United Workers' Union v Spotless Facility Services Pty Ltd - [2023] FWC 968

[2023] FWC 968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

United Workers’ Union
v

Spotless Facility Services Pty Ltd

(C2022/7104)

DEPUTY PRESIDENT LAKE

BRISBANE, 8 MAY 2023

Application to deal with a dispute - whether the Supervisor is included in the classification structure – coverage – classification– dispute determined.

On 25 October 2022, the United Workers Union (UWU) (‘the Applicant’) filed an application pursuant to s 739 of the Fair Work Act2009 (Cth) (the Act) regarding a dispute about the coverage of security supervisors employed by Spotless Facilities Services Pty Ltd (‘the Respondent’ or ‘Spotless’) under the Spotless Sunshine Coast University Hospital Security Enterprise Agreement 2019 (‘the Agreement’).

The UWU made the Application pursuant to clause 2.4 of the Agreement. Clause 2.4.5 of the Agreement states:

2.4.5 The Fair Work Commission may deal with the dispute in two stages:
(a) the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then: (i) arbitrate the dispute; and (ii) make a determination that is binding on the parties.

The parties attempted to resolve the dispute on 1 December 2022 through a conciliation which was unsuccessful. Following the conciliation conference, I issued directions and listed the matter for arbitration on 7 February 2023. I am satisfied that I have the jurisdiction to arbitrate the dispute per clause 2.4.5(b) of the Agreement.

A number of jurisdictional objections were raised by the Respondent. However, in order for the substantive matter be dealt with so as to enable the parties to return to the bargaining table, the Respondent agreed to no longer contest those objections in the hearing. As a result, I will not deal with those matters in this decision.

Outline of Dispute

The Respondent provides security services to the Sunshine Coast University Hospital (‘SCUH’) on a continuous basis (24 hours a day, seven days per week). They engage employees on a four-day on/four-day off basis rotating day and night. There are four crews of security officers with each crew having a Security Supervisor (‘Supervisor’ or ‘Security Supervisor’).

The four supervisors who are responsible for supervising and managing their team of security officers are the most senior members of management on site and work out of hours between 4:00pm and 8:00am weekdays. These supervisors report to the Security Coordinator. Security supervisors are paid an annual salary and a rostered to work on average two day shifts and two-night shifts per week over an eight-week cycle.

Security officers are permanent employees and are paid an aggregate annualised wage which includes a base hourly rate, shift allowances, first-aid allowance, rostered overtime and any other allowance or penalty which would be payable in accordance with the roster. The aggregate annualised wage is calculated on the basis of eight weeks plus rostered days off (‘RDO’). The eight-week roster cycle comprises of 304 ordinary hours, 8 overtime hours and two rostered days off. Security officers are entitled to annual leave loading which is 17.5 percent.

I note the Agreement passed its nominal expiry date on 12 July 2022. The Applicant has commenced bargaining with the Respondent for a new agreement to replace the existing Agreement. Spotless provided a Notice of Employee Representational Rights (‘NERR’) on 17 August 2022 to all employees who are proposed to be covered by the Agreement including the four supervisors.

I note that during the bargaining, the Applicant raised that the Respondent has no intention for the Security Supervisor role to be covered by the new Agreement.

Question for determination

With agreement of the parties, the question to be determined before me is as follows:

“Are the security supervisors engaged by the Respondent at Sunshine Coast University Hospital covered by the Agreement?”

Relevant Agreement Clauses

The dispute relates to whether security supervisors are covered under the classification of a Level 5 Security Officer per Appendix 1 – 1.5 Security Officer (Level 5) in the Agreement.

Clause 1.4 of the Agreement states:

1.4 Coverage

This Agreement will apply to all Employees engaged by the Employer to provide security services as part of the Sunshine Coast University Hospital ("SCUH") for whom the classifications in Appendix 1 apply.

Furthermore, the definitions in clause 1.5 of the Agreement states:

"Security Services" means the industries and/or industrial pursuits of gatekeeping, securing or watching, including the securing, watching, guarding and/or protecting of persons, premises and/or property, servicing (excluding technicians) and/or responding to alarms and providing escort services, and without limiting the generality of the foregoing, the recording and/or control of the entry and/or exit of persons, vehicles, and/or goods of any description, and the operation and/or monitoring of alarms and/or alarm control systems.

The Agreement sets out the duties for a Security Officer Level 5 in Appendix 1 Clause 1.5.2:

1.5 A Security Officer level 5:

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)exercises high level communications/interpersonal skills;
c)assists in the provision of training in conjunction with supervisors and/or trainers;
d)exercises discretion within the scope of this classification level; and
e)exercises computer skills at a higher level than Level 4.

