Security Officers can be required to carry out, and while some may only be performed infrequently, it is still necessary that they are familiar with what is required in the event that they need to be carried out.”
[7] The Commissioner then referred to a contest about the nature of computer-based tasks performed by the employees, and found:
“[89] Much emphasis has been the placed on the requirement to carry out computer-based tasks. UWU submits that these do involve a degree of complexity and in some cases do require the manipulation of data. MSS has attempted to downplay the significance of these requirements and submits that they only involve straightforward data entry. It also submits that there are still a number of paper-based processes. However, it is clear from the evidence that the preparation and issuing of ID cards, for example, involves a number of different computer-based processes and steps. There are also a range of other computer-based duties and responsibilities that have been identified in the evidence including:
• the loan register which is maintained on a Microsoft Excel spreadsheet;
• the MEX OPS for recording necessary maintenance and other issues that arise from time to time during the course of the shift;
• the control database of visitors and contractors working at the site which utilises Lotus Notes. This is a computer-based system which is used to record the site entry and departure of contractors and visitors;
• the HSE inductions register;
• the pool car register which is maintained on a Microsoft Excel spreadsheet.
[90] … the evidence also makes clear that the Security Officers are required to silence a fault alarm and identify the location of any fault alarms. Any actual fire alarms are also required to be recorded in ISOPRO. They are also required to respond to the fire panel when necessary. The Security Officers also assume the responsibility of controller at the site outside of normal business hours in relation to any emergency situations that might arise, and this is acknowledged by MSS to be a significant responsibility which is appropriately classified at Level 3.”
[8] The Commissioner also found that the employees:
• are required to have a significant degree of knowledge about the site, given its size and diversity, which is encompassed by the Level 3 classification; 2
• are required to work independently with limited supervision and consequently are required to exercise a significant amount of discretion; 3 and
• the Guard Post Orders relied upon by MSS as dictating how the employees are to perform their duties cannot necessarily be relied on to provide an accurate representation of how the employees carry out their work and provide only a rudimentary description of how they carry out their duties and responsibilities; 4
• the principal purpose of the employees’ employment was to perform a range of duties and responsibilities at the gatehouse which include both data entry, the manipulation of computer programs such as Microsoft Excel and also important responsibilities in relation to fire alarms and out of hours emergency situations. 5
[9] In relation to the last of these factual findings, the Commissioner noted that the classification definition for Level 2 makes no reference to work in a gatehouse or similar location in the list of indicative duties, unlike Level 3, and instead refers to work at other locations such as a shopping centre, nightclub or sporting or entertainment venues. The Commissioner also noted the qualification attached to gatehouse duties in the Level 3 definition, but made it clear that this was satisfied by this last factual finding. 6 He then concluded:
“[99] I am satisfied, in conclusion, that the work being carried out by the Security Officers at the THALES Bendigo site is most accurately reflected by the skills and responsibilities, and the indicative tasks, set out in the Security Officer Level 3 classification in the 2017 Agreement, and they should accordingly be classified at this level.”
Submissions
[10] MSS submitted that the Commissioner erred in six respects. First, it submitted that the Commissioner misconstrued the classification definition of Level 2 by finding that it did not encompass work in a gatehouse or similar location, but rather was concerned with other types of locations. These locations, it was submitted were only mentioned in the context of advanced crowd control duties, and the Level 2 definition was not confined to these but encompassed a broad range of security duties. The Level 2 definition also included the control of the movement of goods to and from premises and the use of non-complex computer technology, which implied the use of a gatehouse facility.
[11] Second, MSS submitted that the Commissioner erred in finding that the employees worked alone, since the evidence demonstrated that for the vast majority of the site’s operation they worked under the general supervision of an on-site Senior Security Officer (SSO). Nor did the employees exercise a significant amount of discretion. There was no evidence to support his nor was it even suggested by the UWU; rather the evidence showed that the employees worked closely from complex written instructions.
[12] Third, it was submitted that the Commissioner’s findings about the performance of computer-based tasks was in error, in that:
• the employees did not prepare and issue ID cards; only one did so and only rarely; and
• the employees did not manipulate computer programs (in the way discussed in Carnes v MSS Security Pty Ltd 7) but only performed printing, simple data entry and checking of online registers/databases.
[13] Fourth, MSS submitted that the Commissioner erred in finding that the employees monitored and operated building operation systems merely because they responded to fire alarms and the fire panel, which is auto-monitored.
