Wilkinson v Wilson Security Pty Ltd (No 3)
[2024] FCA 705
•2 July 2024
FEDERAL COURT OF AUSTRALIA
Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705
File number: WAD 138 of 2021 Judgment of: COLVIN J Date of judgment: 2 July 2024 Catchwords: INDUSTRIAL LAW - alleged contraventions of s 45, s 323 and s 536 of the Fair Work Act 2009 (Cth) - where applicant employed on a fly-in, fly-out basis under Security Services Industry Awards 2010 and 2020 (Awards) - where first respondent provided one continuous 'long break' per roster cycle - where applicant required to work more than 48 hours without a 'long break' - where applicant required to perform pre-start checks before using company vehicles - where applicant required to work an additional 15 minutes per shift - where each shift included 'night span' hours but no permanent night shift allowance paid - where no unpaid breaks provided - where paid breaks were informal and taken opportunistically - where applicant paid at Level 2 classification under the Awards - where pay slips not particularised - whether rostering arrangements complied with 'long break' provisions contained in the Awards - whether applicant underpaid for work done - whether applicant entitled to permanent night shift allowance - whether payslips complied with the Fair Work Regulations 2009 (Cth) - whether rest and meal break provisions of the Awards complied with - whether contraventions were 'serious contraventions' under s 557A of the Fair Work Act - held first respondent contravened s 45 of the Fair Work Act by failing to comply with certain provisions contained in the Awards - held failure to pay an entitlement under Awards not alone sufficient to establish contravention of s 323 of the Fair Work Act where amount is in dispute - held first respondent contravened s 536(2)(b) of the Fair Work Act by failing to specify matters required by the Regulations - held contraventions not 'serious contraventions' - application against first respondent allowed in part
INDUSTRIAL LAW - consideration of general principles as to the construction of modern awards - reasons published by the Fair Work Commission in the award approval process considered relevant extrinsic material
INDUSTRIAL LAW - accessorial liability - whether second respondent 'involved in' the contraventions so as to establish accessorial liability under s 550 of the Fair Work Act - where contravening conduct fell outside the second respondent's work responsibilities and job description - application against second respondent dismissed
Legislation: Fair Work Act 2009 (Cth) ss 45, 323, 324, 535, 536, 539, 550, 557A
Fair Work Regulations 2009 (Cth) regs 3.44, 3.46, Division 3 Subdivision 2
Cases cited: 4 yearly review of modern awards - Plain language re-drafting - Security Services Industry Award 2010 [2018] FWCFB 6755
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241
Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878
Australian Building and Construction Commissioner v Parker [2017] FCA 564
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374
Bristow v City Petroleum Ltd [1987] 1 WLR 529
BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 283 FCR 97
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813
City of Wanneroo v Holmes (1983) 30 IR 362
Commonwealth of Australia v Cocks (1966) 115 CLR 413
Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619
Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182
Enkel v We R Finance Pty Ltd [2020] FCA 1668
Fair Work Ombudsman v Al Hilfi [2012] FCA 1166
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 3) [2023] FCA 201
Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034
Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034
Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346
Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1
Gore v Australian Securities and Investment Commission [2017] FCAFC 13; (2017) 249 FCR 167
Hazell v Sewell [2021] FCAFC 76
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757
King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123
Kucks v CSR Limited (1996) 66 IR 182
Master Builders Association of Victoria v Australian Building Construction Employees and Builders' Labourers' Federation (1981) 35 ALR 284
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908
NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883
Polan v Goulburn Valley Health [2016] FCA 440
Potter v Fair Work Ombudsman [2014] FCA 187
Re Security Services Industry Award 2010 Decision [2015] FWCFB 620
Ridd v James Cook University [2021] HCA 32; (2021) 274 CLR 495
Roebuck v Shopping Centres Australasia Property Group Re Limited [2024] FCA 503
Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67
Short v FW Hercus Pty Ltd (1993) 40 FCR 511
Soliman v University of Technology, Sydney [2008] FCA 1512
SOS Nursing & Home Care Service Pty Ltd v Smith [2013] FCA 295
Sydney Night Patrol and Inquiry Company Limited t/as SNP Security v Pulleine [2014] FCA 385
Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148
Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829
Wilkinson v Wilson Security Pty Ltd [2022] FCA 756
Wilkinson v Wilson Security Pty Ltd (No 2) [2022] FCA 1161
WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536
Yorke v Lucas (1985) 158 CLR 661
Division: Fair Work Division Registry: Western Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 304 Date of hearing: 18-22 September 2023 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Mr M Felman KC with Mr N Petrie Solicitor for the Respondents: Seyfarth Shaw Australia ORDERS
WAD 138 of 2021 BETWEEN: PETER LESLIE WILKINSON
Applicant
AND: WILSON SECURITY PTY LTD (ABN 90 127 406 295)
First Respondent
JOSE CANADAS
Second Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
2 JULY 2024
THE COURT ORDERS THAT:
1.The proceedings as against the second respondent are dismissed.
2.There be a case management hearing as to the future conduct of the proceedings as against the first respondent on a date to be fixed upon request by the applicant or the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
From 14 April 2015 until 22 July 2021, Mr Peter Wilkinson worked for Wilson Security Pty Ltd as a security officer. For the period up until 11 April 2016, Mr Wilkinson was employed as a casual employee. Thereafter, he was a full-time employee. His place of employment was a site operated by Woodside Petroleum Ltd on the Burrup Peninsula in the Pilbara region of Western Australia. Wilson Security was contracted to provide services to Woodside at the site. During the period of his employment, Mr Wilkinson lived in Perth. His employment was on a fly‑in, fly‑out or FIFO basis.
Mr Wilkinson claims that Wilson Security contravened the Fair Work Act 2009 (Cth) in a number of respects arising from the circumstances of his employment. He also claims that Mr Jose Canadas, who was employed by Wilson Security as a facilities protection manager during much of the relevant period, was an accessory to many of the contraventions alleged against Wilson Security.
Most of the alleged contraventions take the form of claims that Wilson Security contravened the terms of the applicable modern award and thereby contravened s 45 of the Fair Work Act (which provides that a person must not contravene a term of a modern award). It is common ground that the award that applied in the early part of Mr Wilkinson's employment was the Security Services Industry Award 2010 (2010 Award) and that towards the end of his employment it was the Security Services Industry Award 2020 (2020 Award) that applied (together, the Awards).
Some of Mr Wilkinson's claims are also couched as alleged contraventions of s 323(1) of the Fair Work Act which provides that an employer must pay an employee in relation to the performance of work 'in full', 'in money' and 'at least monthly'. As to those allegations, the position of Wilson Security is that s 323(1) is concerned with the mode and frequency of payment by an employer of amounts that the employer has identified as payable. So, on its case, if an employer has failed to identify and pay an amount as payable then that conduct may amount to a contravention of another provision of the Fair Work Act but it is not a contravention of s 323(1).
There are also claims concerning alleged breach of provisions that relate to the provision of pay slips and the keeping of relevant records by Wilson Security. Section 536(1) provides that an employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work. Section 536(2)(b) provides that the pay slip must be in the form prescribed by regulations and include any information prescribed by regulations. The relevant prescription has been made by Subdivision 2, Division 3 of Part 3-6 of the Fair Work Regulations 2009 (Cth) (Regulations). It includes a requirement that the pay slip must specify 'any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement' (see reg 3.46(1)(g)). An employer also must not give a pay slip that the employer knows is false or misleading (see s 536(3)).
Up until 30 June 2016, Mr Wilkinson worked a three-week roster being two weeks on and one week off. From 1 July 2016 until the end of his employment in 2021 Mr Wilkinson worked a four-week roster being two weeks on and two weeks off. When he was rostered on to work he was required to work 14 consecutive 12-hour shifts with a 12-hour break in between each shift. Each work day he travelled by car from accommodation arranged by Wilson Security for its FIFO employees to his rostered place of work. The car was provided by Wilson Security.