Indicative of the tasks which an Employee at this level may be required to perform are the following:

a)keyboard operation to alter the parameters within an integrated intelligent building management and/or security system including operating computer programs which have the ability to remotely lock/unlock doors, program access cards, audit and record door access by individuals as well as recording time and date of access; and
b)the coordinating, monitoring or recording of the activities of security officers utilising a verbal or computer based communications system with a central station at the particular site or location including in or in connection with an airport security zone.

[Emphasis added]

United Workers’ Union submissions

Coverage

The Applicant submits that section 53(1) of the Act provides that an enterprise agreement “covers” an employee or employer “if the agreement is expressed to cover the employee or employer” and thus whether the Agreement covers the security supervisors employed by the Respondent at SCUH must be determined by reference to the coverage term per Clause 1.4 and Clause 1.5 in the Agreement.

Construing the ordinary language of clause 1.4, it would appear that the Agreement is expressed to cover person(s):

(a)who are engaged by Spotless to “provide security services” as part of the SCUH; and

(b) who fall within the classifications in Appendix 1 of the Agreement.

In the Applicant’s view, it is uncontroversial that the security supervisors are engaged by Spotless to provide security services as part of the SCUH.

The Applicant contends that to determine the question, it is necessary to consider the following:

(a) The nature or quality of the work done by a security supervisor; and
(b) The time spent in carrying out the various specific duties of a security supervisor.

The Applicant broadly contends that the work performed by security supervisors is in the nature of a protective services role with additional supervisory duties. The primary duty of a security supervisor is to respond to, coordinate and manage security incidents to protect hospital staff, patients, and visitors. It is not merely a managerial role.

Classification - Evidence of Donald Caldwell

Mr Caldwell is employed as a Security Supervisor with the Respondent. He previously held positions as a casual Security officer and then as a permanent Security officer with the Respondent. Mr Caldwell was promoted the Security Supervisor position in September 2020. He also asserts that the level of remuneration for the Supervisor role does not reflect the role if indeed it is a supervisor and not a level 5. He further contends that the role is not that different to a Level 4 and the difference in role is accommodated in the Level 5 description.

The witness provided the following matrix of duties:

