United Workers' Union v ISS Security Pty Ltd
[2023] FWC 2337
•13 SEPTEMBER 2023
| [2023] FWC 2337 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
ISS Security Pty Ltd
(C2023/192)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 13 SEPTEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
The United Workers’ Union (UWU) and ISS Security Pty Ltd (ISS) are in dispute about whether certain employees of ISS engaged by it as “Customer Services Officers” (CSOs) at Melbourne Airport are covered by the ISS and United Workers Union Melbourne Airport Agreement 2021 (Agreement). The UWU applied under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure of the Agreement. ISS is a provider of contract cleaning and security services across Australia, including at Melbourne Airport. The UWU and ISS (together the “parties”) were unable to resolve the dispute at the workplace nor during conciliation before me. The dispute was listed for arbitration and then proceeded on an agreed facts basis. A series of witness statements were filed in respect of which the makers were not required for cross-examination. Consequently, the parties requested, and I agreed, to determine the dispute on the papers without holding a hearing.
The issue or question to be determined is whether CSOs engaged by ISS at Melbourne Airport are covered by the Agreement.
ISS currently employs about 45 CSOs at Melbourne Airport. The CSO position at Melbourne Airport has existed since around 2016. ISS classifies and pays its CSOs at Melbourne Airport under the Miscellaneous Award 2020. Employees to whom the Agreement applies are covered by the Security Services Industry Award 2020 (SSI Award), but that award does not currently apply to those employees in their employment with ISS at Melbourne Airport because of the operation of s 57 of the Act. Save for clause 32.4 of the SSI Award which is incorporated by clause 25.11.1 of the Agreement, the Agreement operates to the exclusion of the SSI Award (clause 4).
A CSOs’ non exhaustive list of duties includes the following duties:
oAssisting passengers with directions regarding airport facilities, including security screening point locations and security screening processes;
oAdvising international outbound passengers at Terminal 2 (T2), Melbourne Airport’s international terminal, that only travelling passengers (i.e. those with valid boarding passes and valid personal identification) are able to access customs-controlled areas;
oAssisting passengers with checking in oversized baggage items by directing passengers to place their items on a baggage belt and confirming that their boarding pass and bag tags match;
oDirecting passengers to appropriate security screening queues;
oDirecting passengers to appropriate security screening lanes;
oAdvising passengers how to prepare for security screening processes; and
oChecking that Airport staff and airline crew members hold an Aviation Security Identification Card (ASIC) before allowing them access to T2.
Access to the customs-controlled area of T2 is through electronic gates requiring passengers to scan a boarding pass in order to gain entry. CSOs advise people approaching the gates that only travelling passengers are permitted entry to the area and that passengers should scan their boarding pass on the electronic gates to gain entry. CSOs are stationed at the electronic gates to assist passengers with scanning boarding passes. CSOs also assist people with mobility or other challenges which may make use of the primary entry gates difficult, by allowing access through a wider gate. CSOs grant entry to airline crew and other authorised non-passengers who display an ASIC.
The competing contentions of the disputants may be quickly summarised. For its part, the UWU says that the principal purpose of the CSO role is the provision of security services because a “CSOs’ work includes ‘crowd control’ functions”. The UWU contends that ‘crowd control’ functions undertaken by CSOs include one or more of the following: screening entry into a place at Terminals 2, 3, and 4, in particular at the screening areas and lanes; monitoring or controlling behaviour in the place at Terminals 2, 3, and 4, in particular the screening areas and lanes; removing any person from a place, especially at the T2 screening area; otherwise maintaining order in the place at Terminals 2, 3, and 4, in particular the screening areas and lanes, and the oversized baggage check-in areas. Consequently, the UWU contends that CSOs are engaged in a classification described in Schedule 1 of the Agreement, namely Aviation Security Officer Level 1.
ISS contends that the duties of CSOs are not security services, they do not undertake crowd control functions, nor are they employed to maintain order at a public place. CSOs do not screen passengers or their baggage or personal belongings to provide entry into any area of Melbourne Airport, save for the customs-controlled area in T2, which ISS contends involves no more than checking that people admitted to the area have passes permitting admission. Consequently, as CSOs are not engaged in providing security services, the classifications for which the Agreement makes provision do not apply.
The resolution of the dispute turns on a proper construction of the Agreement and an assessment of whether any classification for which the Agreement provides applies to the position of CSO. Neither are the principles applicable to the constructions of an enterprise agreement nor the proper approach to determining an employee’s classification under an industrial instrument in dispute.