Mr Wilkinson makes the following allegations and advances the following claims:
(1)by reason of the rostering arrangements that applied during Mr Wilkinson's employment, Wilson Security contravened the long break provisions in the Awards by providing only one continuous long break in each roster cycle;
(2)by reason of the rostering arrangements, Wilson Security failed to meet requirements in the Awards that provided that employees must not work more than 48 hours of ordinary time without a long break of at least 48 continuous hours;
(3)by directing Mr Wilkinson to arrive at work 15 minutes before his rostered start time, but only paying him from his rostered start time, Wilson Security contravened s 323(1) by failing to pay Mr Wilkinson in full in relation to the work performed by him;
(4)by directing Mr Wilkinson to arrive at work 15 minutes before his rostered start time, Wilson Security directed Mr Wilkinson to work in excess of his rostered shift contrary to the Awards;
(5)by requiring Mr Wilkinson from 22 March 2016 to complete vehicle prestart checks and paperwork before departing by car from his accommodation, Wilson Security required Mr Wilkinson to commence his employment 45 minutes before his rostered start time but only paid him from his rostered start time, thereby contravening s 323(1);
(6)by requiring Mr Wilkinson from 22 March 2016 to complete vehicle prestart checks and paperwork before departing by car from his accommodation, Wilson Security required Mr Wilkinson to commence his employment 45 minutes before his rostered start time and thereby directed Mr Wilkinson to work in excess of his rostered shift contrary to the Awards;
(7)by failing to provide an unpaid meal break of at least 30 minutes during each rostered shift, Wilson Security contravened the meal break provisions in the Awards;
(8)by failing to provide a paid rest break or breaks of 30 minutes in total during each rostered shift, Wilson Security contravened the rest break provisions in the Awards;
(9)by paying Mr Wilkinson as a Level 2 Security Officer when he was undertaking the duties of a Level 4, alternatively Level 5, Security Officer, Wilson Security contravened the classification provisions in the Awards and failed to pay Mr Wilkinson in full for the work performed by him;
(10)by rostering Mr Wilkinson to work 12-hour shifts which started at 5.00 am or 5.00 pm (with the consequence that every shift included part of the period between midnight and 6.00 am), but not paying a permanent night shift allowance (and instead only paying a regular night shift allowance), Wilson Security contravened the night shift allowance provisions of the Awards;
(11)Wilson Security failed to comply with provisions in the Awards which required the employer to prepare and post a roster showing the rostered hours of work;
(12)by only showing an hourly rate of pay and not detailing amounts paid which were loadings, allowances, penalty rates or other separate entitlements, Wilson Security failed to provide pay slips with the information that was required by the Regulations;
(13)by failing to correct and update pay slips when correcting errors in earlier payments, Wilson Security failed to comply with provisions in the Regulations that required an employer to correct a record that the employer was required to keep;
(14)by failing to break down back pay amounts at the time they were paid to Mr Wilkinson, Wilson Security failed to comply with the provisions in the Regulations concerned with pay slips; and
(15)by providing pay slips which identified certain amounts by reference to particular codes and by failing to respond to inquiries about the meaning of the codes, Wilson Security provided information in pay slips that it knew was false or misleading, contrary to s 536(3).
In order to distinguish between separate aspects of the contraventions alleged by Mr Wilkinson and important respects in which his alleged contraventions rested upon distinct foundations, the above list does not correspond with the numbering adopted by Mr Wilkinson when presenting his case. However, it seeks to incorporate all of his claims.
Section 557A(1) of the Fair Work Act provides that a contravention by a person of a 'civil remedy provision' is a 'serious contravention' if (a) the person knowingly contravened the provision; and (b) the person's conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons. It is a provision that applies to conduct after 15 September 2017 (being the commencement date of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) which introduced s 557A(1)). The 'civil remedy provisions' in the Fair Work Act are identified in a table set out in s 539. Relevantly for present purposes, they include relevant breaches of s 45, s 323(1) and s 536(1), (2) and (3).
Of the allegations and claims listed above, Mr Wilkinson claims that each of (1), (2), (3), (5), (12) and (15) were serious contraventions by Wilson Security.
Further, Mr Canadas is alleged to be an accessory to the contraventions alleged at (1) to (8) (inclusive) and (11).
As to relief, Mr Wilkinson seeks: (a) an order that would require Wilson Security to give him corrected pay slips up until 18 December 2019; (b) orders requiring Wilson Security to pay any underpayment of wages (with interest); (c) an order directing his employment to be reclassified and for consequential back pay; and (d) orders for pecuniary penalties to be imposed.
By orders made on 15 August 2023, the issue of the quantum of any pecuniary penalty and the payment of that penalty is to be determined separately. Further, by orders made on 22 August 2023, the issue of the quantum of any order by way of compensation or damages is also to be determined separately and after the final hearing on all other issues. Accordingly, the parties did not present any submissions as to quantification of those amounts. I take the view that any issue of quantification of claims to amounts by way of back pay is also encompassed by these orders. Therefore, these reasons are not concerned with the quantum of any pecuniary penalty nor with the quantum of any order by way of compensation or damages or amounts of back pay.
Finally, I note that Wilson Security maintains that if there is to be any compensation or further back pay to Mr Wilkinson then, for various reasons, it is entitled to a form of setoff because it has already made payments by way of compensation or back pay to Mr Wilkinson. The final hearing proceeded on the basis that the merits of the pleaded claims of setoff would be evaluated in determining the quantum of any amount to be ordered by way of compensation or back pay. This was done because Wilson Security did not present its evidence as to relevant calculations until close to trial and, as a matter of practicality, it made sense to identify which, if any, of the claims made by Mr Wilkinson were upheld before undertaking the calculations given the number of possible permutations.
Structure of these reasons
I will first deal with matters of general principle concerning the proper construction of awards. I will then address matters that were raised by Wilson Security as to the credibility of the evidence given by the witnesses for Mr Wilkinson, including Mr Wilkinson himself. I will then consider the credibility of the account given by Mr Canadas and other witnesses for Wilson Security. Then I will address each of the claims advanced by Mr Wilkinson and determine whether any of the alleged contraventions have been established. After that, I will deal with whether any of the contraventions as established might be properly characterised as 'serious contraventions'. I will then deal with the accessorial claims against Mr Canadas. Finally, I will deal with the terms of any relief.
General principles as to the proper construction of awards
In considering the principles to be applied in construing awards, some cases reference the principles that apply when interpreting commercial contracts: see, for example, Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [34] (Tracey J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [17]-[18] (Marshall, Tracey and Flick JJ); see also Hazell v Sewell [2021] FCAFC 76 at [21] (Rares J, Flick and Kerr JJ generally agreeing). However, awards are instruments which take effect pursuant to the Fair Work Act which governs the procedure for making and approving awards. Further, most of the parties to whom the provisions of an award apply will not have participated in the process by which the terms of the award are established. This will have a bearing upon whether circumstances known to parties involved in the negotiation of the award may be resorted to in construing the award: see the observations of Mortimer J (as the Chief Justice then was) in Polan v Goulburn Valley Health [2016] FCA 440 at [34].
To interpret an industrial award, the Court must first consider 'the natural and ordinary meaning of its words … read as a whole and in context': City of Wanneroo v Holmes (1983) 30 IR 362 at 378-379 (French J), quoted in King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123 at [40] (Collier, Katzmann and Jackson JJ).
The aim of this inquiry is to ascertain the objective meaning of the award, in light of its industrial and statutory context and purpose: see, for example, Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2], [13] (Gleeson CJ and McHugh J), [114] (Kirby J); and Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 at [22] (Siopis, Buchanan and Flick JJ).
Therefore, the language of modern awards is to be construed having regard to the whole of the terms of the award when considered in its industrial and statutory context. The Court adopts a purposive rather than 'narrow or pedantic' approach: Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); King at [42] (Collier, Katzmann and Jackson JJ).
Industrial instruments in general are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests: Ridd v James Cook University [2021] HCA 32; (2021) 274 CLR 495 at [17] (Kiefel CJ, Keane, Gageler, Gordon and Edelman JJ) citing City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57] (French J).
It has been said that an award should be construed in a way that 'contribute[s] to a sensible industrial outcome': Amcor at [96] (Kirby J); see also WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ); and Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182 at [9] (Reeves, Bromberg and O'Callaghan JJ). This is to say that an award will have an evident coverage and type of employment context to which it is to be applied and there must be due regard to the practicalities posed by that evident context when construing the terms of the award. The Court approaches the terms of an award presuming that they are intended to be effective: Hay Point Services at [20] (Reeves, Bromberg and O'Callaghan JJ).
An award should generally be construed consistently with the purposes and objects of the Fair Work Act: see, for example, Amcor at [102]-[103] (Kirby J); and Hay Point Services at [17] (Reeves, Bromberg and O'Callaghan JJ).
Otherwise, it appears that the extent to which extrinsic material can be relied upon to construe an award is not entirely settled: Soliman v University of Technology, Sydney [2008] FCA 1512 at [84] (Jagot J). It is likely that the history or development of particular clauses (and expressions) may be taken into account and arguably provide valuable context: Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); see also Amcor at [140] (Callinan J). That is to say, matters of historical context may be resorted to in order to support a conclusion that a particular settled historical meaning has been adopted in the award. This context may include '… documents with which [the award has] an association' and '… the ideas that gave rise to an expression in a document from which it has been taken': Short at 518 (Burchett JJ) quoted in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [53] (French J).
However, it has been emphasised that an award should primarily be understood by reference to its language: King at [43] (Collier, Katzmann and Jackson JJ); City of Wanneroo v Holmes at 380 (French J). For example, in King, Collier, Katzmann and Jackson JJ write that:
… the texts of modern awards are widely available to members of the public and should be reasonably capable of being understood and implemented by participants in the relevant industry by reference to the language of the award itself, without having to delve into the pedigree of the instrument. That is especially so where, as here, non‑compliance with an award can expose a person to pecuniary penalties …
An award is an 'instrument' made by an authority and is, therefore, subject to the Acts Interpretation Act 1901 (Cth): City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [52] (French J); see also s 46(1)(a) Acts Interpretation Act. I note that 'fair work instruments' under the Fair Work Act are not 'legislative instruments': reg 6 of the Legislation (Exemptions and Other Matters) Regulation 2015 (Cth); s 12 of the Fair Work Act.
The process for approval and revision of modern awards requires consideration of their terms by the Fair Work Commission. Hearings may be conducted in which competing positions are considered and reasons may be published by the Commission. Those publicly available reasons reveal contextual matters concerning the text that came to be approved for inclusion in the award. In my view, information of that kind is relevant extrinsic material that may be used to ascertain the objective meaning of the Awards.