Duties and Responsibilities	Regularity	Agreement classification description
Conduct handover/takeover brief at the start/completion of each shift	Daily	Agreement is silent on this duty/responsibility. Given that this duty involves a high a level of responsibility, the most appropriate classification would be Level 5.
Allocate and sign out of body cams	Daily	See above.
Maintain individual incident logs	Security Officer – Level 3 (this duty overlaps with that of the Level 3 Security Officers)¹¹
Assist in investigations via the video surveillance platform in the control room	Approximately once every 4 days	Security Officer – Level 4 This duty corresponds with one of the Level 4 indicative tasks: “monitoring, recording, inputting information or reacting to signals and instruments related to electronic surveillance of any kind within a central station or a particular location”.
Leading and assist hospital staff in locating missing patients and returning them to the appropriate clinical area if required.	Approximately once every 4 days	Agreement is silent on this duty/responsibility. However, this is a complex duty/responsibility that is site specific. As this task involves leading and assisting a team of security officers in a team environment, the most appropriate classification is Level 5.
Provide support and consult with clinicians, security officers team and mental health staff in relation to Behaviour of Concern (BOC) patients.	On average 0- 3 times per day	Agreement is silent on this duty/responsibility. However, this is a complex duty/responsibility that is site specific. As this task involves the exercise of discretion and high-level communications/interpersonal skills, the most appropriate classification is Security Officer – Level 5.
Lead and assist other security officers in escorting hospital staff and others to the carpark and around the facility when requested	N/A	Agreement is silent on this duty/responsibility. However, this is a complex duty/responsibility that is site specific. As this task involves leading and assisting a team of security officers in a team environment, the most appropriate classification is Level 5.
Lead and assist other security officers with patient escorts to various areas of the Hospital including Dental/X- ray/imaging/theatre for Electro Convulsive Therapy when required.	On average 0- 3 times per day	As above.
Lead and assist other security officers and clinicians with medication of patients including physical restraint of patients for IM injections and for Nasal Gastric feeds.	On average 0- 3 times per day	As above.
Lead and assist other security officers with physically restraining patients to allow clinicians to shower aggressive violent patients who have faecal matter over their bodies.	On average 0- 3 times per day	As above.
Lead and assist with physical restraint of aggressive and violent trauma patients who require emergency procedures/intubation in the Emergency department.	On average 0- 3 times per day	As above.
Attend all incidents to complete risk assessments and assist with physical restraints.	On average 0- 3 times per day	As above.
Conduct de-brief with PSOs following traumatic incident.	On average 0- 3 times per day	Agreement is silent on this duty/responsibility. However, this is a complex duty/responsibility that is site specific. As this task involves the exercise of discretion and high-level communications/interpersonal skills, the most appropriate classification is Security Officer – Level 5.
Follow up with staff following an injury during a job.	As required	As above.
Provide operational support to the Queensland Fire and Emergency Service (QFES)	Rarely	Agreement is silent on this duty/responsibility. However, this is a complex duty/responsibility that is site specific. As this task involves the exercise of discretion and high-level communications/interpersonal skills, the most appropriate classification is Security Officer – Level 5.
Conduct and report safety KPIs	Monthly	Agreement is silent on this duty/responsibility. Given that this duty requires the exercise of a high level of responsibility, the most appropriate classification would be Level 5.
Liaise with Queensland Police Services (QPS) and the Chief Emergency Warden	Rarely	Agreement is silent on this duty/responsibility. However, this is a complex duty/responsibility that is site specific. As this task involves the exercise of discretion and high-level communications/interpersonal skills, the most appropriate classification is Security Officer – Level 5.
Car park patrols	Twice daily if time permits	Agreement is silent on this duty/responsibility. As this duty does not involve a high level of complexity, it may fall within the classifications of a Level 3 or 4 Security Officer.
Issue infringement notices to people who have parked their vehicles in the emergency bay or not parked in a 15-minute zone for a long period of time	As required	Agreement is silent on this duty/responsibility. The issuing of infringement notices involves the exercise of a high level of responsibility and therefore, the most appropriate classification is Level 5.
De-escalate complaints from receivers of infringement notices	Rarely	Agreement is silent on this duty/responsibility. Receiving complaints is generally considered a managerial responsibility. Accordingly, Level 5 is the most appropriate classification as it involves the highest level of responsibility. See paragraph 40 below.
Report any safety or maintenance issues	As required	Agreement is silent on this duty/responsibility. However, as it requires a high level of discretion, as well as skill and experience. Accordingly, Level 5 is the most appropriate classification.
Take responsibility for ensuring patient valuables are accounted for and signed into the cashiers	Monthly (on average)	Agreement is silent on this duty/responsibility. However, this is a complex duty/responsibility that is site specific. It necessarily requires a high level of responsibility. Accordingly, Level 5 is the most appropriate classification.
Manage fatigue in officers	N/A	Agreement is silent on this duty/responsibility. However, this is a complex duty/responsibility that is site specific. This is a managerial responsibility as it involves developing a roster that satisfies the needs of the team of security officers. Accordingly, Level 5 is the most appropriate classification.
Assist in the training of all security staff	Monthly	The requirement for monthly training is a new initiative started by Mr Julian Siebrand (Security Manager) in September 2022. The training sessions are led by security supervisors but coordinated by Mr Siebrand. Accordingly, the most appropriate classification is Level 5. See paragraph 40 below.
Supervise personal development plans of officers	Every 6 months	Agreement is silent on this duty/responsibility. It is a supervisory duty and therefore, the most appropriate classification is Level 5.
Evaluate staff performance and provide feedback	Ongoing (especially with trainees)	As above.
Resolve minor employee issues and disputes	As required	As above.
Mentor and provide onsite training to new employees	Ongoing	The duty to provide onsite training to new employees is part and parcel of leading a team of security officers. Accordingly, the most appropriate classification is Level 5.
Liaise with the Coordinator	Daily	The coordinator manages the security supervisors. This duty corresponds with the description of a Level 5 Security Officer to the extent that it involves working “individually or in a team environment under limited supervision, which may not necessarily be at the site where the officer is posted”. The most appropriate classification is Level 5.

Of the 29 duties/responsibilities set out in Mr Caldwell’s statement, the Applicant submits that 26 duties or responsibilities align with the Agreement’s description of a Security Officer – Level 5.

The main distinctions between Level 4 and Level 5 are the level of complexity and the level of responsibility required. Specifically, it is noted that:

(a)Unlike a Level 4 Security Officer, a Level 5 Security Officer “may co-ordinate the work of Security Officers working in a team environment within a central station”. This distinction in the language of the two classifications indicates that a Level 5 Security Officer exercises a higher level of responsibility than a Level 4 Security Officer (as well as Levels 1 to 3).
(b)With respect to the responsibility to assist in training, the Agreement differentiates between “on-the-job training” (a Level 4 duty/responsibility) and the provision of training “in conjunction with supervisors and trainers” (a Level 5 duty/responsibility). It is inferred that a Level 5 Security Officer is required to provide more formal and structured training, as opposed to informal and unstructured training “on-the-job”.

(c)A Level 5 Security Officer is required to possess computer skills above that of a Level 4 Security Officer, thus demonstrating that the role of a Level 5 Security Officer requires the performance of more complex duties/responsibilities.

