United Workers' Union v Sydney Night Patrol and Inquiry Co Pty Ltd
[2020] FWC 6621
•30 DECEMBER 2020
| [2020] FWC 6621 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Sydney Night Patrol and Inquiry Co Pty Ltd
(C2020/5429)
Security services | |
DEPUTY PRESIDENT BULL | SYDNEY, 30 DECEMBER 2020 |
Dispute about matter arising under enterprise agreement [s186(6)] - Interpretation of SNP Aviation Security (Sydney Airport) Agreement 2019 - applying the plain and ordinary meaning to the words.
[1] The United Workers Union (UWU) have filed an application seeking that the Fair Work Commission (Commission) resolve by arbitration a dispute concerning the classification of employees performing kerbside management duties at Sydney Airport. The UWU submit that the kerbside officers are covered by the SNP Aviation Security (Sydney Airport) Agreement 2019 (the Agreement) as their duties fall within the classification of Security Officer Grade 1 as set out in Schedule 1 of the Agreement. The Agreement has a nominal expiry date of 24 February 2022.
[2] The employer, Sydney Night Patrol and Inquiry Co Pty Ltd (SNP) dispute that kerbside officers are covered by the Agreement and submit that the work is covered by the Miscellaneous Award 2010. It is noted that SNP was acquired by Certis Security on 6 April 2018. 1
[3] The question for resolution by the Commission is expressed to be as follows:
“Does the SNP Aviation Security (Sydney Airport) Agreement 2019 cover employees performing kerbside management duties at Sydney Airport?” 2
[4] The UWU’s application is filed pursuant to s.739 of the Fair Work Act 2009 (the Act). Section 739 of the Act is titled Disputes dealt with by the Fair Work Commission, and states at s.739(1):
“This section applies if a term referred to in section 738 requires or allows the Commission to deal with a dispute.”
[5] Further, sub-s.739(4) states:
“If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, however described, the Commission may do so.”
[6] Clause 42 - Dispute Resolution Procedure of the Agreement provides that disputes arising under the Agreement after the parties have followed a number of stages may (where agreement has not been reached) be referred to the Commission for arbitration. As the issue in dispute arises in connection with the terms of the Agreement, and both parties agree that the preliminary steps under the dispute resolution procedure have been complied with, the dispute is properly before the Commission.
[7] Leave for SNP to be legally represented at the hearing of the matter was granted as per s.596(2)(a) of the Act.
Background
[8] In early 2009, SNP entered into a contract for services with Sydney Airport and an updated contract was entered into in around 2013. The services contract stipulates that SNP is to provide the following services:
a. Passenger Screening;
b. Virgin Premium Lounge Passenger Screening;
c. T1 Express Path Concierge Services;
d. Greeter Assistance and Queue Facilitation Services;
e. Checked Baggage Screening;
f. Enhanced Airside and Vehicle Access Control;
g. Perimeter Patrols;
h. Terminal Patrols;
i. Airside Vehicle Escorts;
j. Security Control Room Surveillance Operations;
k. Duty Free Goods Scanning;
l. Specialist Support Staff Services;
m. Ad Hoc Guarding; and
n. Work Health and Safety Compliance. 3
[9] In April 2020, Certis Security won a tender for a separate fixed term contract with Sydney Airport to provide kerbside management services at Sydney Airport. The Kerbside Management Contract commenced on 4 May 2020, with a fixed end date of 31 May 2021. 4 It is understood that SNP use a mix of employees and labour hire/subcontractors to undertake kerbside management roles.
[10] In March 2020, SNP issued notices to its employees advising that the vast majority of employees working at Sydney Airport were to be stood down pursuant to s.524 of the Act due to the significant reduction in air traffic and passenger movements owing to the impacts of Covid–19.
[11] In April 2020, SNP asked its employees at Sydney Airport who had been stood down due to Covid-19 for expressions of interest for kerbside officer positions.
[12] An extract of the internal memorandum sent to all Sydney Airport employees on 23 April 2020 asking for expressions of interest for the positions of kerbside officer at the Sydney Airport is reproduced below:
“Expressions of Interest are now open for SNP Security employees interested in performing Kerbside Officer duties within the Sydney Airport Precinct. These opportunities are only available for employees that have been stood down from their regular duties as result of COVID-19.
You will be required to work outdoors for up to 12 hour shifts in inclement weather
(rain, wind, temperature changes etc.)
These are part-time opportunities classified as Level 2 under the Miscellaneous Award 2010, paying $20.82 base rate. The successful employees will be seconded from their primary position at Sydney Airport into this role up to 31 December 2020. You will be required to commit to this role for the duration of the secondment period.