Briefly, the task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the industrial instrument, read as a whole, and the disputed provision’s place and arrangement in the instrument. The statutory framework under which the industrial instrument is made, or in which it operates may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances to determine whether there is any ambiguity in a provision of an industrial instrument. The language of an industrial instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.[1]
Assessing whether an enterprise agreement (and a classification for which it provides) covers an employee in particular employment involves a consideration of the major and substantial purpose of the position into which an employee is employed. This will involve a consideration of the nature of the work undertaken and the circumstances under which the employee is employed to do the work in order to ascertain the principal purpose for which the employee is employed.
Clause 4 of the Agreement sets out its coverage and provides that it covers:
. . . to the exclusion of all other industrial instruments, employees of ISS Security Pty Ltd engaged in the classifications described in Schedule 1 of this Agreement in the provision of security services for Australia Pacific Airports (Melbourne) Pty Ltd or an airline at Melbourne Airport. This Agreement also covers the Union, where it has been included in the approval decision of the FWC.
Thus, ISS employees working at Melbourne Airport are covered by the Agreement if they are engaged in one of the classifications in providing security services for Australia Pacific Airports (Melbourne) Pty Ltd or an airline at Melbourne Airport. That which may constitute “security services” is not defined or described in the Agreement.
Schedule 1 of the Agreement provides for classifications and their descriptions as follows:
Classifications for employees working under this Agreement are as follows:
S1.1 "Aviation Security Officer Level 1" is a person employed as a probationary or trainee aviation screening operator or an employee not classified as an Aviation Security Officer Levels 2, 3 or 4 as provided in this Agreement;
S1.2 “Aviation Security Officer Level 2" is a person employed as an Aviation Screening Officer or an employee who has current aviation screening qualifications who is rostered to carry out aviation screening operator duties for not less than 30% of their usual rostered duties. Such person may be required to supervise level one officers.
S1.3 "Aviation Security Officer Level 3" is a person having current qualifications as an Aviation Screening Officer levels 1 and 2 and who carries out the following duties, not directly associated with Aviation Screening.
S1.3.1 Monitoring, recording, inputting information, reacting to signals and instruments relating to electronic surveillance of any kind within a central station.
S1.3.2 Keyboard operations to alter the parameters within an integrated intelligent building management and/or security system;
S1.3.3 Co-ordination, monitoring or recording of the activities of Aviation Security officers utilising verbal communications systems within a central station;
S1.3.4 May be required to perform Level 1 and/or Level 2 duties from time to time without loss of pay.
S1.4 "Aviation Security Officer Level 4" is a person with current qualifications as a Level 1, 2 and 3 employee who carries out the duties of a Team Leader.
S1.5 "Aviation Security Officer Level 5" is a person with current qualifications as a Level 1, 2 and 3 employee who is appointed as, and carries out the duties of, a Team Leader supervising 15 or more people.
S1.6 "Team Leader" means an employee who carries out and is responsible for:
S1.6.1 co-coordinating the work of Aviation Security Officers in teams as directed;
S1.6.2 co-coordinating, monitoring or recording the activities of Aviation Security officers utilising verbal communications systems;
S1.6.3 undertaking administrative and recording duties as directed;
S1.6.4 scheduling workflow patterns, rostering arrangements, scheduling of breaks, monitoring and co-ordination of trainees and other training requirements, maintenance of training records, ensuring compliance with ISS and customer policies and procedures as defined;
S1.7 "Aviation Screening Officer" means an employee employed as an Aviation Security Officer and who holds and maintains current qualifications in passenger security screening.
Clause 12 of the Agreement sets out certain obligations and requirements in relation to classifications as follows:
12.1. ISS must classify an employee covered by this Agreement in accordance with Schedule 1.
12.2. An employee must perform all duties that are incidental to their work and within their level of skill, competence and training, irrespective of their classification.
12.3. ISS must ensure that an employee required to be licensed under the Private Security Act 2004 (Vic) holds the appropriate licence for their classification or the work the employee is required to perform. Employees are responsible for obtaining and maintaining the appropriate licence (including costs). If an employee’s licence expires or is suspended or cancelled, the employee must notify ISS immediately and ISS may stand the employee down from work without pay for 2 weeks or any other period that may be agreed between them in order to resolve the licensing issue, or the employee may access any accrued annual or long service leave. If the licensing issue is not resolved within 2 weeks, or such longer agreed period, including any accrued leave, the employee may be terminated.
12.4. Employees are required to hold an Aviation Security Identification Card (ASIC). ISS will pay for the renewal cost of an employee’s ASIC. If an employee’s ASIC expires or is suspended or cancelled, the employee must notify ISS immediately and ISS may stand the employee down from work without pay for 2 weeks or any other period that may be agreed between them or the employee may access any accrued annual or long service leave. If the ASIC issue is not resolved within 2 weeks, or such longer agreed period, including any accrued leave, the employee may be terminated.