[14] Fifth, MSS submitted that in finding that the employees are required to assume the role of controller at the site outside business hours in relation to emergency situations that might arise, the Commissioner erred by failing to consider that this was only required about six times per year, that employees performed this duty under the direction and supervision of Thales, and failed to consider the Guard Post Orders. Further, it was submitted, this task fell within the Level 2 duties.
[15] Sixth, it was submitted that the tasks which the employees were substantially engaged in were Level 2 tasks, namely control of movement duties and patrolling duties.
[16] The UWU submitted that MSS required permission to appeal because clause 15 implies that a member of the Commission should conduct the resolution of any dispute in accordance with the FW Act, given that the dispute resolution procedure did not posit any alternative to the known processes and procedures of the Commission. It further submitted that MSS had advanced no submission as to why permission to appeal should be granted and consequently permission should be refused given that appeal raised no issue of novelty and turned on issues of fact.
[17] As to the merits of the appeal, the UWU submitted that:
• the Commissioner was correct to place significance on the employees’ work at the gatehouse, which was work not referred to in the indicative tasks for Levels 1 or 2;
• the evidence demonstrated that employees performed the majority of their duties at the gatehouse;
• it was also significant, as the Commissioner found, that the employees performed computer work, since this was not referred to in the indicative tasks for Levels 1 and 2; and
• the findings of fact made by the Commissioner were reasonably open to him on the evidence, and no appealable error had been demonstrated in this respect.
Consideration
[18] We accept MSS’s submission that it does not require permission to appeal. Clause 15.3.6 confers in the clearest of terms an independent right of appeal. Accordingly our only task is to consider the merits of the appeal – that is, whether MSS has demonstrated that the decision is attended by appealable error.
[19] Before we turn directly to MSS’s six contentions of error, it is necessary first to consider the key characteristics of the classification structure in clause 20 of the Agreement and the task involved in applying the structure to the positions and work of the employees the subject of the dispute. In our view, there are three main features of the classification structure relevant to the determination of this appeal. The first is that each classification is defined by three elements: (1) a qualification and skills requirement; (2) a general description of the duties and responsibilities at the classification level; and (3) a list of indicative duties. It is plainly not necessary for all the indicative duties for a classification to be performed in order for an employee to be classified at a particular level. However, the purpose of statements of indicative duties in classification structures of this nature is to indicate when it is likely to be the case that a particular position meets the general description of duties and responsibilities in the second element of a particular classification. Thus, subject to what we say immediately below, where the indicative duties for a given classification are a significant element of a person’s position, that points to the position being one which involves the general duties and responsibilities for that classification unless there is some other disqualifying factor.
[20] The second is that the classification structure is a hierarchical one which, as the UWU described it, “cascades up” in terms of the duties required to be performed. As stated by the Commissioner in the decision, at each level of the structure beyond Level 1, an employee works above and beyond an employee at the previous levels and exercises the skills, and may perform the tasks, at the previous levels. That means that the mere fact that an employee may be required to discharge the general responsibilities or perform some of the indicative duties of a particular classification does not preclude them being properly classified at a higher level. To put this another way, the duties and responsibilities of an employee at a particular classification level include those of the lower classification levels.
[21] Third, the pay differences between the classifications are small. For Levels 1, 2 and 3, the ordinary-time hourly rates for existing employees as at the commencement of the operation of the Agreement were $21.26, $21.84 and $22.25 per hour respectively. For new employees at new sites, it was $20.65, $21.24 and $21.60 per hour respectively. The pay increment moving from Level 1 to Level 2 is less than 3 percent, and that for moving from Level 2 to Level 3 is less than 2 percent. That does not suggest that one needs to look for a significant qualitative change between the duties and responsibilities of one classification and the next; the changes involved are rather necessarily ones of fairly small degree.
[22] The Commissioner’s description of his task as involving assessing the evidence, making findings regarding the work performed and the responsibilities undertaken and then comparing this to the job descriptions and indicative tasks set out at each classification level seems to us to be unexceptional. In this case, it was not in dispute that the Thales site in Bendigo is a large and complex site secured by a perimeter fence and with a single access gate. The employees in question are primarily located at the gatehouse adjacent to the access gate, and they have immediate responsibility for the access of persons and vehicles to the site as well as a range of other duties. Outside of the hours of 8.00am to 4.00pm, they work without supervision on the site and act as security controller for the site. 8 It is also not controversial that their duties require the use of computer-based systems, and MSS did not challenge in its appeal the findings made by the Commissioner concerning the computer-based tasks performed by the employee in paragraph [89] of the decision except in relation to the extent to which they were involved in issuing ID cards.