The witnesses for Mr Wilkinson
Mr Wilkinson gave clear and convincing evidence. At times he resisted accepting propositions that were put to him in cross-examination based upon his insistence upon the significance of particular terminology. In that way, it might be said that he had an eye to the case that he was seeking to advance. However, his evidence on those occasions did not suggest that he was crafting his evidence to suit his case. Rather, he was concerned to be precise given the claims that he sought to advance based upon his view as to the meaning of the Awards. He made many concessions during his evidence as to matters that supported the case being advanced by Wilson Security. For example, he made concessions to the effect that there was no direction given to him about the use of company vehicles and to the effect that once handover was complete he was usually allowed to leave even though the rostered end time for his shift had not been reached. He made concessions about occasions when there might be a 'rush hour' at certain times and other times not a lot of people working at the relevant part of the site where Mr Wilkinson was deployed to work. He was candid about the process he had used to determine travel distances that he travelled to work by car from the accommodation camp arranged by Wilson Security. He accepted that the time for a handover could quite possibly have been for two minutes and he might have left work as soon as the handover was completed even though there was some time until the rostered end of shift. He accepted that as to the direction requiring attendance 15 minutes before the start of a shift, sometimes the time when he arrived would be 12 minutes before or 10 minutes before but said that he always did his best to be there at least 15 minutes before the rostered start time for the shift. Subject to what is said below concerning his evidence about certain written records, I accept his evidence as reliable.
Mr Wilkinson's evidence questioned the accuracy of certain daily records kept of activities undertaken by the security officers. In particular, he expressed the view that the start and finish times in those records were manufactured. He expressed that view when being cross-examined about a record prepared in 2015 (which was well before he raised issues with Wilson Security about the matters that are the subject of the proceedings). I also formed the view that at other times Mr Wilkinson went out of his way to find reasons why the records may be questioned. I do not accept those aspects of his evidence as having an adequate foundation. I consider them to be a manifestation of his frustration with what he considered to be an attempt to attribute a degree of accuracy to the records that was inconsistent with his experience of the way in which they were maintained on a day-to-day basis. Whilst I accept that there were reasons why the records may not be entirely accurate (including because the daily running sheet record was required to be submitted a considerable time before the end of a shift and therefore, to that extent, recorded what was expected to occur), I do not accept that the records were falsified in any way or are of no assistance.
In the result, as I explain below, on the main issues there was a considerable degree of consistency in the account given by all witnesses as to those aspects of the day-to-day activities of security officers when working for Wilson Security at the Woodside site over the relevant period that are relevant for present purposes. The real dispute was not as to facts but as to the legal conclusions that followed from those facts.
Three other former employees of Wilson Security were also called by Mr Wilkinson to give evidence in support of his case. They were Mr Stephen Corke, Mr Paul Hamilton and Mr Stephen Gardiner. They each provided affidavits and were cross-examined as to the circumstances in which the affidavits were prepared. Comparison between the terms of much of Mr Wilkinson's affidavit and the affidavits of the other three employees reveals that they contain evidence expressed in substantially the same terms, often being in identical terms save for a few word changes. Having regard to the extent to which the same language was used in the affidavits, I infer that they were not prepared independently. That is to say, each was drafted by reference to the same document and expressed evidence in substantially the same terms. Before considering submissions for Wilson Security as to the conclusions that might be reached as to the reliability of the evidence in those circumstances, it is necessary to provide some context.
The proceedings brought by Mr Wilkinson were initially advanced as representative proceedings which Mr Wilkinson sought to conduct on behalf of all employees of Wilson Security who worked at the Woodside site at the time he was employed by Wilson Security. Mr Wilkinson sought to conduct those proceedings by appearing in person as the representative applicant.
In 2022, I determined that Mr Wilkinson ought not be allowed to have the conduct of the representative proceedings by appearing on his own behalf and made conditional orders for the proceedings not to continue as representative proceedings: see Wilkinson v Wilson Security Pty Ltd [2022] FCA 756; and Wilkinson v Wilson Security Pty Ltd (No 2) [2022] FCA 1161. Later, legal representation was obtained for other employees to continue the representative proceedings. Mr Wilkinson elected to continue his own personal proceedings against Wilson Security. All of which is to explain that, at the outset, Mr Wilkinson was seeking to bring proceedings on behalf of all employees. Further, it was apparent from the evidence that Mr Wilkinson and the other three witnesses had been discussing amongst themselves their concerns with the way they had been paid and those discussions had started well before the proceedings were commenced. For employees to discuss grievances of that kind and consider the way they might be expressed is understandable.
However, in the course of the cross-examination of Mr Wilkinson and each of the other three employees who gave evidence at the hearing it emerged that there had been extensive communications between them about the claims they wished to make against Wilson Security when preparing their affidavits.
Mr Corke gave evidence that he drafted 'the bulk of' his own affidavit out of his own memory. But he also said that it was based on talking with Mr Wilkinson and other people. His evidence was that he and Mr Wilkinson were discussing and typing at the same time when preparing his affidavit. He maintained that he typed his own affidavit and he attributed the similarities to the fact that they were discussing and typing at the same time. He also explained how 'at the start' (which I take to be at the time the representative proceedings were being prepared) all four of them were 'sending emails around to each other to make sure no points were missed'. He said that some remembered some parts and some remembered others.
I do not accept Mr Corke's explanation of how his affidavit was prepared as being entirely frank. It does not explain why there are substantial parts of the affidavits of all four witnesses that are effectively expressed in identical terms.
In the circumstances, I find that the contents of the affidavit evidence of Mr Corke are not an independent account. Rather they record, in effect, a kind of joint account prepared after discussions in which he participated with Mr Wilkinson, Mr Hamilton and Mr Gardiner. I do not accept that it is a version that was drafted based upon his own independent recollection. Taking account of the evidence given by the other three as to the process by which the affidavits were prepared, it appears to be a version of events that was prepared in a collaborative way. It follows that to the limited extent that matters covered by the affidavit are contentious the evidence must be viewed with circumspection of a kind that allows for the way in which the evidence was prepared.
However, in my assessment, when Mr Corke was cross‑examined about the relevant events, he gave his evidence in clear terms. Generally speaking, he was cooperative and made concessions. For example, he agreed that at the location known as BMF (one of four main work sites) things were much quieter. He agreed that most of the 'computer-based work' was done by the shift supervisor and the administration staff.
Nevertheless, in relation to the evidence of Mr Corke as a whole, I formed the view that he had an eye to the contentions that Mr Wilkinson was seeking to advance and that affected those aspects of his evidence that sought to describe the general day-to-day practice in relation to the taking of breaks by security officers.
Otherwise, I generally accept Mr Corke's oral evidence making due allowance for the matters I have identified.
Mr Hamilton explained that he worked with Mr Wilkinson in preparing his affidavit. He said that they were 'working together to recall certain events that happened during the course of employment'. He maintained that he wrote a good proportion of the affidavit himself. His explanation for the similarity between his affidavit and that of Mr Wilkinson was that they were talking together and came up with the form of words together.
When shown the respects in which his affidavit was identical to that of Mr Wilkinson's, Mr Hamilton persisted in maintaining that the words in his affidavit were his own words. When taken to the extent to which the same words were used in his affidavit as in the affidavit of Mr Wilkinson, he maintained that the account in his own affidavit was accurate but otherwise he was evasive as to answering the questions that were being put. In my view, those exchanges reflected adversely on the reliability of his affidavit evidence because he was not willing to concede that the language in the affidavits was similar when it was obviously the case that the language was similar. In general, I do not regard the contents of his affidavit to be his own account. I find that it is an account prepared by someone else, probably Mr Wilkinson, with which he has agreed.
As to the evidence that he gave when cross-examined I formed the view that he was keen to answer questions in a way that supported the case being advanced by Mr Wilkinson, especially in relation to questions that were based on the written records concerning arrangements for handover and breaks. Therefore, his evidence was to be considered with that aspect in mind. However, I did not form the view that his oral evidence was unreliable in the sense that he was seeking to give a false account.
Mr Gardiner gave evidence to the effect that his affidavit had been prepared in a context where there had been discussions between Mr Wilkinson, Mr Corke, Mr Hamilton and himself that had been ongoing for some time about concerns that they had with Wilson Security. He said that those discussions began when they were first told that they were owed substantial amounts by Wilson Security (which, as explained below, was in November 2019 well before proceedings were commenced in this Court). As to the contents of the affidavit, he said that the affidavit was not his own words but was based on information he had accumulated and was to 'mirror the concerns' and corroborate the evidence of Mr Wilkinson. He expected that there were many paragraphs in his affidavit that were relatively identical to paragraphs in Mr Wilkinson's affidavit.
In giving his oral evidence when cross-examined, Mr Gardiner was a relatively uncooperative witness. By that I mean that he was not prepared to simply answer a question when put. An example was an extended exchange about whether he was ever directed by Wilson Security that he must use the cars that were provided by Wilson Security as the means by which he travelled to work such that he would be disciplined if he did not. This was not a complicated question, but it had obvious significance for the claim that Mr Wilkinson was advancing about travel to work. I concluded that his reluctance to directly answer the question was because he could see its significance for the case. On the whole, I regarded his evidence as being influenced to a considerable degree by what he thought would support the case being advanced by Mr Wilkinson. By that I do not mean to say that he was being deliberately untruthful but rather the reliability of what he said has to be adjudged with that aspect in mind.