The duties include:
• Pedestrian, Traffic and Parking Management
• Dealing with difficult and irate members of the public
• Resolving disputes with challenging stakeholders – taxi drivers, members of the public etc.
• Issuing Parking Infringement notices
Successful applicants will require the following:
• High level of customer service skills
• Excellent verbal and written communication skills
• A very good understanding of general operations within Sydney Airport
• Excellent performance history and attendance record
• Ability to work a rotating roster inclusive of days, nights and weekends
Selection criteria:
• Minimum of 6 months experience at SNP with Sydney Airport
• Performance review provided by current Manager
The successful applicants will be required to complete a traffic management course which will be undertaken during regular working hours.”
[13] As a result of the request for expressions of interest, several employees were subsequently appointed as kerbside officers and the conditions of the Miscellaneous Award 2010 have been applied to their terms and conditions. 5
[14] The Agreement at clause 3 – Incidence, Parties Bound and Application,sets out who is covered by the Agreement.
“3.1 This Agreement shall be binding upon:
i. Sydney Night Patrol & Inquiry Co Pty Ltd (SNP);
ii. United Voice;
iii. Transport Workers Union (TWU);
iv. Employees of SNP engaged in the performance of aviation screening, airport security, customer service, works safety officer duties and classified at one of the levels in Schedule 1 and who work in the Sydney Airport precinct; and
3.2 This Agreement shall not apply to Duty Shift Managers, whether engaged as such, or whilst relieving.”
[15] It is submitted by the UWU that employees performing kerbside management duties fall within the criteria of subclause 3.1(iv) set out above and are therefore covered by the Agreement.
Evidence and submissions of the UWU
[16] The UWU submit that subclause 3.1(iv) of the Agreement is neither ambiguous nor susceptible to more than one meaning, and that the plain and ordinary meaning of subclause 3.1(iv) leads to a finding that employees performing kerbside management work are covered by the Agreement.
[17] It is submitted that employees working in the kerbside area perform a mix of airport security and customer service duties as required by subclause 3.1(iv).
[18] The customer service duties of kerbside officers are said to be:
a) acting as a first point of contact for customers arriving at the airport or exiting the terminal;
b) assisting customers with a wide range of queries, including by providing information about airport services, giving directions, advising of transport options, and providing information concerning departure and arrival times, delays, etc;
c) assisting customers with transporting their luggage;
d) assisting customers with parking by advising of parking restrictions and alternative parking options;
e) managing and resolving disputes between customers and taxi – drivers;
f) managing disputes between stakeholders; and
g) deescalating situations involving angry and upset customers. 6
[19] It is further submitted that SNP’s Standard Operating Procedures (SOPs) confirm that kerbside employees are required to perform several customer services duties and that the expressions of interest memorandum required a high level of customer service skills as a key requirement for the role.
[20] The airport security duties of kerbside officers are said to be:
a) dealing with angry customers, including by attempting to de-escalate potential conflicts;
b) monitoring and reporting incidents, including illegal parking, traffic accidents, unattended vehicles and suspicious packages;
c) contacting the Australian Federal Police regarding any potential security concerns:
d) enforcing Covid 19 related restrictions;
e) managing access to the terminal; and
f) enforcing parking restrictions.
[21] Further, the SOPs issued by SNP highlight the security duties required to be undertaken by employees performing kerbside management duties.
[22] Under the Agreement at clause 1.1 of Schedule 1, the roles and responsibilities of a Security Officer Grade 1 are set out as follows:
“1.1 Security Officer Grade 1 means a person employed in one or more of the following capacities:
a) to watch, guard or protect persons and/or premises and/or property;
b) to respond to basic fire/security alarms at their designated site/post;
c) as an employee stationed at an entrance and/or exit whose principal duties include the control of movement of persons, vehicles, goods and/or property coming out of or going into and/or moving within 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 and/or gate pass and who also may have other duties. to perform and including an area or door attendant or commissionaire in a commercial building;
d) to carry out crowd control duties;
e) a Security Officer Grade 1 may use electronic equipment such as hand held scanners or simple closed circuit television Systems and may be required to utilise basic keyboard skills in the performance of their duties and may also provide escort for a person or persons carrying cash provided it is incidental to other Grade
(underline of UWU) 7
[23] The UWU submit that kerbside officers are required to perform duties consistent with (a) and (c) in the definition of Security Officer Grade1 as set out above. This is because they identify and report matters of security concern, respond to incidents, administer first aid, act proactively in identifying risks and hazards, resolve and de-escalate disputes and enforce Covid–19 related restrictions and deal with irate customers or stakeholders. 8
[24] Kerbside officers control the movement of persons, vehicles and goods going into and moving within the Sydney Airport precinct, are required to enforce parking restrictions, ask vehicles to move on and manage the flow of taxis and other vehicles.