12.5. Employees may be required to hold an Airside Drivers Authority (ADA). ISS will pay for the renewal cost of an employee’s ADA. If an employee’s ADA expires or is suspended or cancelled, the employee must notify ISS immediately and ISS will endeavor to find alternate duties for the employee to perform while the ADA issue is resolved. If ISS does not have available alternative duties, ISS may stand the employee down from work without pay for 2 weeks or any other period that may be agreed between them or the employee may access any accrued annual or long service leave. If the ADA issue is not resolved within 2 weeks, or such longer agreed period, including any accrued leave, ISS may redeploy the employee to alternate duties, including duties at a lower rate of pay, while the ADA issue is resolved. If the ADA issue is not resolved within 2 weeks, or such longer agreed period, the employee may be terminated.
12.6. Employees who perform aviation screening (screening officers under the Aviation Transport Security Regulations) are required to hold at least a Certificate II in Security Operations and maintain screening competency. The Department of Home Affairs has announced that it intends to introduce a Screener Accreditation Scheme that will require existing screeners to pass accreditation tests in screening functions that are relevant to their job and meet continuing professional development requirements. Under the scheme, new screeners will be required to complete a Certificate II in Transport Security Protection and undertake at least 40 hours of on-the-job training. If an employee fails to maintain screening competency or does not pass the accreditation tests under the scheme, ISS may redeploy the employee to alternate duties, including duties at a lower rate of pay, while the screening issue is resolved. If the screening issue is not resolved within 6 weeks, ISS may permanently redeploy the employee to alternate duties, including duties at a lower rate of pay.
These provisions make clear that CSOs (or at least those who have provided witness statements) are not to be classified as an Aviation Security Officer Level 2, 3, 4 or 5. Fundamental to the classification of an Aviation Security Officer Level 2 is the performance of Aviation Screening Officer duties. This requires that the person holds and maintains current qualifications in passenger security screening. Those qualifications are “at least a Certificate II in Security Operations and [to] maintain screening competency”. Each of Aviation Security Officer Levels 3, 4 and 5 require, inter alia, as a base, current qualifications as a Level 2 employee. It was not contended nor is there any evidence that any CSO is so qualified. Indeed there is no such qualification requirement for employment as a CSO.[2]
For CSOs to be covered by the Agreement, they must fall to be classified as "Aviation Security Officer Level 1". CSOs are not employed as probationary or trainee aviation screening operators. But as a CSO is not classified as an Aviation Security Officer Levels 2, 3 or 4, a CSO will fall within the Level 1 classification if, as clause 4 makes clear, the CSO is providing or performing security services for Australia Pacific Airports (Melbourne) Pty Ltd or an airline at Melbourne Airport. There is no dispute that ISS is contracted by Australian Pacific Airports (Melbourne) Pty Ltd to provide security services at Melbourne Airport. But the issue is whether the CSOs provide any security services and if so whether providing or undertaking security services is the principal purpose for which the CSOs are employed.
As earlier noted, “security services” is not defined in the Agreement. The phrase has no clear or obvious meaning save that in the context of the Agreement it includes aviation screening and that such services are carried out at a major Australian airport. Some contextual relevance may be obtained from the SSI Award.
The SSI Award covers employers in the “security services” industry and employees of those employers employed in classifications for which the SSI Award provides ranging from Security Officer Level 1 to Security Officer Level 5. Clause 4 sets out a non-exhaustive definition of security services industry as including:
a)patrolling, protecting, screening, watching or guarding any people or property (including cash or other valuables):
(i)by physical means (which may involve the use of patrol dogs or the possession or use of a firearm); or
(ii)by electronic means; and
b)crowd control, event control or venue control, whether by physical or electronic means; and
c)the provision of bodyguard or close personal protection services; and
d)the operation of a security control room or monitoring centre; and
e)loss prevention; and
f)traffic control that is incidental to, or associated with, the activities referred to in . . . (a)-(c) above.
It is hardly controversial, even absent a reference to “crowd control”, that such an activity falls comfortably within the meaning of security services. Crowd controller is defined in the SSI Award, but the description is not otherwise used, and it means a person employed mainly to maintain order at any public place, including licensed venues and events, by doing one or more of the following:
a)screening entry into the place (other than by merely securing or checking that persons have paid for admission or have invitations or passes allowing for admission); or
b)monitoring or controlling behaviour in the place; or
c)removing any person from the place; or
d)otherwise maintaining order in the place.
Persons performing crowd controller activities in Victoria must be licenced under the Private Security Act 2004 (Vic) (PS Act) (see s 7). Clause 12.3 of the SSI Award provides that “[t]he employer must ensure that an employee holds the appropriate licence for their classification or the work the employee is required to perform”. But an employee does not lose any entitlements under the SSI Award merely because the employee does not hold an appropriate licence.
