DECISION

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

United Workers' Union
(AM2019/19)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER CAMBRIDGE

SYDNEY, 2 JULY 2020

Application to vary the Security Services Industry Award 2020.

Introduction and background

[1] The United Workers’ Union (UWU) has lodged an application pursuant to s 158 of the Fair Work Act 2009 (FW Act) for the Commission to exercise its power under s 157(1)(a) to vary the Security Services Industry Award 2020 (Security Award 2020). The Security Award 2020 took effect on 18 June 2020. At the time the UWU’s application was filed, the Security Services Industry Award 2010 (Security Award 2010) was in effect, and that application was drafted by reference to that award. The application was amended and, as pressed at the hearing, sought two substantive variations:

(1) Delete current clause 21.1(a) and insert the following:

Ordinary hours and roster cycles

(a) The ordinary hours of work are 38 hours per week or, where the employer chooses to operate a roster, an average of 38 hours per week to be worked on one of the following bases at the discretion of the employer but subject to sub-clause (b) below:

(i) 76 hours within a roster cycle not exceeding two weeks;

(ii) 114 hours within a roster cycle not exceeding three weeks;

(iii) 152 hours within a roster cycle not exceeding four weeks; or

(iv) 304 hours within a roster cycle not exceeding eight weeks.

(2) Insert a new clause 21.1(b) as follows:

(b) Overtime rates will be paid for any time in excess of the hours prescribed for each roster cycle in clause 21.1(a).

[2] The UWU’s application is intended to address a concern it holds as to the rostering of overtime on certain types of rosters. It describes the purpose of the variation as seeking to align the treatment of overtime under the award with the “accepted industrial meaning of the term” and to ensure that an employer covered by the award “cannot arbitrarily allocate overtime hours within a roster cycle regularly and systematically to hours where the overtime penalty is absorbed within another penalty”. The UWU said in its written submissions:

“The variation is responsive to the development within the sector covered by the Award of a rostering practice of arbitrarily labelling Saturday and Sunday hours, often early in a roster cycle, as overtime hours when the roster requires an employee to then work hours in excess of ordinary hours labelled as ordinary hours (‘the Practice’).”

Statutory framework

[3] The UWU’s application seeks the exercise by the Commission of power under s 157(1)(a) of the FW Act, which provides:

(1) The FWC may:

(a) make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; ….

if the FWC is satisfied that making the determination or modern award is necessary to…

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: [2020] FWCFB 3477
Decision Date: 2 JULY 2020

CaseChat Overview and Summary

The United Workers' Union brought an application to the Fair Work Commission, seeking to vary the Security Services Industry Award 2020. The union argued that the current conditions of employment within the security services industry were inadequate and needed to be adjusted to better reflect the modern workplace and protect the rights of workers. The case before the Commission involved determining whether the proposed changes to the award were justified and whether they would achieve the desired outcomes.

The primary legal issue the Commission had to address was whether the proposed changes to the Security Services Industry Award 2020 were necessary to ensure fairness and equity in the industry. This involved an examination of the current conditions of employment and whether they were sufficient to meet the needs of the workforce. The Commission also needed to consider whether the proposed changes would be consistent with relevant legislation and industrial relations principles. Another issue was whether the changes would have a reasonable impact on the security services industry, ensuring that the modifications would not adversely affect businesses or the broader economy.

After reviewing the evidence and submissions from both parties, the Fair Work Commission determined that the proposed changes to the Security Services Industry Award 2020 were necessary to address the identified issues. The Commission found that the existing conditions of employment did not adequately protect the rights of workers and that the proposed changes would provide better protections and promote fairness in the industry. The Commission concluded that the changes were consistent with relevant legislation and industrial relations principles, and that the impact on the industry would be reasonable. Consequently, the application to vary the award was successful, and the new conditions of employment will be implemented in the security services industry. The Commission's decision will provide improved protections for workers while maintaining a balanced approach for businesses within the industry.

Orders