[25] On the basis of the above duties being undertaken by kerbside officers, the UWU submit that kerbside officers are appropriately classified as a Security Officer Grade 1 under the Agreement. This is primarily because their duties satisfy the definition of Security Officer Grade 1 in that they are employed to:
• watch, guard or protect persons and/or premises and/or property and/or
• control movement of persons, vehicles, goods and/or property coming out of or going into and/or moving within premises or property 9
which are listed duties under the definition contained in the Agreement and they are performed within the Sydney Airport precinct.
[26] The UWU also point to the kerbside traffic management reference at subclause 12.10.3 of the Agreement which states that the Aviation Security Allowance is not payable for traffic control which includes kerbside traffic management or any other function for which a valid security licence is not required. This is said by the UWU to reflect the common intention of the parties for employees performing kerbside management duties to be covered by the Agreement.
[27] Mr Paul Primrose, an employee of SNP who had been seconded to work on a temporary basis as a kerbside officer in the role of leading hand at the Sydney Airport, 10 gave evidence on the behalf of the UWU. Mr Primrose was required to successfully complete a Traffic Controllers course and a Kerbside Induction course.11 Mr Primrose’s evidence of the duties performed by kerbside officers was consistent with the submissions made by the UWU. Mr Primrose commenced his secondment on or around 4 May 2020, and on 29 May 2020 was advised that his secondment had been withdrawn as the client no longer required the position of leading hand and that he would return to his normal position of Supervisor within the Qantas lobby.12
Submissions and evidence of SNP
[28] SNP contends that the role of kerbside officer is not covered by the Agreement as the classification of Security Officer Grade 1 has no application to the duties of a kerbside officer. The Agreement’s purpose is said to cover the employment of workers employed by SNP at Sydney Airport as contemplated by the Services Contract. These services principally involve security officers engaged in airport security and aviation screening duties.
[29] It was submitted that the classification structure under the Agreement describes two broad groups of employees, Security Officers and Customer Service Assistants. 13 In determining the classification coverage of the Agreement SNP rely on clause 7 – Terms of Employment of the Agreement, where at subclause 7.5 it requires employees engaged in aviation screening or airport security to hold a number of qualifications including:
“7.5.1 Be the holder of the required valid NSW Security licence
7.5.2 Be the holder of a valid Aviation Security Identification Card (ASIC)”
[30] Further, at subclause 7.6, employees engaged in customer services activities must:
“7.6.1 be the holder of a valid Aviation Security Identification Card (ASIC); … ”
[31] It is stated that kerbside officers are not required to hold valid NSW Security Licence or a Red ‘Sterile ASIC. 14
[32] SNP also rely on the terms of clause 12.10 - Aviation Security Allowance which provides for the payment of an hourly allowance for employees engaged in Aviation Security within the Sydney Airport precinct. At subclause 12.10.2 Aviation Security is defined as follows:
“12.10.2 For the purpose of this sub-clause, Aviation Security means the provision of security services including, but not limited to, passenger, goods and/or baggage security and screening, including checked baggage screening services, control room functions, guarding and controlling access to designated areas, and general security of person’s property and buildings.”
[33] And further at 12.10.3, as noted by the UWU, Aviation Security is stated to exclude kerbside traffic management or any other function for which a valid security licence is not required:
“12.10.3 For the purposes of this subclause, Aviation Security does not include traffic control (including kerbside traffic management), carparking services, customer service or any other function for which a valid security license is not required.”
[34] SNP do not accept that the reference to kerbside traffic management at 12.10.3 amounts to an agreement by the parties that these duties were contemplated in the drafting of the Agreement. 15
[35] While subclause 3.1(iv) refers to ‘airport security’ there is no definition in the Agreement of this term, whereas the Agreement contains a definition of ‘aviation security’ for the purposes of subclause 12.10.2.
[36] To be able to be engaged in a security activity at Sydney Airport, Security Officers must hold a security licence issued in accordance with the Security Industry Act 1997 (NSW) (Security Act) and the Security Industry Regulation 2016 (NSW). The Security Act defines at section 4 the carrying on of a security activity which includes at 4(c) patrolling, protecting or guarding any property by physical means in circumstances that include at 4(c)(v) patrolling, protecting or guarding an airport or any other infrastructure.