In the circumstances I have described, I do not accept the submissions advanced for Wilson Security to the effect that there was collusion for the purpose of preparing some form of false or inaccurate account between the four witnesses who gave evidence in support of the claims advanced by Mr Wilkinson. There was no basis established for a conclusion of that kind.
Mr Canadas and other witnesses for Wilson Security
At times, in the course of giving his evidence, Mr Canadas displayed personal animus towards Mr Wilkinson. Even allowing for the fact that he was being subjected to questioning by Mr Wilkinson who was appearing on his own behalf (and not through counsel), I formed the view that his answers were affected by his personal dislike for Mr Wilkinson. It resulted in answers that were expressed in emphatic and unqualified terms which, in certain respects, I was inclined to view as being overstated.
At times, Mr Canadas was flippant. When asked by Mr Wilkinson whether he had a basic understanding of matters relating to health and safety he responded: 'Wasn't very good at it, mate. Sorry'.
Nevertheless, giving due regard to these aspects of his evidence, I generally accept his account as reliable. In particular, I accept his evidence as to the nature and extent of his responsibilities within Wilson Security and his evidence as to the extent of his knowledge of the requirements of the relevant Awards. As to these matters his evidence was not challenged and they were matters that did not concern dealings with Mr Wilkinson.
Ms Andrea Pirozzi gave evidence. At the time of deposing her affidavit she was a systems admin and payroll officer for Wilson Security and had worked for Wilson Security for over six years in various payroll roles. She gave evidence about the pay slips that had been issued to Mr Wilkinson and the codes used on them. She explained how decisions in relation to what to include in doing payroll were made by 'HR' meaning the employees within Wilson Security responsible for matters concerned with human resources. Ms Pirozzi was unable to express a view as to whether there were particular award entitlements. Ms Pirozzi gave her oral evidence in a careful and considered manner. I accept her evidence.
Mr Christopher Barugh was also called by Wilson Security to give evidence. He worked for Wilson Security for 15 years but had retired by the time he deposed his affidavit. He began work for Wilson Security as an 'HR Advisor'. During the relevant period his responsibilities were related to safety investigations, risk assessments, assisting with health and safety components of tenders for new work, on-site health and welfare and conducting behavioural and compliance audits. Therefore, his responsibilities did not concern payroll. Nor did they concern determining the payment terms or conditions for security officers or being involved in the supervision of their work. From time to time, as part of carrying out the duties I have described, Mr Barugh travelled to locations where Wilson Security employees were working. In his affidavit evidence he said: 'I was required to attend [those locations] to observe and understand what was happening there from a health and safety compliance perspective, as well as to provide general health and safety advice and assessment, and to conduct health and safety audits'.
It emerged in cross-examination that Mr Barugh had not used the EBI system (a software system employed for access control and other security purposes at the Woodside site) and was not familiar with what was required to operate the system. Therefore, I do not regard his evidence concerning the nature of the work that was done by security officers working for Wilson Security at the Woodside site in relation to the EBI system to have been demonstrated to have a sufficient foundation for it to be of any real assistance. In relation to the arrangements concerning the use of cars to travel from camps to the Woodside site it was also apparent that Mr Barugh was unfamiliar with those arrangements because he first gave evidence that the pre‑start checks were conducted at the Woodside site before travelling to the camp. Therefore, I do not regard his evidence as to those matters to be of any assistance.
Mr Barugh also gave evidence as to what occurred in relation to handovers and meal and rest breaks. Again, I regard this evidence to be of little assistance because Mr Barugh was only an occasional visitor to the workplace where Mr Wilkinson worked during the relevant period and it was no part of Mr Barugh's responsibilities to supervise any part of that work. For example, in his affidavit Mr Barugh said that the only requirement that Wilson Security imposed as part of its security business generally was 'to be at the Site in sufficient time to start the shift'. He then said that because of handover there was always some form of crossover 'but this was only brief'. He went on to give evidence about what he 'regularly observed' in relation to handovers. However, on his evidence he did not regularly observe the way in which handovers were conducted. He was only an occasional visitor and his responsibilities were focussed upon health and safety matters. As is explained below, his evidence as to what occurred in relation to handovers was contradicted by the available documentary instructions concerning handovers and the evidence of Mr Canadas. His evidence was barely referred to by Wilson Security in closing submissions and properly so in the circumstances I have described.
For the reasons I have given, I place little weight upon the evidence of Mr Barugh.
Claims (1) and (2): The long break provisions in the applicable Awards
As to long breaks, cl 21.4 of the 2010 Award provides:
(a) An employee must be given separate long breaks of continuous time off work in each roster cycle as follows:
Length of roster cycle Minimum number of breaks 3 weeks 3 breaks of 2 days (48 continuous hours) 4 weeks 3 breaks of 3 days (72 continuous hours);or
4 breaks of 2 days (48 continuous hours)
8 weeks 6 breaks of 3 days (72 continuous hours);or
9 breaks of 2 days (48 continuous hours)
(b) Regardless of the roster cycle, an employee on a roster cycle must not be required to work more than a total of 48 hours of ordinary time without a long break of at least 48 continuous hours.
Clause 14.5 of the 2020 Award provides:
(a)An employee on a roster cycle of a length specified in column 1 of Table 3 - Long breaks is entitled to long breaks of continuous time off work in that roster cycle as specified in column 2:
Table 3 - Long breaks
Column 1
Length of roster cycle
Column 2
Minimum number of breaks
3 weeks 3 breaks of 2 days (48 continuous hours) 4 weeks 3 breaks of 3 days (72 continuous hours);or
4 breaks of 2 days (48 continuous hours)
8 weeks 6 breaks of 3 days (72 continuous hours);or
9 breaks of 2 days (48 continuous hours)
(b)The employer must not roster an employee on a roster cycle of any length to work more than a total of 48 ordinary hours without a long break of at least 48 continuous hours.
It can be seen that each of the 2010 Award and the 2020 Award deals with the number of breaks in a roster cycle. Although, only the 2010 Award refers expressly to the long breaks as being 'separate', both Awards specify the 'minimum number of [long] breaks' for each type of roster cycle and the length of each of those breaks. Both Awards also address the extent of ordinary hours that may be worked between long breaks.
By separate provision in the Awards there is a limit upon the hours that employees may be required to work in any 24-hour period. The Awards also specify the duration of an ordinary time shift. For example, the 2010 Award specifies that 'ordinary time shifts' for full-time employees must be limited to a maximum of 10 ordinary hours (with provision for the maximum to be 12 ordinary hours by agreement between the employer and a majority of employees in a particular establishment): see cl 21.2. There is also provision as to the ordinary hours to be worked in any week. The 2010 Award provides for the ordinary hours to be 76 hours within a roster cycle not exceeding two weeks: cl 21.1. There is an equivalent provision in the 2020 Award: cl 13.1.
In addition, as set out above, there is a provision in both Awards to the effect that an employee on any roster cycle must not be required to work more than a total of 48 hours of ordinary time before a long break. For that reason, Wilson Security accepted that for each roster cycle all hours worked beyond 48 hours must be paid as overtime. On that basis, back pay has been paid to security officers working for Wilson Security at the Woodside site. Wilson Security maintains that the payment of the back pay means that Mr Wilkinson has been remunerated on the basis that for each 14-day roster he worked 48 hours of ordinary time and 120 hours of overtime.
Of course, employees may be required to work reasonable additional hours above their ordinary hours (subject to any applicable restriction). They will be entitled to be remunerated for those additional hours at applicable overtime rates. Those rates may vary depending upon when they occur and how many hours are involved. The overtime provisions in the Awards allow for reasonable overtime and specify that an employee must not be required to work more than 14 hours (in a 24-hour period), including breaks to which the employee is entitled: cl 23 of the 2010 Award and cl 19.1 of the 2020 Award.
There was no claim made by Mr Wilkinson concerning the reasonableness of the extent of the additional hours that he was required to work by reason of the roster cycle that applied during the course of his employment by Wilson Security. Rather, as to Claim (1) his concern was as to the length of consecutive days he was required to work without a break. As to Claim (2) his concern was as to the amount of hours beyond 48 hours that he was required to work without a long break. As to other Claims, he contended that he should have been paid more based on what he was directed to do and the hours he worked. Therefore, even though Mr Wilkinson made no claim that the overall hours as rostered resulted in unreasonable overtime hours, the nature of the claims made were of that character because they concerned how long he had been made to work without a break of the kind required by the Awards.
As has been mentioned, until 30 June 2016, Mr Wilkinson worked a roster cycle of three weeks (two weeks on, one week off). Thereafter, he worked a four-week roster cycle (two weeks on, two weeks off). On each day that he was rostered to work, he was rostered for 12 hours (inclusive of meal and rest breaks).
Therefore, Mr Wilkinson's rostered hours in each two-week cycle were 168 hours, of which 48 hours were ordinary hours of work.
The case for Wilson Security was to the effect that it could conform with the long break provisions by providing for consecutive long breaks of the required duration. It claimed that it met the long break requirements because it provided more days off than were provided for by the Awards when it came to long breaks. It pointed to the fact that, as part of the three-week roster, Mr Wilkinson was entitled to a long break of seven days which was said to amount to three long breaks of two days plus an extra day. As each period of two days was a continuous period of 48 hours it was a long break that was 'separate' from the employee's rostered shift and there was no requirement that each of the 'separate' breaks could not be consecutive.