[23] These uncontroversial matters appear to us to immediately point to the Level 3 classification being prima facie the applicable classification. As the Commissioner adverted to in paragraph [91] of the decision, one of the prerequisite skills for Level 3 (in clause 20.3.1) is the ability to “exercise the skills and possess the knowledge of the location where the employee is posted by the Company so as to enable the employee to perform work within the scope of this level under limited supervision which may or may not necessarily be at the site where the officer is posted”. This skill qualification is not contained in the classification definitions for Level 1 or 2. It bespeaks of a specialist knowledge of the security requirements of a particular site of significance and closely matches the requirement of the employees to maintain the security of the Thales Bendigo site and to do so without supervision for the greater proportion of their shift.
[24] Likewise, the indicative Level 3 duty of the “control of movement of persons, vehicles, stock and material at gatehouses” closely matches a fundamental aspect of the employees’ work. The reference to the performance of this function at a gatehouse, which is not contained in the Level 1 or 2 definitions, has significance because it necessarily implies a large or substantial site with a secure point of entry and exit. This duty is consistent with the broader skill prerequisite of specialist knowledge of a particular site to which we have just referred. This indicative duty has the additional element of “utilising monitoring and operating computer based systems requiring data input”, but it is difficult to see how the computer-based tasks identified by the Commissioner in paragraph [89] would not meet this description. There is a further reference in this indicative duty to the “manipulation of spreadsheet based computer programs”, but this should not be treated as requiring some sophisticated form of computer usage such as the programming of spreadsheet functions. On its ordinary meaning, “manipulate” means only to handle or control something in a skilful manner, and it seems to us that the capacity to navigate a spreadsheet program by inputting and extracting data would match this definition. It must be borne steadily in mind that existing Level 3 employees under the Agreement were entitled to be paid no more than $22.25 per hour as at its commencement and required no prior training qualification other than a Certificate II in Security Operations. It is somewhat fanciful therefore to read the classification definition as requiring the exercise of advanced computer skills. In an earlier decision which concerned the highly similar classification structure in the Security Services Industry Award 2010, the Commission (Williams C) determined that “typical gatehouse duties” with computerised functions involving the use of equipment that “is not particularly complex, modern or complicated” fitted comfortably in the Level 3 classification. 9 That is consistent with the approach we take.
[25] We turn now to MSS’s six contentions of error in its submissions. As to the first contention, we do not accept that by placing significance on the performance of work by employees at the gatehouse and linking this to the Level 3 indicative duty in clause 20.3.4(a), the Commissioner misconstrued the Level 2 classification definition as excluding gatehouse duties. MSS’s contention that Level 2 encompasses gatehouse duties through its incorporation of the Level 1 indicative duty “Be stationed at an entrance/exit, where principal duties will include the control of movement of persons, vehicles, goods/property coming out of or going into premises or property, including vehicles carrying goods of any description, to ensure that the quantity and description of such goods is in accordance with the requirements of the relevant document/ gate pass” (clause 20.1.3(b)) is flawed in at least three respects. The first is that it seeks to defy the text of the Agreement by failing to place any weight upon the use of the word “gatehouse” in Level 3 and its absence from Levels 1 and 2. The use of this word has particular significance in the context of Level 3 as a whole for the reasons we have explained. By contrast, the reference in Level 1 to merely being “stationed at an entrance/exit” implies a less permanent and substantive arrangement. Second, any duty in Level 1 is performed “under general supervision”, and that does not match what the employees in this case do. Third, this Level 1 indicative duty relied upon by MSS does not, by comparison with Level 3, require the performance of computer-based functions.
[26] The second contention, which alleges error in the Commissioner’s factual findings that the employees “work alone” and exercised “a significant amount of discretion”, is rejected. MSS’s own submissions, as recorded in paragraphs [39] and [45] of the decision, conceded that the employees worked alone. This was a significant matter because the Level 2 indicative duty of “securing, watching, guarding, [and] protecting as directed...”, which MSS relies upon as descriptive of the work performed by the employees, is subject to the condition that “[s]uch work shall not be undertaken alone...”. As to discretion, it was expressly contended by the UWU in its submissions that the employees exercised a “significant amount of discretion”. This contention is recited in paragraphs [12] and [75] of the decision. The conclusion reached by the Commissioner that this contention should be accepted was founded, as paragraphs [87] and [91] make clear, upon the fact conceded by MSS that the employees worked alone for the greater part of the day and accordingly worked with limited supervision. That was a conclusion which we consider was reasonably open to be made.