The key features of a Security Officer – Level 5 include:

(a)working under limited supervision (individually or in a team environment), which may not necessarily be at the site where the officer is posted;
(b)exercising high level communications and interpersonal skills;
(c)assisting in the provision of training in conjunction with supervisors and trainers;
(d)exercising discretion within the scope of that level; and
(e)exercising computer skills at a higher level than Level 4.

In relation to (a), the security supervisors work under limited supervision in a team environment. Security supervisors answer to the coordinator, Mr Dave McAdam, who in turn is managed by Mr Julian Siebrand.

In relation to (b), it is clear from the duties/responsibilities described above that the fundamental duty of the security supervisors is to manage and coordinate responses to security incidents and support and liaise with hospital staff. These tasks manifestly involve the exercise of high-level communications and interpersonal skills.

In relation to (c), the security supervisors assist in the provision of training in conjunction with the coordinator. Security supervisors provide training to new guards as a team by, inter alia, providing ‘toolbox’ handouts and on-site practical training. They also provide monthly training sessions to all security officers. This relatively new initiative was organised by Mr Julian Siebrand (Security Manager).

In relation to (d), the security supervisors are responsible for responding to, and managing, a broad range of security incidents/threats and are thus, required to exercise a reasonable degree of discretion based on their skills and experience.

In relation to (e), the security supervisors exercise computer skills well above that of a Level 2 to 4 Security Officer; that is, they are expected to exercise computer skills beyond inputting complex data into a computer and managing access control equipment and electronic intrusion detection. For example, they are responsible for assisting in investigations via the video surveillance platform in the control room.

Relief

The Applicant seeks a determination in relation to the proper construction of the Agreement that the Agreement covers and applies to the security supervisors engaged by the Respondent at Sunshine Coast University Hospital.

Spotless’ Submissions

Coverage/Classification of Security Supervisors

The Respondent submits that on a plain and ordinary meaning of clauses 1.4, 1.5 and Appendix 1, having regard to their place within the Agreement, the text of the Agreement holistically, and their purpose in the industrial context for which the Agreement is designed, there is no coherent way to include the substantive role of Security Supervisor within the scope of the Agreement.

The Respondent argues that the Agreement does not apply to the role of Security Supervisor on the basis that the Agreement:

a)does not expressly contemplate a Supervisor role in its classifications;
b)does not provide for duties that align with the nature or day to day tasks of the Supervisor role;
c)consistently utilises language which infers that supervisory roles are separate to the classifications contemplated; and
d)only provides for a supervisory allowance on a temporary basis.

The Respondent submits a qualitative assessment of the duties listed would determine them to be individually and wholistically outside of the scope contemplated by the Security Officer Level 5 classification within the Agreement.

While aspects of the role overlap with duties performed by employees covered by the Agreement, such duties do not form a majority of the Security Supervisor’s duties and are distinguished by the supervisory and managerial capacity in which Security Supervisors undertake their role.

The Applicant has relied on Mr Caldwell’s statement to list 29 duties of the Security Supervisor role. This list of duties, as framed by the Applicant, is incomplete and does not accurately reflect the overarching purpose of the Security Supervisor role.

Of the 29 duties listed, three (3) duties are identified by the Applicant as falling within the scope of Security Officer Level 3 to Security Officer Level 4 classifications.

The Applicant broadly contends that 26 of the duties listed, despite these duties not being expressly provided for by the Agreement, should be considered to fall within the scope of Security Officer Level 5 as they require:

(a)A high level of discretion; or
(b)A high degree of communication/interpersonal skills; or
(c)Involve leading and assisting a team of security officers in a team environment.

It is noted ‘leading and assisting a team of security officers’ is not listed as an indicative or required feature within the Agreement.

The Respondent views both the Applicant’s account of duties, and the duties require a level of discretion far higher than those provided for by the Security Officer Level 5 classification of the Agreement.

The Applicant has submitted that the duty to ‘mentor and provide onsite training to new employees’ is most suitably classified at Security Officer Level 5 within the Agreement. The Agreement provides a Security Officer Level 5 employee ‘assists in the provision of training in conjunction with supervisors and/or trainers. In their role, Security Supervisors assume the primary responsibility for training and mentoring Security Officers which objectively exceed the training duties contemplated by the Agreement. This duty is beyond the scope contemplated by Security Officer Level 5 of the Agreement.

The Respondent considers the Applicant has failed to effectively apply either the principal purpose test, or the major and substantial employment principle to the Security Supervisor role to effectively establish coverage under the Agreement.