If the contentions for Wilson Security were to be accepted, then it could roster an employee on an eight-week roster to work 38 days (or about five and a half weeks) consecutively as long as it then provided 18 consecutive days of long break. Further, in the case of a four-week roster, it could roster an employee to work 20 days (or about three weeks) consecutively followed by eight consecutive days of break because that would meet the requirement for four long breaks of two days. That would be so even though the Awards expressly provide that where the long breaks are for three days then there must be three of them, making a total of nine days.
In context, it is plain that the long break provisions limit the extent to which an employer can require an employee to work consecutive rostered days without a long break. It is concerned with the frequency of long breaks as well as their duration. The 'continuous time off work' that is specified in each of the Awards is not simply a number of days for each specified length of roster cycle. Rather, it is both a number of breaks and a number of days for each break. Both requirements must be met. The case for Wilson Security would reduce the long break provisions to provisions which simply specified the number of days of a long break in a roster cycle. It is a construction that is inconsistent with the express language of the relevant provisions which refers to a minimum number of breaks and the use of the plural form 'long breaks' in the operative provision. It is also supported by the use of the term 'separate long breaks' in the 2010 Award together with the absence of any matter of context to suggest that the parties intended the long break provisions (which are otherwise expressed in the tables in each of the Awards in the same terms) to operate in a different manner in the case of the 2020 Award compared to the 2010 Award. The change in terminology in the 2020 Award appears to be explained by the fact that its foundational version was prepared as a 'plain language re‑drafting of the [2010 Award]': see 4 yearly review of modern awards - Plain language re‑drafting - Security Services Industry Award 2010 [2018] FWCFB 6755.
It was suggested for Wilson Security that a provision could easily have been inserted to make clear that the long breaks could not be contiguous if that was indeed the intention. However, that submission is premised upon the long break provisions taking a form which contemplates that possibility thereby inviting language of qualification to that effect if it was intended that long breaks could not be rostered contiguously. For reasons that have been given, the long break provisions do not contemplate such a possibility. Instead, they provide expressly for a minimum number of breaks, specifying those breaks both by number and duration. There is no real room in the language of the provisions for the construction for which Wilson Security contends. Therefore, there is no real foundation in the language for a submission of the kind advanced.
When there is regard to the rostering provisions in the Awards, the result would mean that employees undertaking work in the security services industry could be required to work very long hours over many consecutive days without a break. The coverage provisions in the Awards refer to the industry as including patrolling, protecting or guarding people or property, crowd, event or venue control, body guarding and traffic control incidental to those activities. It does not cover cash-in-transit protection or work in prisons, correctional or other detention facilities or relating to the installation or repair of electronic alarms or ATMs. Nevertheless, it is work of a kind that may be expected to require vigilance and attention for sustained periods. These are matters which bear upon the proper construction of the Awards.
It was further submitted by Wilson Security that its construction of the long break provisions was supported by the fact that the Awards applied to the provision of work by FIFO employees. It was suggested that a construction which required each long break to be separate would make it difficult to accommodate FIFO arrangements where security guards work. There are a number of problems with this submission.
First, as has been explained, the Awards apply broadly. The construction contended for would allow for rostering of a kind that would apply in many different circumstances. The construction must be one which has regard to the work to be undertaken by all employees covered by the Awards. Second, there is no evidence advanced of admissible contextual material to support the construction of the Awards by reference to the particular requirements of FIFO employment arrangements. Third, I am not persuaded that an application of the long break provisions on the basis that long breaks must not be continuous is inconsistent with FIFO employment. For example, a four days on, three days off roster would comply, as would a rolling four-week roster which was five days on and four days off with an extra day on in the first four weeks and an extra day off in the second four weeks.
There are also other industrial mechanisms by which different work arrangements may be put in place with approval of the Fair Work Commission. The availability of those alternatives is part of the context in which the Awards are to be construed.
It follows that Claim (1) by Mr Wilkinson must succeed. In relation to his employment, Wilson Security has not provided him with sufficient long breaks. He has been made to work for longer periods without a break than should have been the case (and would have been the case if Wilson Security had complied with the long break provisions of the Awards). It follows that Mr Wilkinson has established the alleged contravention of s 45 of the Fair Work Act that was the basis for Claim (1).
As to Claim (2), Mr Wilkinson submitted that after 48 hours of ordinary time worked there was an entitlement to a long break. He relied upon the language of the Awards that were concerned with the number of ordinary hours that may be included in a roster cycle of any length without a long break. As has been noted, the ordinary hours to be worked where a roster is operated are an average of 38 hours per week. However, Mr Wilkinson's submission fails to take account of the fact that the Awards expressly contemplate shift rosters with work hours of up to 14 hours in any 24-hour period. It is also possible for an employer to roster overtime.
In my view, the provisions concerning 48 hours of ordinary time before a long break is to ensure that a roster is not formulated which provides in a two-week roster say for 60 hours of ordinary time in the first week with a long break followed by a roster in the second week of say 16 hours of ordinary time and then a long break, but with no overtime. A roster of that kind would mean that an employee would be required to work long hours for part of the roster without receiving any overtime payments.
There was no suggestion that the roster in the present case was one which operated in that way. Although there had been a dispute in the past as to payment of overtime, by the time of these proceedings that issue had been addressed by the payment of back pay in relation to overtime (at least for so long as Mr Wilkinson was working as a full-time employee and not as a casual employee). The present issue did not concern whether there had been adequate overtime payments. It was concerned with whether there had been compliance with the long break provisions. That is to say, the case being made was that the amount and frequency of long breaks was inadequate, not that there had been inadequate pay for overtime.
For Mr Wilkinson it was submitted that after working four days of a typical 14-day swing, he was entitled to a long break and the requirement under his roster arrangements to work each of the following 10 days would mean that Wilson Security contravened s 45 of the Fair Work Act on each of those days for each of the times that he was rostered on to work.
The long break provisions in the 2010 Award were considered by Katzmann J in Sydney Night Patrol and Inquiry Company Limited t/as SNP Security v Pulleine [2014] FCA 385. In that case, the employee worked on a fortnightly roster and was paid overtime when he worked a shift of more than 10 hours or more than 76 hours in any two-week roster cycle: at [1]. He based his claim to overtime and a first aid allowance on the long break provisions. In a similar argument to that advanced by Mr Wilkinson in the present case, the employee had claimed that it was a contravention of the 2010 Award to require him to work more than 48 hours of ordinary time without giving him a long break and that that if he was required to do so then he was entitled to be paid at overtime rates.
Before Katzmann J, the employer, Sydney Night Patrol, accepted that if employees on a fortnightly roster were entitled to a long break after 48 hours of ordinary time worked in a week then overtime was payable. Sydney Night Patrol claimed that the long break provisions did not apply to employees on a fortnightly roster cycle: at [15]. At that time, the words 'Regardless of the roster cycle' did not form part of cl 21.4(b) of the 2010 Award. They were introduced by way of amendment after the dispute arose with Sydney Night Patrol.
In the course of reasoning as to why the prohibition on being required to work more than 48 hours of ordinary time with a long break of at least 48 hours applied to all employees, Katzmann J referred to provisions of the National Employment Standards which 'tend to reinforce the notion that all employees can expect to receive a long break or, as the learned magistrate put it, "a weekend", at the end of an ordinary working week or compensation (here, overtime payments) in lieu, and that that notion lies behind cl 21.4(b)': at [50].
Significantly, after considering the above and other matters bearing upon the proper construction of cl 21.4(b), Katzmann J expressed her final conclusion as to the meaning of the provision in the following terms at [52]:
In view of these considerations, there is no good reason to conclude that the Award was intended to deny a long break to employees working a fortnightly roster or to deprive those who work beyond the 48 hours of the appropriate overtime rate.
The expression of her Honour's conclusion in that way supports Wilson Security's position that the prohibition in cl 21.4(b) is not transgressed where the employer pays overtime. That is to say, the relevant Awards provide for a roster with an average of 38 hours of ordinary time per week. After that, time worked is overtime.
What cl 21.4(b) makes clear is that there is a limit on the averaging that can occur such that ordinary hours beyond 48 hours in any week must be paid at an overtime rate or, if overtime is not to be paid, the employee must be given a long break. In that regard the use of the term 'ordinary time' in the relevant provisions in the 2010 Award and in the 2020 Award is significant. It is not a provision that operates to curtail the possibility of a roster with reasonable overtime that conforms to the provisions of the relevant awards in relation to overtime and for which overtime is paid.
Of course, as has been explained, the separate requirements as to the minimum number of long breaks and their duration (as addressed in dealing with Claim (1)) must still be met.
It follows that Claim (2) fails.
Claims (3) and (4): Arrival before rostered start time
Mr Wilkinson advances Claim (3) as a contravention of s 323(1) of the Fair Work Act. He says that he worked more than the rostered time because he was directed to attend work before his rostered start time to conduct a handover. He says he was not paid for the additional time and therefore was not paid in full. Claim (4) is based upon the same facts but is to the effect that, contrary to the Awards, Wilson Security required Mr Wilkinson to work 15 minutes more than his rostered time. Both claims are to the effect that Mr Wilkinson worked an extra 15 minutes for each shift for which he was not paid. Claim (3) seeks to characterise the failure to pay as a contravention of s 323(1).