[37] The relevant licence to be able to carry out a security activity as defined by the Security Act is a Class 1A Security Licence which authorises the holder to patrol, protect or guard any property while unarmed. 16
[38] It is submitted by SNP that an ambiguity exists in the language used in the Agreement classifications when compared to the Agreement as a whole. 17 On this basis it is submitted that evidence of the surrounding circumstances in the negotiations of the Agreement should be admissible to aid in the interpretation of the Agreement. It is submitted that at the time of negotiating the Agreement the Kerbside Management Contract did not exist and was not contemplated by SNP in considering what employees should be covered by the Agreement. The Agreement was designed only to cover employees performing the Services set out in the Services Agreement.18
[39] It is submitted that employees engaged in kerbside management roles are not engaged in the performance of either aviation screening, airport security, customer service or works safety officer duties as contemplated by the Agreement classifications contained in Schedule 1 – Classification Structure.
[40] In particular, kerbside officers do not perform airport security or customer service duties and the performance of such duties requires an employee to hold specific qualifications including relevant security licenses, which are not required for the kerbside officer role. Additionally, kerbside traffic management is specifically excluded from Aviation Security at clause 12.10 of the Agreement. 19
[41] While kerbside officers duties include a degree of customer service it is not to the extent defined at Schedule 1 - Classification Structure under the classification of Customer Service Assistant of the Agreement. 20
[42] It is put that the primary purpose of a kerbside officer is traffic control of vehicles and pedestrians at Sydney Airport. Kerbside officers are not engaged to watch guard or protect persons and/or premises and/or property as submitted by the UWU. Nor are kerbside officers stationed at an entrance or exit with the principal duties to control the movements of persons, vehicles, goods and/or property coming out of going into and/or moving within the premises or property.
[43] Mr Sam La Spina, the National Manager – Employment and Industrial Relations for Certis Security gave evidence on behalf of SNP and provided a witness statement. Not having been employed in this position until October 2018, Mr La Spina was not privy to the negotiations of the earlier enterprise agreements which preceded the current Agreement. Mr La Spina attended negotiations for the current Agreement and stated that there was no discussion concerning the Schedule 1 classifications and descriptions of positions covered by the Agreement. 21 Further, at the time of drafting the Agreement the Kerbside Management Contract did not exist and was not contemplated.22
[44] Mr La Spina stated that in providing services to Sydney Airport, the Services Contract requires Security Officers to hold a NSW Security Licence which authorises the employee to patrol, protect or guard any property while unarmed. In April 2020, Certis Security was successful in tendering for a fixed term contract with Sydney Airport to provide kerbside management services at Sydney Airport, which Mr La Spina stated was a good opportunity for Certis Security staff that had been recently stood down to be gainfully employed in an alternative capacity. 23
[45] Mr La Spina stated that the Kerbside Management Contract initially required four Team Leaders and 10 kerbside officers. Mr La Spina referred to the duties of a kerbside officer, as set out in the Position Description. 24
[46] Mr La Spina stated that kerbside officers are not required to perform any security related duties. Rather, they are required to direct any security concerns to the relevant Security Officer on site or within the vicinity of the kerbside area. The primary duties of kerbside officers involve diverting traffic to ensure the kerbside areas run smoothly without delay. 25
[47] Mr La Spina’s evidence was that kerbside officers do not watch, guard or protect premises or property; nor do they respond to basic fire/security alarms and are not stationed at an entrance or exit to control the movement of persons vehicles goods and/or property. 26
[48] Mr La Spina’s evidence was that kerbside officers are not required to hold a NSW Security Licence or a Red ‘Sterile ASIC’ as they are not required to perform any aviation screening or airport security duties and do not enter any Sterile Areas of Sydney Airport. 27 Kerbside officers are permitted to access all areas accessible by the general public.
Conclusion
[49] The approach to interpreting industrial instruments is well-established in decisions of this Commission and courts. The Federal Court in WorkPac Pty Ltd v Skene28 provided the following summary of the approach to the interpretation of an enterprise agreement:
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes[1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”: AmcorLimited v Construction, Forestry, Mining and Energy Union[2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).”
[50] The Full Federal Court observations are consistent with the approach taken by the Full Bench of this Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited AMWU29 (Berri). The Commission is required to ascertain the objective intention of the disputed term of the enterprise agreement having regard to the language and terms of the agreement, when read as a whole, and having regard to its context and purpose. Narrow or pedantic approaches to construction should be avoided accepting that provisions of an industrial agreement are likely to have been drafted without the skill and attention of a trained legal mind.30
[51] As can be seen from the above, an agreement should not be interpreted in a vacuum divorced from industrial realities.31 Neither party disputed the process of how an enterprise agreement should be interpreted with both referring to the Berri Full Bench decision.