The Respondent submits that the Applicant’s submissions, in effect, require rewriting of the Agreement to shoehorn the Security Supervisor’s duties into the scope of Security Officer Level 5 of the Agreement through the broad characteristics of requiring a ‘high level of communication/interpersonal skills’ and a ‘high level of discretion’. Drawing a conclusion that the Security Supervisor role is covered by the Agreement on this basis is inconsistent with governing principles of enterprise agreement interpretation.

The Respondent submits a plain language interpretation of clause 1.4 connotes a requirement for the engagement of an employee to be for the purpose or reason of providing ‘security services’, as defined by the Agreement, to be covered by the Agreement.

Classification - Evidence of Marc Phillips

Mr Phillips stated during his oral evidence that when the Enterprise Agreement was being drafted, the organisational structure would have a three-tiered managerial team which included the security supervisors. Mr Phillips signed the agreement on behalf of the Company and lodged this with the Commission. He emphasises that the key role of a Security Supervisor was to undertake risk assessments of operational risk and determine the resources that are needed to mitigate the risk.

Mr Phillips states that there are differences with a Security Supervisor compared to a Security Officer in that a Security Supervisor will mainly be in the control room to determine risk, unlike a Security Officer who is rostered in different parts of the hospital and will switch areas after every 2 hours. Furthermore, a Supervisor has autonomy regarding how they wish to run their team.

In Mr Phillips’ statement, the Respondent states that he has provided salient evidence regarding the purpose and key duties which form the substance of, and reason for, the Security Supervisor role at SCUH. Relevantly, Mr Phillips describes the primary responsibility of the Security Supervisor role as ‘the direct supervision of the security officer team to ensure the delivery of security services in line with contractual and legislative requirements.’

In his statement, Mr Phillips describes the following responsibilities and duties of the Security Supervisor role as follows:

a)Appropriate management of resources to ensure deployment to security and emergency incidents.
b)Appropriate management of resources to ensure deployment to Helipad Landing Site for all inbound and outbound aircraft.
c)Appropriate fatigue management, ensuring allocation of meal breaks and equal rotation across operational roles.
d)Management of roster ‘out of hours’ including sourcing roster deficiencies.
e)Ensuring that legal, justifiable and proportionate use of force is used by security officers during physical restraints.
f)Ensuring submission and review of use of force incident reports by security officers.
g)Liaise with clinical staff to agree legal, justifiable and proportionate security responses including the use of physical intervention, such as patient restraint.
h)Lead the physical intervention ensuring safety of all involved.
i)Ensuring security officers adhere to all SOP’s and Risk Assessments.
j)Conduct risk assessments.
k)Training and mentoring of security officers.
l)Performance management of security officers.
m)Deputise for Security Manager and Coordinator in their absence and out of hours.
n)Perform role as most senior Downer on site representative out of hours.
o)Conduct briefings and de-briefing.
p)Conduct initial investigations for staff injuries including completion of injury management documentation.

The duties listed in Mr Phillip’s statement heavily reflect, and are designed to fulfil, the Service Specifications for the Security Supervisor role (named as a Security Shift Supervisor in that document) stipulated in Annexure 7 of the Facilities Management Contract and Contract Deed. The Service Specifications detail what the Respondent is contractually required to deliver to SCUH and Queensland Health with respect to the Security Supervisor role.

The duties listed are identifiably separate to, and distinguishable from, ‘security services’ as defined in the Agreement.

Annexure 7: Service Specifications for the Security Supervisor

In Mr Caldwell’s statement he claimed ‘the primary role of a security officer and security supervisor is to assist hospital staff by physically restraining patients who [are] physically abusive, such as patients who are under the influence of alcohol/drugs or suffering from a serious mental health issue.’

The Respondent submits Mr Caldwell’s description of physical restraint as ‘the primary role’ is fundamentally incorrect and inconsistent with the role’s requirement to prioritise the least restrictive model of care and to de-escalate and diffuse potential conflict wherever possible. This is a critical focus of the Security Supervisor role to ensure the safety of patients, clinical staff, Security Officers and of Security Supervisors themselves.

In consideration of Mr Phillip’s evidence, the Respondent submits the objective purpose of the Security Supervisor role is to supervise Security Officers and act in a managerial capacity to discharge the Respondent’s contractual obligations onsite at SCUH. Mr Phillip’s evidence demonstrates the Security Supervisor role is not engaged to provide ‘security services’ as defined in the Agreement. Accordingly, the first requirement expressed in clause 1.4 is not met. The Security Supervisor role is precluded from coverage under the Agreement on this basis.

Critically, the Agreement in Appendix 1 – Classifications falls well short of conferring supervisory responsibility on the Security Officer Level 5. This is addressed further below in an analysis of the responsibilities and duties of a Security Supervisor.