As has been noted, s 323(1) requires an employer to pay amounts payable to an employee in relation to the performance of work 'in full', 'in money' and 'at least monthly'. The first answer advanced by Wilson Security in defence of Claim (3) is that it is said to concern 'amounts payable to the employee' in the sense that they have been identified and accepted by the employer as being payable. The submission relies in part upon the terms of s 324(1) which allow an employer to deduct certain specified amounts 'from an amount payable to an employee in accordance with subsection 323(1)'. Its terms are said to imply that s 324(1) applies where there is an amount which has been identified and accepted as being payable to an employee because it refers to deduction from an 'amount payable'. In effect, the submission emphasises that an employer would not be seeking to make a deduction from an amount which the employer was not otherwise planning to pay. Therefore, so it is submitted, the provisions do not apply where there has been a failure to pay an amount in respect of which there is a genuine dispute.
Section 323 provides as follows:
(1)An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a)in full (except as provided by section 324); and
(b)in money by one, or a combination, of the methods referred to in subsection (2); and
(c)at least monthly.
(2) The methods are as follows:
(a)cash;
(b)cheque, money order, postal order or similar order, payable to the employee;
(c)the use of an electronic funds transfer system to credit an account held by the employee;
(d)a method authorised under a modern award or an enterprise agreement.
(3)Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.
Section 324 provides:
(1)An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:
(a)the deduction is authorised in writing by the employee and is principally for the employee's benefit; or
(b)the deduction is authorised by the employee in accordance with an enterprise agreement; or
(c)the deduction is authorised by or under a modern award or an FWC order; or
(d)the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.
(1A)However, an employer must not deduct an amount under paragraph (1)(a) if the deduction is:
(a)directly or indirectly for the benefit of the employer or a party related to the employer; and
(b)for an amount that may be varied from time to time;
unless the deduction, if it were a deduction referred to in subsection 326(1), would be a deduction made in circumstances prescribed under subsection 326(2) to be reasonable.
(2) An authorisation for the purposes of paragraph (1)(a):
(a) must specify:
(i)for a single deduction - the amount of the deduction; or
(ii)for multiple or ongoing deductions - whether the deductions are for a specified amount or amounts, or for amounts as varied from time to time; and
(aa)must include any information prescribed by the regulations; and
(b)may be withdrawn in writing by the employee at any time.
(3)Any variation in a specified amount of a deduction must be authorised in writing by the employee.
In Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619, the High Court was concerned with the proper construction of s 470(1) of the Fair Work Act which provided that an employer 'must not make a payment to an employee' in relation to the duration of protected industrial action. The issue was whether the relevant section applied to the provision of accommodation to FIFO employees who engaged in protected industrial action when on location. The terms of s 323 were called upon to support a submission that 'payment' in s 470(1) refers to payment in money 'in conformity with s 323'. As to that contention, the High Court said at [45] (Crennan, Kiefel, Bell, Gageler and Keane JJ):
The … argument based on s 323 is not persuasive. The terms of s 323(3) acknowledge that an enterprise agreement may specify a method for the payment of 'the money' by a 'particular method' other than 'in money'. The reference in s 323(3) to 'the money' is a reference back to the prescription in s 323(1) of 'amounts payable to the employee in relation to the performance of work'. It is tolerably clear from the terms of s 323(3), and is confirmed by the Explanatory Memorandum which accompanied the Bill for the Fair Work Act 2009, that s 323(1) addresses the same mischief addressed by 'Truck Acts' as they had by then come to exist in each State, that is, that an employee's entitlement to payment for work might be compromised by an employer requiring the employee to accept some form of payment in kind of less value than the payment of money forgone. Section 323(3) expressly acknowledges that this mischief is not a concern where the provision is contained in an enterprise agreement.
(footnotes omitted)
'Truck' is an archaic English term derived from the Middle English 'trukken' meaning to exchange or barter. The relevant passage in the Explanatory Memorandum was as follows (at [1277]‑[1278]):
This Division is about the frequency and methods of payment of amounts payable to an employee in relation to the performance of work and allowable deductions from such amounts.
Currently, these issues are dealt with primarily by State and Territory legislation. This has led to a patchwork of obligations for employers. The payment of wages provisions in this Division draw upon the protections that exist in State and Territory legislation to provide a simple, national scheme.
The various 'Truck enactments' originated in English legislation and have been described as establishing the obligation 'of uniformly paying the whole wages of artificers [that is, people involved in providing manual labour] in the current coin of the realm': Bristow v City Petroleum Ltd [1987] 1 WLR 529 at 532. For example, in Western Australia s 5 of the now repealed Truck Act 1899 (WA) required the entire amount of wages 'earned by or payable to any workman' to be paid to such workman in money. The focus of the legislation was upon the payment of wages that had been earned. The provisions of the legislation addressed the mischief by which employers purported to discharge the obligation to pay wages by providing goods or services 'in kind' and by making offsetting deductions from wages. As to the history of Commonwealth provisions addressing the same concern see the review of the Australian context by Dr Gabrielle Golding and Dr Mark Giancaspro, 'Why Can't I be Paid in Pizza? - Comparing s 323 of the Fair Work Act 2009 (Cth) and Consideration at Common Law' (2023) 50(2) University of Western Australia Law Review 1 at 3‑6.
There appear to be two instances where single judges of this Court have given consideration to the meaning of s 323.
In Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878 representative proceedings were commenced seeking the payment of promised bonuses. The claim was advanced under s 323 of the Fair Work Act. The employer sought summary dismissal. Reliance was placed on the High Court's reasoning in Mammoet.
Buchanan J declined to dismiss the proceedings. His Honour reasoned in the following way (at [30]):
The ordinary language of s 323 is apt to identify, and provide for the enforcement of, an obligation to pay amounts which have become payable, as well as the more specific obligation to pay such amounts in full, in money and at least monthly (subject to the statutory exemptions which accompany the obligation). It does so by permitting the imposition of a civil penalty for contravention of the obligation.
His Honour then described the nature of the claim being made in the proceedings (at [31]):
The applicant does not rely on s 323 as a foundation for recovery of any underpayment. It relies on s 323 to establish breach of a civil remedy provision. Recovery of unpaid amounts is sought on a different statutory footing under s 545 of the [Fair Work Act], namely compensation for loss suffered as a result of contravention of a civil remedy provision.
Therefore, the case that seemed to be advanced by the Association was that if it was separately established that the bonuses should have been paid then there would be a contravention of s 323 in failing to pay the amounts as then found to have been payable. Buchanan J found that position to have 'direct support' in the reasoning of Jessup J in Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908: at [32]. At [33] Buchanan J quoted from parts of the reasoning of Jessup J in Murrihy, which parts proceeded on the basis that a failure to pay a commission entitlement would contravene s 323(1). In Murrihy, Jessup J found that the applicant had demonstrated that circumstances that gave rise to the payment of a 'bonus' had been met. On that reasoning, Buchanan J concluded that it could not be said that the application in the representative proceedings had no reasonable prospects of success: at [35]. His Honour also said (at [36]‑[37]) as follows:
… it seems to me that I should approach the question of construction of s 323 in conformity with the views expressed by Jessup J. I should do so as a matter of comity in any event, but I also regard the language of s 323 as sufficiently wide to accommodate the present proceedings. I do not accept the more confined construction advanced by the respondents.
…
I accept that the applicant has standing to bring the proceedings and to seek a finding that there have been breaches of s 323 through failure to pay contractually obligated amounts (I say nothing about whether such a case will be made out factually).
Therefore, Buchanan J appears to have concluded that where there was a dispute as to whether an amount formed part of the amount that an employer was obligated to pay to an employee then a failure to pay that amount (as distinct from a refusal to pay the amount in money) was a breach of s 323. There was no suggestion in Murrihy or Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited that the employer was seeking to make payment other than in money or was seeking to make some form of deduction of a kind not referred to in s 324 rather than pay the employee in full. The dispute was not about the manner of payment, it was about whether there was an amount due. Given the context as described by the High Court in Mammoet, the distinction just described appears to be significant for the purposes of resolving ambiguity in the language used in s 323.
It was submitted by Wilson Security that the views expressed in Murrihy and Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited were in error and should not be followed.
I observe that the conclusions reached by Buchanan J (like the views expressed by Jessup J) were in the context of an application for summary dismissal where the only issue to determine was whether the claims as formulated under s 323 were sufficiently arguable to allow the case to proceed. Nevertheless, the reasoning of Buchanan J was carefully considered and was directed to the question which arises in the present case. A judge of this court should usually follow reasoning of that kind unless the judge is of the view that the reasoning is plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75]‑[76] (French J); and BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 283 FCR 97 at [62] (Allsop CJ, Moshinsky and O'Callaghan JJ). His Honour's reasoning is not to be departed from without a strong conviction of error that can be demonstrated by reasoning and a persuasion that notwithstanding the importance of the underlying principles of certainty, stability and predictability it is proper for one judge to depart from an earlier decision: Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 at [283]‑[301] (Allsop P, Beazley and Basten JJA) (dealing with the principles in an appellate context).