[52] Evidence of surrounding circumstances should be limited to evidence tending to support the plain language of the Agreement, which may include objective background facts known to both parties,32 the subjective intentions of the parties do not assist in this process. While context and purpose of an agreement will be relevant, ultimately, the task is to give effect to the meaning of the words in dispute objectively construed.33 The relevant “context” to be considered in interpreting an agreement extends to the origins of a particular clause. Although, most often, the immediate context, being the clause in which the words to be interpreted appear, will be the clearest guide.34
[53] I am unable to accept the contention of SNP that any of the relevant Agreement terms are ambiguous, that is, susceptible to more than one meaning.35 It was not made clear to the Commission by SNP exactly what terms of the Agreement were ambiguous requiring the admission of background objective facts to aid in the interpretation of the Agreement.
[54] As stated by the Full Court in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union 36 ambiguity exists when a provision in an enterprise agreement is capable of more than one meaning. As is often the case in enterprise agreements, the wording and context could be clearer, however in respect of the wording the Commission needs to have regard to in this matter it is able to be interpreted according to its ordinary and plain meaning having regard to context and purpose.
[55] I accept as an objective fact that in or around April 2020, Certis Security obtained a fixed term contract with Sydney Airport to provide kerbside management services which commenced on 4 May 2020 which is expected to end on 31 May 2021.37 I further accept that contemplation of this contract could not have been a consideration during negotiations for the Agreement, although this is not a determinative factor as to whether the Agreement coverage applies to employees engaged to perform work as a result of Certis Security obtaining the Kerbside Management contract. As the UWU point out, there is a reference to ’kerbside traffic management’ at subclause 12.10.3 of the Agreement.
[56] The coverage terms of the Agreement are found at clause 3 – Incidents, Parties Bound and Application. This clause states that the Agreement shall be binding uponthe employer, the UWU, the TWU and relevantly at subclause 3.1(iv):
“Employees of SNP engaged in the performance of aviation screening, airport security, customer service, works safety officer duties and classified at one of the levels in Schedule 1 and who work in the Sydney Airport precinct;”
[57] The effect of this subclause is the establishment of three requirements to establish employee coverage under the Agreement:
i. employees must be engaged in the performance of duties in one of the listed work areas being:
• aviation screening,
• airport security,
• customer service, or
• works safety officer duties
ii. employees must be classified at one of the levels in Schedule 1
iii. employees must work in the Sydney Airport precinct.
[58] In respect of the first requirement it is not suggested the kerbside officers perform aviation screening or works safety officer duties. While disputed by SNP, the UWU submit that kerbside officers undertake airport security and/or customer service duties.
[59] In respect of the second requirement kerbside officers must be classified at one of the classification levels in Schedule 1, each of which contains a definition. The UWU contend that the classification of Security Officer Grade 1 is the appropriate classification which SNP disputes, submitting that there is no appropriate classification in Schedule 1 which kerbside officers can be classified.
[60] In respect of the third requirement it is accepted by the parties that the criteria of working in the Sydney Airport precinct is met.
[61] The Commission therefore needs to determine whether duties performed by kerbside officers are those of airport security and/or customer service and if so, is the work classified at one of the levels in Schedule 1.
[62] It is not apparent on the evidence or on examination of the Position Description that the duties of a kerbside officer are those of airport security. Other than at item 8 under Responsibilities of the Position Description which states ‘identify and report matters of potential security concern’ all other responsibilities concern traffic control and customer assistance; as is clear from the listed responsibilities in the Position Description extracted below:
1. Enforcing the parking regulations under the Airports (Control of On–Airport Activities) Regulations 1997;
2. Enforcing regulations under the Passenger Transport Act 1990;
3. Provide general traffic control to the designated area, providing clear direction to vehicles and passengers;
4. Ensuring the kerbside operate safely and effectively;
5. Responding positively to queries or questions by customers;
6. Providing assistance whenever requested by elderly passengers or passengers with special needs;
7. Maintain clear communication with supervisors by radio contact, with appropriate communication techniques;
8. Identify and report matters of potential security concern; and
9. Provide Incident Reports to the supervisor regarding any notable incidents during shift, including motor vehicle incidents, customer complaints, and poor behaviour from public/taxi services. 38
[63] In regard to point (8), Mr La Spina’s evidence was that kerbside officers are required to direct any security concerns to the relevant Security Officer on site or within the vicinity of the kerbside area and are not required to perform any duties that are security related.
[64] The kerbside officer Position Description39 describes the purpose of the position in the following terms:
“Position Purpose
Kerbside officers are tasked with providing general traffic management, maintaining the safety of their designated area with a proactive approach to identifying, responding and ideally preventing incidents from occurring. Kerbside Officers also provide customer service by assisting customers with guidance in response to queries and providing assistance to less able passengers.”