Moreover, the duties and responsibilities of a Security Officer Level 5 employee are almost identical to the wording set out in Security Officer Level 4, with the most relevant exception being that a Level 5 employee “may co-ordinate the work of Security Officers.” As outlined in the analysis above, the role of Security Supervisor operates at a quasi-managerial level and the wording in the Security Officer Level 5 classification does not capture the importance or complexity required to deliver the managerial aspects of the Security Supervisor role. The minor distinction between the duties of a Level 4 employee and Level 5 employee fall well short of establishing coverage of the role of Security Supervisor by the Agreement.

The wording in the classification structure is identical to the wording in the Security Services Industry Award 2020 (the Award). Seemingly in recognition of the lack of contemplation for more advanced managerial responsibilities, the Award at clause 17.5 provides for a ‘Supervision Allowance’. It is the receipt of this allowance which denotes the role of supervisor to an employee, as distinct from a classification within the formal classification structure.

Agreement applies only to Employees Engaged in Supervisory Tasks on Temporary Basis

The Respondent submits that the Agreement, which does not incorporate the Award, applies similar wording in relation to the Supervision Allowance with a significant and intentional distinction. The Supervisory allowance set out in clause 4.5.3 is only applicable to employees undertaking supervisory tasks on a temporary basis. In this way, the Agreement applies to temporary or relief supervisors only.

The use of the word ‘temporary’ is a clear departure from the Award, and prima facie evidence of objective agreement that employees performing a supervisory role on a permanent basis to be excluded from the scope of the Agreement.

Agreement Language does not Support Coverage of Security Supervisors

Furthermore, the Respondent states there are limited references to Supervisors in the Agreement. Relevantly, in each reference the language infers Supervisors are outside of the coverage of the Agreement supporting our contention that Security Supervisors are not covered by the Agreement.

The Agreement, in the dispute resolution procedures at clause 2.4, refers employees in the first instance to raise disputes with the relevant supervisor. Further, the duties of a Security Officer Level 5 set out in Appendix 1, clause 1.5.2(c) provide that the employee will “assist(s) in the provision of training in conjunction with supervisors”. And clause 5.6.3 the Agreement provides that “breaks may be taken at such time as agreed between employees and their supervisors” noting that Employees is a defined term meaning a person covered by the Agreement.

Security Supervisor Salary

The Respondent states the Security Supervisors have been remunerated by way of an all-inclusive annualised salary since the commencement of the Respondent’s contract at SCUH. This approach is distinct from the modes of remuneration provided for by the Agreement, which further demonstrates the Respondent’s intention to maintain separation between the Security Supervisor role and the Agreement’s coverage.

Relevant Law

Principles of construction

The Full Bench in AMWU v Berri Pty Ltd[1] provides the principles regarding the construction and interpretation of clauses within the Enterprise Agreement which state the following:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i)the text of the agreement viewed as a whole;
(ii)the disputed provision’s place and arrangement in the agreement;

(iii)the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i)evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii)notorious facts of which knowledge is to be presumed; and

(iii)evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

More recently, the Full Court of the Federal Court of Australia stated the principles applicable to the interpretation of an enterprise agreements in James Cook University v Ridd:

“(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind”. The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose”.

(iii) Context is not confined to the words of the 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”.

(iv) Context may include “... ideas that gave rise to an expression in a document from which it has been taken”.

(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...”

(vi) A generous construction is preferred over a strictly literal approach, but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties”.

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.”[2] [references omitted]

Coverage and Classification

In determining the issue of coverage and classification, both parties cited that the issue is to be determined through the principles of “major and substantial employment” or the “principal purpose test”.

The Full Bench at paragraph [9] of the decision in Carpenter v Corona Manufacturing Pty Limited said:

“In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.
In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not "employed in the process, trade, business or occupation of ... soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials" and was not, therefore, covered by the Award.”[3]
[References omitted]

Logan J states in Construction, Forestry, Mining and Energy Union (CFMEU) v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696;

“[38] … Also, like Moore J, I do not consider that the observations made by Sheldon J are to be confined just to a case where it is necessary to choose as between which of two industrial instruments applies to particular employment. That circumstance merely provided the context in which observations of pervasive relevance came to be made by Sheldon J. What Sheldon J observed was this (as set out in Logan v Otis Elevator at 68):
The finding of the Chief Industrial Magistrate raises two questions: Firstly, whether this is a case to be determined on the principle of major and substantial employment; and, secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was.

[39] A pithy way of putting the same proposition is both quality and quantity are relevant when it comes to employee classification, subject always to the language employed in the particular industrial instrument.”