Respectfully, for the following reasons, I am unable to agree with the conclusion reached by Buchanan J in Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited. It is a view that does not appear to have been applied in subsequent cases and, on my research, the issue has not been considered by a Full Court. Therefore, this is not an instance where it might be said that the fact that a particular view as to the meaning of a statutory provision has become established is a reason why it should not be departed from by another judge.
Section 323(1) is expressed as an obligation concerning the manner in which an employer 'must pay' the amounts described. Its focus is upon the manner of payment of 'amounts payable to the employee' not upon the extent to which there is an obligation which means that there are amounts which are payable. In effect, its operative prescription concerns the way in which payment should be made of particular types of payment obligations which it describes but otherwise assumes that those amounts have been identified as payable. The requirement that it imposes is that such amounts be paid in full, in money and at least monthly.
Arguably, there is an ambiguity as to whether the reference to 'amounts payable to the employee in relation to the performance of work' includes amounts that are in dispute such that there is a contravention of the provision if it is subsequently determined that they are amounts that are payable. However, as has been explained, there are other provisions in the Fair Work Act which express obligations of that kind. Whether there is an obligation to make a payment and, consequently, whether there has been a failure to perform that obligation is addressed by other provisions of the Fair Work Act. Relevantly for present purposes, as has been explained, s 45 makes it a contravention for a person to contravene a term of a modern award. Where a term of a modern award requires an amount to be paid then s 45 is still contravened if the employer disputes the existence of that requirement but the employer's position is not vindicated. The existence of such provisions is an important matter of context; as are the terms of the Explanatory Memorandum as explained by the High Court in Mammoet.
In those circumstances, in my respectful view, s 323(1) is concerned to ensure that the payments that are made by an employer to its employees for work done by them are made with appropriate frequency, are made without deduction and are not paid in kind. Although the section refers to amounts 'payable' to an employee, the operative requirement concerns the ways in which an employer 'must pay'. That is to say, the obligation that is imposed concerns the manner of payment where payment is being made of 'amounts payable… in relation to the performance of work'. It concerns how payments in the category of payments as described are to be made. Consequently, if an employer is making a payment to an employee of an amount that is not 'payable in relation to the performance of work' then s 323(1) does not apply.
So, an employer and an employee may be in dispute as to whether an amount is payable in relation to the performance of work. In such a case the point has not been reached where the employer is to make payment for the purposes of s 323(1). Or, an employer may have formed their own view as to what is payable but that view may be incorrect because the amount is too low. Likewise, in such a case, as to the extent of the employer's error, it is also the case that the point has not been reached where the employer is to make payment for the purposes of s 323(1). Therefore, in such cases, in failing to pay those amounts, the employer cannot be said to have breached the terms of s 323 because the statutory provision is not directed to whether there is an obligation to make payment; rather, it is concerned with the manner of payment where an employer is making payment for work done by the employee.
On the other hand, where an employer has identified an amount to be paid but withholds payment or pays only part or defers payment so that the obligation to pay monthly is not performed, then there is a contravention of s 323(1).
Conceivably, issues may arise as to whether an employer who wilfully ignores whether there is any payment obligation or fails to undertake any genuine consideration as to the amounts due to the employee or defers identifying the amount to be paid is, by that conduct, failing to pay as required by s 323(1). In such a case, the failure to pay will not be because of some explicable failure to identify an amount as being payable. Rather it will be because the obligation to pay at least monthly is not being met because, in such circumstances, the payment obligation is being unilaterally deferred by the employer. Therefore, it may amount to a failure to pay by failing to form a view as to what is payable. However, no case of that kind was advanced by Mr Wilkinson in the present case so that aspect can be left for when the occasion squarely arises.
In the present case, the complaint made by Mr Wilkinson does not concern the manner in which payment was effected by Wilson Security. Rather, it concerns a dispute as to whether there was an obligation to make a payment for work done by Mr Wilkinson. For reasons that have been given, s 323(1) is not contravened in a case of that kind, even if it now be concluded that there is an amount payable to Mr Wilkinson that has not been paid. That is because his complaint is not as to the way in which Wilson Security paid amounts to him. His complaint is about whether an amount was payable.
For those reasons Claim (3) fails.
I now turn to Claim (4) which is to the effect that Mr Wilkinson was directed to perform work before his rostered start time for which he was not paid contrary to the Awards.
As to Contravention 1, the conduct amounting to a failure to comply with the Awards was the scheduling of the rostering arrangement whereby Mr Wilkinson was required to work 12-hour shifts for 14 consecutive days with the consequence that the long break provisions were not complied with by Wilson Security. There was no evidence that Mr Canadas played any role in establishing that roster or that he took steps to instigate or encourage the adoption of that roster. He could not be liable as an accessory for conduct in which he was not involved in any way.
It was the case that Mr Canadas was responsible for scheduling when individual security officers would be working according to the roster established by others. However, that fact alone cannot make him an accessory to Contravention 1. For those reasons, the claim as to Contravention 1 must fail.
As to Contravention 2, the allegation was that Mr Wilkinson was required to work an additional 15 minutes outside his rostered hours and he was not paid for that work. It has not been demonstrated that it was part of his responsibilities to determine the amount to be paid to security officers for the work that they did. On the evidence of Ms Pirozzi, the amounts to be included in payroll amounts were determined by human resources. Mr Canadas was not involved in those matters. As to ensuring that appropriate payments were made to employees, he had no responsibility at all.
In my view there was no separate claim that there was a contravention of the Awards because Mr Wilkinson was required to work at a time when he was not rostered. The claim made was that there was a breach of s 323(1) of the Fair Work Act by directing Mr Wilkinson to attend handover outside rostered hours without payment. Wilson Security approached that claim on the basis that it included a claim that there had been a failure to comply with the Awards by not paying Mr Wilkinson despite requiring him to be in attendance 15 minutes before his rostered start time in order to conduct handover. That is to say, the claim made was about a failure to pay for work done.
For reasons that have been given, Mr Canadas was not involved in arrangements concerning payment. Further, the arrangements in relation to handovers were already in place when Mr Canadas commenced working as the facilities protection manager. Although he was involved in sending written communications to Mr Wilkinson and others reinforcing the requirement that they attend 15 minutes before the start of shift, Mr Canadas was not involved in imposing that requirement or any decision that it would continue. He did take steps to reprimand employees who were arriving earlier than the 15 minutes required for handover in order to avoid the unfairness associated with pressure on all employees travelling together by car to get to work early and relieve the outgoing shift. However, that conduct occurred in circumstances where others had put in place the handover requirements and it was part of Mr Canadas' role to ensure that the handover occurred.
Mr Canadas' job description included measurement criteria including that '[a] Prestart meeting is carried out prior to any shift commencing with all in attendance signing in as acknowledgment'; and that, '[h]andover notes are produced for oncoming shift and personnel to sign on handover'. Mr Canadas referred to the pre-start meetings as being meetings where a handover was done. He agreed he was required to ensure there was a handover before the shift started. However, those matters do not establish his knowing involvement in requiring Mr Wilkinson and others to attend for the extra time required for a handover for each shift.
In those circumstances, it has not been established that Mr Canadas was a participant in the conduct which comprised Contravention 2, namely directing Mr Wilkinson to work outside rostered hours and not paying him. The requirement for the handover was established by others and it was his task to implement that requirement.
Therefore, it is not necessary to determine whether it would also have been necessary to show that Mr Canadas knew of the relevant provisions in the Awards in order to be an accessory. As to that matter, there appears to be a divergence of views as to whether, in a case where the alleged contravention to which a party is said to be an accessory is a failure to comply with an award, the accessory must know of the terms of the award: see, for example, Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 at [35], [44] (Besanko J); Potter v Fair Work Ombudsman [2014] FCA 187 at [79]-[89] (Cowdroy J); Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [186]-[188], [191] (White J); Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 at [1018]‑[1019] (Katzmann J); Australian Building and Construction Commissioner v Parker [2017] FCA 564 at [127]‑[128] (Flick J); Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034 at [162]-[171] (Rangiah J); and Enkel v We R Finance Pty Ltd [2020] FCA 1668 at [43] (Jackson J).
However, should the matter go further and it be relevant to consider the extent of Mr Canadas's knowledge, I accept the evidence of Mr Canadas that although he knew an award existed he was not aware of the requirements of the Awards. Further, his lack of awareness of those requirements is understandable because of the role he was performing. It was no part of his responsibility to determine the working hours, leave arrangements or payments to be made to the security officers. Those findings as to knowledge would also apply if, contrary to my earlier conclusions to the effect that other claims of breaches of the Awards have not been established, it were to be concluded that one or more of those claims should be upheld.
Beyond this, I do not consider it necessary or appropriate to undertake the task of considering the claims that Mr Canadas was an accessory to other contraventions by Wilson Security that I have found not to be established. To do so would require the formulation of assumptions as to the basis upon which those claims might be upheld. It would require the consideration of multiple alternatives in circumstances where the findings that I have made as to the scope of the responsibilities of Mr Canadas and his lack of knowledge of the requirements of the Awards should be sufficient to enable conclusions to be reached as to accessorial liability for other claims if the matter goes further and it is found that one or more of those other claims should be upheld.
Conclusion
Mr Wilkinson has succeeded in establishing four contraventions by Wilson Security. As to those contraventions it will be necessary for there to be a further hearing to determine the outstanding issues as to relief, the quantum of any compensation or damages (including the issue of setoff) and the quantum of any penalties. The appropriate course as to those contraventions is for a case management hearing to be convened at which the Court will make directions as to the future conduct of the proceedings as against Wilson Security.