[65] Consistent with the Position Purpose of the kerbside officer set out above, the evidence of Mr La Spina was that kerbside officers primarily undertake the role of diverting traffic to ensure the kerbside areas run smoothly without delay.
[66] Mr Primrose’s evidence was that kerbside officers manage traffic flows in the arrivals and departure areas including taxi movements and undertake a number of customer service activities and enforce Covid–19 related restrictions. Other than describing an occasion when he contacted the Australian Federal Police when a passenger attempted to leave a taxi without paying, he did not identify the performance of any security duties undertaken by kerbside officers.
[67] Having regard to the duties required and specified to be undertaken by kerbside officers I am not satisfied that the role can be described as falling under the category of being engaged in airport security.
[68] Even accepting that kerbside officers are engaged in the performance of ‘airport security’ it is not apparent to the Commission that their role is classified at one of the levels in Schedule 1 and in particular the Security Officer Level 1 as contended by the UWU.
[69] Subclause 3.1(iv) of the Agreement specifies that coverage extends to the performance of work that is classified at one of the levels in Schedule 1.
[70] Schedule 1 – Classification Structure sets out three types of classifications that of:
• Security Officer Grades 1-5,
• Supervisor and
• Customer Service Assistant.
[71] The classifications are set out in Schedule 1 in the following manner with accompanying definitions:
1.1 Security Officer Grade 1
1.2 Security Officer Grade 2. (This classification is also stated to include Works Safety Officer duties)
1.3 Security Officer Grade 3
1.4 Security Officer Grade 4
1.5 Security Officer Grade 5
1.6 Supervisor
2 Customer Services Personal – Customer Service Assistant
[72] The UWU submits that the appropriate classification for kerbside officers is that of Security Officer Grade 1. The definition of Security Officer Grade 1 is in the following terms:
“1.1 Security Officer Grade 1 means a person employed in one or more the following capacities:
a) to watch, guard or protect persons and/or premises and/or property,
b) to respond to basic fire/security alarms at their designated site/post,
c) as an employee stationed at an entrance and/or exit whose principal duties include the control of movement of persons, vehicles, goods and/or property coming out of or going into and/or moving within 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 and/or gate pass and who also may have other duties to perform and including an area or door attendant or commissionaire in a commercial building:
d) to carry out crowd control duties:
e) a Security Officer Grade 1 may use electronic equipment such as handheld scanners or simple closed-circuit television systems and may be required to utilise basic keyboard skills in the performance of their duties and may also provide escort for a person or persons carrying cash provided it is incidental to other Grade 1 duties, and may perform incidental duties which need not be of a security nature.
(My underline)
[73] Pursuant to the definition of Security Officer Grade 1 an employee is only required to be employed in one or more of the listed functions.
[74] It was not put by any party that kerbside officers are engaged in any of the tasks listed under (b), (d) or (e). That is, they do not respond to basic fire/security alarms at their designated site/post, do not to carry out crowd control duties and do not use electronic equipment such as handheld scanners or simple closed-circuit television systems or provide escort for persons carrying cash.
[75] The UWU submit that kerbside officers are engaged in functions (a) and (c) above, as they are required to perform security duties, including watching, guarding and protecting persons, premises and property. They are also required to control the movement of persons, vehicles and goods going into and moving within the Sydney Airport precinct. 40
[76] The evidence put before the Commission does not support the submission that kerbside officers ‘watch, guard or protect persons and/or premises and/or property’ as set out in (b). The prime role of a kerbside officer is general traffic management and associated duties as stated in the ‘Position Purpose’ set out above. This was evident from the testimony of both Mr Primrose and Mr La Spina. 41 The kerbside officer is not charged with the responsibility to watch, guard or protect persons, premises or property. If a security concern is identified kerbside officers are required to report the concern to the relevant Security Officer on site.42 In any event it is presumed that all airport employees would be required to report any security concerns.
[77] On the basis of the above, the Commission is not satisfied that kerbside officers are employed to ‘watch ,guard or protect persons and/or premises and/or property’ are specified at 1.1(a) of the Agreement.
[78] The UWU further contend that kerbside officers are undertaking the duties of a Security Officer Grade 1 on the basis that they also undertake the duties expressed at 1.1(c) of Schedule 1.:
‘as an employee stationed at an entrance and/or exit whose principal duties include the control of movement of persons, vehicles, goods and/or property coming out of or going into and/or moving within 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 and/or gate pass and who also may have other duties to perform and including an area or door attendant or commissionaire in a commercial building;’
(Underline of the UWU 43)
[79] I accept that the principal duties of kerbside officers include the control of movement of vehicles, however this duty must be read in its full context as it appears in the definition of a Security Officer Grade 1 at 1.1(c) of the Agreement.