The Full Bench in Fonterra Brands (Australia) Pty Ltd v AMWU [2015] FWCFB 3912 at [16] states:

The task of determining the appropriate classification involves making findings of fact as to the requirements of the roles and applying those facts to the proper scope of the Agreement classifications. Often this is a difficult task, especially when the agreement operates on notions implied by practice and local understandings. Further, duties may be comprehended by more than one classification or be outside the scope of all classifications. In such circumstances it is necessary to determine the substantial character of the role by reference to the level of responsibilities and the duties of the position to determine the most appropriate classification from the range of classifications in the agreement. If a role does not substantially fall within the scope of any classification the consequence is that the agreement is silent on the rate of pay for that role, and depending on the scope of the agreement, the role may fall outside the agreement entirely.

I agree with the analysis of Deputy President Colman in Taveski v Qantas Services Pty Ltd [2018] FWC 4879 that the approach in Fonterra Brands is concordant with the principles set out in Berri.

Consideration

I note that the parties have articulated their positions and evidence cogently providing that reasonable minds could differ regarding the interpretation of the clauses in question.

The Agreement has limited reference to a Security Supervisor. Therefore, I am required to draw upon the wording of the Agreement to interpret Appendix 1 Clause 1.5.2.

In interpreting Appendix 1 Clause 1.5.2, I note that there is ambiguity upon first reading. Therefore, to assist with the interpretation of the clause, I have considered the matrix of activities of a Security Officer and a Security Supervisor submitted by the Applicant and Respondent. I have accepted the evidence of the Experience and Competency profile of a Security Supervisor from the Respondent to assist in the interpretation of the clause. I also consider the evidence provided by the Applicant and the Respondent in regards of the customs and working conditions of the particular industry to assist in making a determination of the question.

‘Limited Supervision’

In determining the term of a supervisor, I note that the wording of Appendix 1 – clause 1.5.2 states that a Security Officer level 5 is expected to work under limited supervision. In its plain meaning, a Security Officer would still be subjected to supervision by a supervisor.

A Security Officer Level 5 may be required to perform the following duty of ‘the coordinating, monitoring or recording of the activities of security officers utilising a verbal or computer-based communications system with a central station at the particular site or location including in or in connection with an airport security zone.’

I note this clause is susceptible of more than one meaning and therefore I will need to regard the evidence of surrounding circumstances. This is because there are aspects of this clause which overlap with Security Supervisors as they are expected to undertake this duty as well in co-ordinating, monitoring and record activities of the security officers.

However, the Security Supervisor falls outside the scope of the Agreement based on the wording ‘under limited supervision’. The principal purpose or the substantive reason for employment of a Security Supervisor is to provide supervision of the Security Officers.

I take into account that the managerial styles are different amongst the Security Supervisors per the evidence provided by Mr Phillips from the Respondent. Mr Caldwell was described by Mr Phillips as a “more hands-on supervisor” compared to his peers who would prefer to spend more time in the control room.

The Respondent provided evidence that Security Officers are rostered in different locations of the hospital and will change locations every 2 hours. One of the locations where a Security Officer may be rostered to is the control room. This practice is reflected through the wording of the Agreement stating that the Security Officers at this level ‘may be required’. It indicates that a Security Officer may be required to undertake duties at the control room per clause 1.5.2 (b) but are also required to undertake their duties outside the control room as well indicating the rostering system of the Security Officers.

However, the Security Supervisors (including Mr Caldwell) are not rostered at a specific location during their shift unlike the Security Officers, and this is because they are expected to undertake a risk assessment of the different issues that may arise in different locations in the hospital. They are required to be at the control room at some point at every shift unlike Security Officers who may not be rostered in the control room. Security Supervisors require more flexibility than what is provided in the terms provided in clause 1.5 as they will need to attend to any incidents that pose a risk.

This is consistent with the reading of the clause in its entirety. The co-ordinating, monitoring or recording of activities from the control room is reflective of the rostering of Security Officers who have been rostered to be in the control room. This is reflected through the identical definition per the clause regarding Level 4 Security Officer in Appendix 1 clause 1.4.3(c).

In reading the Agreement in its entirety and taking into consideration the contextual understanding of the terms of the Agreement, the definition of a Security Supervisors does not fall under the definition provided by a Level 5 Security Officer.

‘Assists in the provision of training in conjunction with supervisors and/or trainers’

Per the Berri principle, the first requirement is to take into consideration the plain and ordinary meaning of the words.

The Oxford Dictionary 3^rd Edition defines ‘assists’ as ‘to help’, or an ‘act of helping’ and ‘conjunction’ as ‘the action of joining; the condition of being joined, or a combination (of events and circumstances), or a number of associated persons or things.

There is potential scope that the wording of Clause 1.5(b) has more than one meaning as the phrase ‘and/or’ is used. The Applicant raises that the ‘assists in the provision of training’ reflects the Security Supervisors role to work with the Security Manager.