Section 3 of the PS Act defines a “crowd controller” as a person who is employed or retained principally to maintain order at any public place by doing all or any of the following—
a)screening entry into; or
b)monitoring or controlling behaviour in; or
c)removing any person from; or
d)otherwise maintaining order in—
any such place, unless that person is doing nothing more than securing or checking that persons allowed admission—
e)have paid for admission; or
f)have invitations or passes allowing for admission;
The PS Act and SSI Award definitions are in substance the same as are the exclusions and require the person to be “employed mainly” (SSI Award) or “principally” (PS Act) to maintain order at any public place by doing any one or more of the activities described.
It may be accepted that a person engaged mainly or principally to carry out crowd control activities, whether or not the person is a licenced crowd controller, is engaged in the provision of security services. Such a person, employed by ISS mainly or principally to carry out crowd control activities at Melbourne Airport, would be engaged in providing security services and would be covered by the Agreement.
The UWU says that CSOs’ work includes ‘crowd control by physical means’ in a public place, being Terminals 2, 3 and 4 of Melbourne Airport, by doing one or more of the following:
a) screening entry into a place (Terminals 2, 3, and 4, in particular the screening areas and lanes); or
b) monitoring or controlling behaviour in the place (Terminals 2, 3, and 4, in particular the screening areas and lanes); or
c) removing any person from the place (especially the Terminal 2 screening area); or
d) otherwise maintaining order in the place (Terminals 2, 3, and 4, in particular the screening areas and lanes, and the oversized baggage check-in areas).
These contentions, respectfully, exaggerate the evidence.
As to the first identified function, as a security activity “screening entry” involves more than checking eligibility or clearance to be at a particular place or to enter that place. It involves making authoritative decisions about who the controller will permit to enter a place and who will be refused entry. At its highest, the evidence suggests CSOs check boarding passes to ensure that persons in the screening area are permitted to be there and ask persons without a boarding pass to leave the screening area.[3] There is a substantial difference between asking a person to leave the screening area and having authority to determine to exclude the person from the area. There is no suggestion that CSOs as part of their employment have such authority. Indeed, where a person is asked to leave but does not, the evidence suggests that a call is made to the supervisor, who then takes appropriate steps to remove the person from the area.[4] This is unsurprising since the supervisor is an Aviation Security Officer supervisor. As to passenger entry into the customs-controlled area of T2, this is accommodated through electronic gates requiring passengers to scan a boarding pass in order to gain entry. It is the possession and scanning of a valid boarding pass which will admit the passenger. No screening or admission decision is made by the CSO.
As to the second function, the evidence extended no higher than the suggestion that CSOs deal with “angry passengers” including by attempting to calm down or de-escalate potential conflicts.[5] Without more, this is not suggestive of any security service, and it may be expected that many persons employed at Melbourne Airport will encounter and have to deal with “angry passengers”. CSOs are not responsible for maintaining order nor for monitoring passengers’ behaviour at Melbourne Airport.[6]
As to the third function, the evidence is as set out in [25] above. There is no evidence that any CSO has removed, is authorised, or required to remove any person from any place at Melbourne Airport. Removal decisions are, on the evidence, taken by a supervisor.
As to the fourth function, giving advice and directions to persons approaching the various screening areas, directing passengers to open or available screening lines and other related activities identified by the UWU witnesses, is providing assistance to passengers consistent with the customer service function of the CSOs’ role.
The agreed, albeit non-exhaustive list of CSO duties speaks loudly to the principal purpose of the employment of a CSO. It is as the title suggests - customer or passenger service focussed – by providing various forms of advice, guidance, assistance and direction to various services and screening processes which passengers need to access or through which passengers need to pass. It may be accepted that checking that Airport staff and airline crew members hold an ASIC before allowing them access to T2 is akin to a security service and more than merely checking ticketing or passes to an event, but the evidence does not suggest that this is the predominant or even a substantial part of a CSOs role. Nor is crowd control more generally any significant part of the role.
The principal purpose of the employment of a CSO is not the provision of security services, but rather in assisting and guiding passengers to navigate the various touch points of travel through Melbourne Airport.
It follows from the forgoing that a CSO employed by ISS at Melbourne Airport is not covered by the Agreement.
The answer to the agreed question for determination is “no”.
The dispute is determined accordingly and there is no need for any order.
DEPUTY PRESIDENT
[1] Australian Workers’ Union v Orica Australia Pty Ltd[2022] FWCFB 90 at [18] and the authorities referred to therein; see also James Cook University v Ridd [2020] FCAFC 123 at [65] and the authorities referred to therein
[2] Witness Statement of Rani Broka at [16]
[3] Witness Statements of Saso Peposki at [13] and Rani Broka at [13]
[4] Witness Statement of Rani Broka at [15]
[5] Ibid at [13]
[6] Witness Statement of Jed Moore at [9]
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