[80] The employee performing this duty must be stationed at an entrance and/or exit where vehicles are coming out of or going into or moving within the premises or property.
[81] It is not apparent that a kerbside officer is stationed at an entrance and/or exit, they are stationed at the kerbside and as the Position Description states for the purpose of providing general traffic management and maintaining the safety of their designated area with a proactive approach to identifying, responding and ideally preventing incidents from occurring. This is consistent with the evidence provided by Mr Primrose who stated that employees working in the kerbside area are required to perform a range of duties including ‘managing traffic flows in the arrivals and departure areas’. 44
[82] Mr La Spina’s evidence was that kerbside officers are not stationed at an entrance/exit to control the movement of persons, vehicles, goods and/or property coming into/moving within premises. Mr La Spina stated that this duty is a form of control and check which is not performed by kerbside officers. 45 It was submitted that the location of kerbside management work is primarily outside of Sydney Airport terminals at areas accessible to the general public including loading dock areas, departures and taxi ranks. A kerbside officer is required to direct traffic to ensure there is order in the Terminal 2 and 3 dock areas and taxi ranks.46
[83] It was not made clear in the UWU submissions how the requirement to be stationed at an entrance and/or exit was met other than kerbside employees were controlling the movement of persons and vehicles going into and moving within the Sydney Airport precinct and worked at each of the three terminals. 47
[84] There was no evidence that kerbside employees are stationed at an entrance and/or exit which must be satisfied before the balance of the definition is considered. The duties are undertaken at the kerbside and in Mr Primrose’s evidence in the arrivals and departure areas.
[85] It was further put by SNP that the Agreement at subclause 7.5.1 requires employees engaged in airport security ‘must at all times be the holder of the required and valid NSW Security license.’ SNP state that kerbside officers are not required to hold the relevant licenses that are mandated for security officers employed at the airport and as such cannot be classified as security officers. The UWU submit that this is an internal policy decision and not relevant to the interpretation of clause 3.1.(iv).
[86] The terms of the Agreement do not allow for the employer to make an internal policy decision to waive the requirement to hold the required and valid security licence where employees are engaged in airport security, the requirement is a mandated term of the Agreement. The fact that kerbside officers are not obliged under their employment terms to hold the required and valid NSW Security license is in my view a relevant consideration in determining that kerbside officers are not performing the duties of a Security Officer Grade 1.
[87] Subclause 7.5.2 requires employees engaged in airport security to at all times be the holder of a valid Aviation Security Identification Card (ASIC). Mr La Spina’s evidence was that kerbside officers are required to hold a ‘Grey Landside ASIC’ which permits access to all areas accessible by the general public. 48 On the evidence of Mr La Spina there is a requirement to hold an Aviation Security Identification Card, while it may not be a Red ‘Sterile ASIC’ there is no specification in 7.5.2 as to any particular type of ASIC.49
[88] As pointed out by the UWU, the same wording “Be the holder of a valid Aviation Security Identification Card (ASIC)” is used for employees engaged in customer services activities at 7.6 of the Agreement. 50
[89] The UWU makes reference to clause 7.7 which states employees covered by the Agreement may be required to perform work which is incidental or peripheral to their main tasks or function and the definition of Security Officer Grade 1 under the Agreement includes the performance of incidental duties 51 which need not be of a security nature. This requirement cannot be as the UWU contend encompassed in the performance of kerbside officer duties on the basis it is currently undertaken.52 The kerbside officer’s role is a full time position with its own position description. It is the main task of a kerbside officer and is not incidental or peripheral to any other task including that of a Security Officer Grade 1.
[90] It follows that the work of kerbside officers is not that described at 1.1(c) of Schedule 1 of the Agreement and not meeting any of the other duty definitions at 1.1 cannot be considered to be classified as a Security Officer Grade 1.
Customer Service duties
[91] Clause 3.1(iv) of the Agreement which prescribes the coverage requirements of the Agreement in addition to airport security refers to employees engaged in customer service. There was an abundance of evidence that kerbside officers perform customer service duties.
[92] Mr Primrose stated that the kerbside officer role also included assisting customers with luggage especially elderly or disabled passengers, managing the flow of taxis in the taxi rank area and managing disputes between taxi drivers and passengers. Some of these duties could be described as customer service as referred to at subclause 3.1(iv) of the Agreement and are accepted as such by SNP. 53 The kerbside officer Position Description includes as responsibilities:
• Responding positively to queries or questions by customers
• Providing assistance whenever requested by elderly passengers or passengers with special needs
[93] Having accepted that kerbside officers undertake customer service duties it is then necessary to establish whether these duties are reflected in a classification in Schedule 1.