I note this clause is susceptible of more than one meaning and I will need to regard the evidence establishing the interpretation of this aspect of the clause.

Annexure 7 provides that a Security Supervisor is to provide and facilitate detailed training to all security officers on-site, in all disciplines performed at the Facility on an ongoing basis [in conjunction with the security manager].

The terms ‘provide’, ‘facilitate’ and ‘detailed’ are indicative of higher responsibilities of the Security Supervisor compared with ‘assist’ that is defined in the Agreement. The development of these plans requires a detailed understanding of the role and the individual and requires identifying potential gaps or weaknesses in the Security Officers skills and determining how best to address them.

This is further indication that Security Supervisors do not fall under the definition of Annexure 1 clause 1.5 with the different expectations of training compared to a Security Officer - Level 5.

Discretion within the scope of this classification

I also take into consideration the broadness of clause 1.5 which a Security Supervisor could fall under the definition regarding the work they undertake. I accept that part of the shift supervisor’s role would involve duties that could be classified as ‘security services’ that fall under the Security Officer – Level 5 classification. However, the wording of ‘discretion within the scope of this classification’ provides a limitation on the scope of what a Security Officer is expected to do. There are indications where the Security Supervisor has a wider scope than provided by Clause 1.5.2.

I have identified some aspects of the role which require higher discretion than what is provided in the Agreement.

a)providing support and advise to Clinicians,
b)escorting activities
c)risk assessments
d)debriefs following traumatic incidents
e)providing support to Queensland Fire and Emergency Service
f)monthly KPI reporting
g)responsibility for patient valuables
h)fatigue management

personal development plans

Risk Assessments

One key example is risk assessments. I note that Risk Assessments was not the subject of any evidence from the Applicant. However, the Respondent highlights this as a key role.

The Respondent was able to demonstrate that one of the principal purposes of a Security Supervisor was to undertake risk assessments.

The evidence provided from the Respondent was from Mr Phillips provided an insight regarding risk assessment. Mr Phillips was the person who had developed the security structure presently in place. He stated that one of the key differences between the Security Officer and the Security Supervisor was that the Security Supervisor was to be assessing risks during the shift and determining how to resource the potential threat whether it be patient restraint, BOC patients, locating missing patients, restraining aggressive trauma patients or escort duties which are clearly of operational risk. The Security Officers report to the Security Supervisor to determine the resources that are needed to mitigate the risk.

A Security Officer is expected to identify the risk and report the risk. However, a Security Supervisor has the additional responsibilities and the wider discretion available on making a decision to resource and address potential threats. These activities are listed by Mr Caldwell and the Applicant submits that these tasks are under the Level 5 classification.

I am not persuaded that the assessing of risk and the decision making and problem solving required to lead these suites of activities falls under a Security Officer - Level 5 classification. It appears to be activities which are supervisory or quasi managerial in nature which is outside a Security Officer’s discretion.

Fatigue management

Another example is fatigue management. Fatigue management is not reflected within the scope of the Agreement in clause 1.5 of the Agreement. The monitoring of fatigue has a leadership and supervisory dimension, that oversees and takes responsibility for the management of the Security Officers levels of fatigue rather than undertaking work in security services. This responsibility sits outside the coverage of the Agreement and indicates the job description of a Security Supervisor falls outside the classification structure presented in the Agreement.

Personal Development Plans/KPI reporting

The development of development plans with each of the Security Officers and monthly reporting of KPI’s are clearly outside the scope of the Level 5 classification structure which are supervisory and do not fall under the Level 5 classification. As described above, the definition of limited supervision indicates that the supervisor is a role that is beyond the Level 5 classification.

Determination

There are other considerations I can make in determining whether the Security Supervisors are covered by the Agreement which I have outlined at [88]. However, in considering the principal purpose and the substantial character of the role, I am satisfied that the interpretation of the Agreement and the evidence provided identifies the principal purpose of the Security Officer is distinct from a Security Supervisor. The key distinctions are that a Security Supervisor requires increased flexibility and discretion required to undertake risk assessments during a shift which is not provided in the wording of the Agreement in clause 1.5.2.

On review of the wording of the Agreement and material provided before me, I do not find that the Security Supervisors are covered as a Security Officer – Level 5 in the Agreement.

Accordingly, I find that the answer to the question posed for arbitration is:

“Are the security supervisors engaged by the Respondent at Sunshine Coast University Hospital covered by the Agreement? “ No

DEPUTY PRESIDENT

[1] AMWU v Berri Pty Ltd[2017] FWCFB 3005.

[2] James Cook University v Ridd [2020] FCAFC 123 at [65].

[3] (2002) 122 IR 387.

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