[27] The third contention has two elements. As to the first element, there was no finding by the Commissioner that all the employees prepared in the sense of “created” ID cards as well as printing and issuing them. The UWU’s principal witness, Peter Watkinson, said in his witness statement that since September 2013, only the senior guard (himself) was allowed to create and issue photo IDs, but that all the guards printed and issued photo ID cards when required. The finding made by the Commissioner, in paragraph [89], was only that it was clear from the evidence that the preparation and issuing of ID cards involved a number of different computer-based processes and steps. This contention of error is therefore based on a “straw man” and has no substance. The second element of the contention is that the employees did not “manipulate” computer spreadsheets. We have already rejected this proposition above. MSS relied upon a decision of a single member of the Commission (Asbury DP), Carnes v MSS Security Pty Ltd, 10 that concerned the same classification structure, in which it was determined that the function of data entry was a Level 2 indicative duty and did not constitute manipulation of data under Level 3.11 That was a decision which turned on its own facts, and it is clear on the basis of the Commissioner’s findings that the employees here did more than straightforward data entry. We note that in the Carnes decision, the Deputy President went on to say: “This work does not involve manipulation of the spreadsheet by changing its parameters or creating new formulae within the spreadsheet”.12 MSS relied upon this sentence as constituting the essential criteria for “manipulation of spreadsheet based computer programs” in clause 20.4.3(a). We do not accept this; the matters identified by the Deputy President might be examples of ways in which a spreadsheet could be manipulated, but we do not consider that the creation of algebraic formulae in order to program a computer spreadsheet should be regarded as a necessary element to be classified as Level 3 under the Agreement. It is sufficient, as clause 20.3.3(c) makes clear, that a Level 3 employee “exercises computer skills at a higher level than Level 2”.
[28] The fourth contention of error proceeds on the basis of an alleged finding of fact which the Commissioner did not actually make. The Commissioner did not find that the employees monitored and operated building operations systems by reason of them “monitoring fire panels”; his actual findings in paragraphs [90] and [97] of the decision were that they were required to silence fault alarms, identify the location of any fault alarms, record any faults alarms in ISOPRO and respond to the fire panel when necessary. These findings were supported by MSS’s evidence as well as that of the UWU.
[29] The fifth contention does not actually allege and error in the Commissioner’s finding in paragraph [90] of the decision that the employees “assume the responsibility of controller at the site outside of normal business hours in relation to any emergency situations that might arise”, but seeks to minimise the importance of this finding by reference to various matters. However, as the Commissioner noted in paragraph [90], MSS’s own witness Mr Michael Brodie accepted that this was a Level 3 duty, and relied on other matters to weigh in favour of an overall Level 2 classification. That the function is only exercised about six times a year does not diminish the relevance or weight of this consideration: emergencies are by definition relatively rare, and readiness and capacity to respond to them when they arise seem to us to be an important feature of the employment.
[30] As part of this contention, MSS submitted that the Commissioner failed to have sufficient or any regard to the Guard Post Orders. There is no basis for this submission: the Commissioner expressly took them into account at paragraph [93] and made the specific finding that they could not necessarily be relied upon to give an accurate description of how the employees carried out their duties and responsibilities and contained only a “rudimentary” description of what was required without going into any detail. This finding, which was not challenged in the appeal, does not permit the demonstration of factual error in the decision by mere reference to the Guard Post Orders.
[31] The sixth contention again does not identify any specific error in the decision but is in substance merely an invitation for us to re-decide the case. Further, MSS’s submissions in respect of this submission are flawed in two respects – firstly, because they seek to ignore the significance of the employees performing work from a gatehouse and the relationship this bears to the Level 3 classification descriptor and, second, because the mere fact that the employees perform some Level 1 and Level 2 duties cannot be decisive as these also are incorporated as Level 3 duties for the reasons earlier explained.
Conclusion
[32] For the reasons given, we are not persuaded that any appealable error in the decision has been demonstrated. The appeal is therefore dismissed.
VICE PRESIDENT
Appearances:
Mr J Nolan of counsel with S Leung for the Appellant.
Mr S Bull for the Respondent.
Hearing details:
2020.
Sydney:
21 February.
Printed by authority of the Commonwealth Government Printer
<PR717855>
1 [2019] FWC 8209
2 Ibid at [91]
3 Ibid at [91]
4 Ibid at [92]-[94]
5 Ibid at [97]
6 Ibid at [95]-[97]
7 [2019] FWC 7695
8 This was conceded by one of MSS’s witnesses, as recorded in paragraph [58] of the decision
9 Harland v MSS Security Pty Ltd [2013] FWC 8064 at [33]-[37]
10 [2019] FWC 7695
11 Ibid at [88]
12 Ibid
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