[94] Customer service duties are not listed in the definition of Security Officer Grade 1, however the UWU submitted in their reply submissions that it is sufficient that the duties are performed by an employee even if they are not reflected in a classification in Schedule 1. 54 This contention ignores the stipulated requirement contained in subclause 3.1(iv) that the duties must be classified at one of the classification levels in Schedule 1.
[95] In my view the reference to customer service duties in subclause 3.1(iv) are those defined under the classification Customer Service Assistant in Schedule 1 where following the Security Officer and Supervisor classifications at 1.1 to 1.6 is the heading - 2 CUSTOMER SERVICES PERSONNEL which contains a definition for the classification Customer Service Assistant. This classification is defined as follows:
“Customer Service Assistant means an employee whose role is to ensure passenger and other persons are provided with sufficient information and assistance to be screened efficiently and effectively before they enter the sterile area.”
[96] Under the Agreement, customer services staff are not required to hold an appropriate security licence 55 as is the case for kerbside officers, however it is not submitted by either party that the duties undertaken by kerbside officers meet definition of Customer Service Assistant.56
[97] On the basis that coverage of the Agreement as per clause 3 requires an employee to be engaged in the performance of airport security and classified at one of the classification levels in Schedule 1, and not being satisfied that kerbside officers are engaged in airport security or that there exists an appropriate classification in Schedule 1 of the Agreement, the answer to the question posed is:
The SNP Aviation Security (Sydney Airport) Agreement 2019 does not cover employees performing kerbside management duties at Sydney Airport.
DEPUTY PRESIDENT
Appearances:
A Snowball (via video-link Melbourne ) Industrial Officer for Applicant
R S Warren Counsel for Respondent
Hearing details:
2020
Sydney
10 November
Printed by authority of the Commonwealth Government Printer
<AE503661 PR725278>
1 Witness statement of S. La Spina of 16 October 2020 at [7]
2 UWU submissions of 18 September 2020 at [6]
3 Witness statement of S. La Spina of 16 October 2020 at [13]
4 Ibid at [63-64]
5 UWU submissions of 18 September 2020, at [18-19]
6 UWU submissions of 18 September 2020 at [31]
7 Ibid at [38]
8 Ibid at [41]
9 Ibid at [41-42]
10 Witness statement of 18 September 2020 Exhibit A1 at [13]
11 Letter of Temporary Secondment 21 April 2020 Attachment B to witness statement
12 Witness statement of 18 September 2020 Exhibit A1 and Attachment D
13 Written submissions of 16 October 2020 at [36]
14 Ibid at [69] and Statement of S. La Spina of 16 October 2020 at [80]
15 Written submissions of 16 October 2020 at [40]
16 Section 11 of the Security Industry Act 1997
17 Written submissions of 16 October 2020 at [49]
18 Ibid at [55]
19 Ibid at [71]
20 Ibid at [73]
21 Witness statement of S. La Spina at [40]
22 Witness statement of S. La Spina at [69(a)]
23 Witness statement of S. La Spina at [69]
24 Ibid at [72] and Position Description Exhibit SLS1 at p.134
25 Ibid at [82]
26 Ibid at [89]
27 Ibid at [79]
28 [2018] FCAFC 131
29 [2017] FWCFB 3005
30 See also Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J
31 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]; Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477 at [14]. (The principles applicable to interpretation of enterprise agreements have traditionally applied to Awards)
32 Berri at [114]
33 Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 [70], [77–114]
34 Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 517-19
35 [2020] FCAFC 50 at [67]
36 Ibid
37 Witness statement of S. La Spina of 16 October 2020, at [63]
38 Position Description Exhibit SLS1 at p.134, noting there is no point 9 in the document
39 Attachment SLS 1 to witness statement of S. La Spina
40 Outline of submissions of 18 September 2020 at [41-42]
41 Witness statement of P. Primrose at [17(i)] and witness statement of S. La Spina at [82]
42 Witness statement of S. La Spina at [82]
43 Submissions of 18 September 2020 at [38]
44 Witness statement of 18 September 2020 at [17(i)]
45 Ibid at 89(c)
46 Respondent’s submissions of 16 October 2020 at [85]
47 Outline of submissions of 18 September 2020 at [42-43]
48 Witness statement of S. La Spina at [80]
49 Ibid at [79]
50 UWU submissions of 26 October 2020 at [13]
51 Schedule 1 at 1.1(e)
52 Submissions in reply of 26 October at [19]
53 Respondent’s submissions of 16 October 2020 at [73] and at [85] of witness statement of S. La Spina
54 26 October 2020 at [22]
55 Clause 11.1
56 Ibid at [24] and witness statement of S. La Spina at [83]
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