As to the claim against Mr Canadas, for reasons that have been given it is appropriate for those proceedings to be dismissed.
I will make orders accordingly.
I certify that the preceding three hundred and four (304) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate:
Dated: 2 July 2024
Appendix
Classifications of security officers
Schedule C of 2010 Award
C.1 Security Officer Level 1
C.1.1 A Security Officer Level 1:
(a) is responsible for the quality of their own work subject to general supervision;
(b) works under general supervision, which may not necessarily be at the site where the officer is posted, either individually or in a team environment;
(c) exercises discretion within their level of skills and training; and
(d) assists in the provision of on-the-job training.
C.1.2 Indicative of the tasks which an employee at this level may perform are the following:
(a) watch, guard or protect persons and/or premises and/or property at sites/locations where the complex use of computer technology is not required;
(b) basic crowd control functions including at shopping centres, major events, sporting tournaments, nightclubs, sporting venues and other entertainment venues or public areas where events, concerts or similar activities are conducted;
(c) be stationed at an entrance/exit, where principal duties will include the control of movement of persons, vehicles, goods/property coming out of or going into premises or property, including vehicles carrying goods of any description, to ensure that the quantity and description of such goods is in accordance with the requirements of the relevant document/gate pass;
(d) respond to basic fire/security alarms at their designated post;
(e) in performing the duties referred to above the officer may be required to use electronic equipment such as hand-held scanners and simple closed circuit television systems utilising basic keyboard skills which do not require data input;
(f) provide safety induction to employees, contractors or visitors to the site; and
(g) control access to and exit from an airside security zone or landside security zone at an airport.
C.2 Security Officer Level 2
C.2.1 An employee at this level performs work above and beyond the skills of a Security Officer Level 1 and to the level of their skills, competence and training.
C.2.2 A Security Officer Level 2:
(a) works from complex instructions and procedures under general supervision which may not necessarily be at the site where the officer is posted;
(b) assists in the provision of on-the-job training;
(c) exercises good interpersonal communications skills;
(d) co-ordinates work in a team environment or works individually under general supervision of a more senior security officer who may not necessarily be at the site where the officer is posted;
(e) is responsible for assuring the quality of their own work; and
(f) is required to act as first response to security incidents/matters.
C.2.3 Indicative of the tasks which an employee at this level may perform are the following:
(a) duties of securing, watching, guarding, protecting as directed, including responses to alarm signals and attendances at and minor non-technical servicing of ATMs. Such work must not be undertaken alone and must not include cash replenishment at ATMs;
(b) crowd control functions including at shopping centres, major events, sporting tournaments, nightclubs, sporting venues and other entertainment venues or public areas where events, concerts or similar activities are conducted;
(c) patrol in a vehicle two or more separate establishments or sites, including where more than one site held by the same business is patrolled;
(d) monitor and respond to electronic intrusion detection or access control equipment terminating at a visual display unit and/or computerised printout (except for simple closed circuit television systems). Such work must not include complex data input into a computer;
(e) monitor and act upon walk-through electromagnetic detectors; and/or monitor, interpret and act upon screen images using x-ray imaging and/or observation equipment, including in or in connection with airport security zones;
(f) operate a public weigh-bridge;
(g) record and/or report security incidents or matters on a computer based system;
(h) control a dog used to assist the security officer to carry out the duties of watching, guarding or protecting persons, premises or property; and
(i) conduct frisk searches of persons and screening using explosive trace detection including in or in connection with airport security zones.
C.2.4 A Security Officer Level 2 may be required to perform the duties of a Security Officer Level I provided that such duties are not designed to promote deskilling.
C.3 Security Officer Level 3
C.3.1 A Security Officer Level 3 works above and beyond the skills of an employee at Levels 1 and 2,and to the level of their skills, competence and training.
C.3.2 A Security Officer Level 3:
(a) works from complex instructions and procedures under limited supervision;
(b) exercises good interpersonal and communications skills;
(c) exercises computer skills at a level higher than Level 2;
(d) assists in the provision of on-the-job training;
(e) exercises discretion within the scope of this classification level; and
(f) performs work independently under limited supervision either individually or in a team environment.
C.3.3 Indicative of the tasks which an employee at this level may be required to perform are the following:
(a) control of movement of persons, vehicles, stock and material at gatehouses and similar locations utilising, monitoring and operating computer based systems requiring data input, including manipulation of spreadsheet based computer programs or other advanced monitoring system;
(b) monitor and operate, under supervision, building operation systems terminating at a visual display unit or computerised printout, including the monitoring of complex fire alarms, water towers/chillers, temperatures and other similar building operational system functions;
(c) stock and material control at computerised gatehouses and similar locations requiring data input and manipulation of computer programs e.g. Microsoft Excel and other similar computer programs; and
(d) provide safety induction to employees, contractors or visitors to the site; and
(e) monitor and act upon walk-through electromagnetic detectors; and/or monitor, interpret and act upon screen images using x-ray imaging and/or observation equipment, including in or in connection with airport security zones.
C.3.4 A Security Officer Level 3 may be required to perform the duties of Security Officers at Levels 1 and 2 provided that such duties are not designed to promote deskilling.
C.4 Security Officer Level 4
C.4.1 A Security Officer Level 4 works above and beyond an employee at Levels 1, 2 and 3,and to the level of their skills, competence and training.
C.4.2 A Security Officer Level 4:
(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) assists in the provision of on-the-job training;
(c) exercises discretion within the scope of this classification level;
(d) exercises computer skills at a higher level than Level 3; and
(e) exercises high level interpersonal and communications skills.
C.4.3 Indicative of the tasks which an employee at this level may be required to perform are the following:
(a) monitoring, recording, inputting information or reacting to signals and instruments related to electronic surveillance of any kind within a central station or at a particular location;
(b) 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 lock/unlock doors, program access cards, audit door access by individual as well as recording time and date of access; and
(c) the co-ordinating, monitoring or recording of the activities of security officers utilising a verbal or computer based communications system within a central station including in or in connection with an airport security zone.
C.4.4 A Security Officer Level 4 may be required to perform the duties of security officers at Levels 1,2 and 3 provided that such duties are not designed to promote deskilling.
C.5 Security Officer Level 5
C.5.1 A Security Officer Level 5 works above and beyond an employee at Levels 1, 2, 3 and 4 and to the level of their skills, competence and training and may co-ordinate the work of Security Officers working in a team environment within a central station.
C.5.2 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.
C.5.3 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 co-ordinating, 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.
C.5.4 A Security Officer Level 5 may be required to perform the duties of security officers at Levels 1, 2, 3 and 4 provided that such duties are not designed to promote deskilling.
Schedule A of 2020 Award
A.1 Security Officer Level 1
A.1.1 A Security Officer Level 1:
(a)is responsible for the quality of their own work subject to general supervision;
(b)works under general supervision, which may not necessarily be at the site where the officer is posted, either individually or in a team environment;
(c)exercises discretion within their level of skills and training; and
(d)assists in the provision of on-the-job training.
A.1.2 Indicative of the tasks that an employee at this level may perform are the following:
(a)watch, guard or protect persons, premises or property at sites or locations where the complex use of computer technology is not required;
(b)basic crowd control functions, including at shopping centres, major events, sporting tournaments, nightclubs, sporting venues and other entertainment venues or public areas where events, concerts or similar activities are conducted;
(c)be stationed at an entrance to, or exit from, premises or a property with principal duties including the control of movement of persons, vehicles, goods, or property coming out of, or going into, the premises or property, including to ensure that the quantity and description of goods being carried on a vehicle is in accordance with the requirements of the relevant document or gate pass;
(d)respond to basic fire or security alarms at their designated post;
(e)in performing the duties referred to in clauses A.1.2(a) to A.1.2(d) the officer may be required to use electronic equipment such as hand-held scanners and simple closed circuit television systems utilising basic keyboard skills that do not require data input;
(f)provide safety induction to employees, contractors or visitors to the site; and
(g)control access to, and exit from, an airside security zone or landside security zone at an airport.
A.2 Security Officer Level 2
A.2.1An employee at this level performs work above and beyond the skills of a Security Officer Level l and to the level of their skills, competence and training.
A.2.2 A Security Officer Level 2:
(a)works from complex instructions and procedures under general supervision, which may not necessarily be at the site where the officer is posted;
(b)assists in the provision of on-the-job training;
(c)exercises good interpersonal communications skills;
(d)co-ordinates work in a team environment or works individually under general supervision of a more senior security officer who may not necessarily be at the site where the officer is posted;
(e)is responsible for assuring the quality of their own work; and
(f)is required to act as first response to security incidents or matters.
A.2.3 Indicative of the tasks that an employee at this level may perform are the following:
(a)duties of securing, watching, guarding, protecting as directed, responding to alarm signals (including attendances) and, when not alone, minor non-technical servicing of ATMs, not including cash replenishment;
(b)crowd control functions including at shopping centres, major events, sporting tournaments, nightclubs, sporting venues and other entertainment venues or public areas where events, concerts or similar activities are conducted;
(c)patrol 2 or more separate establishments or sites in a vehicle, including where operated by the same business;
(d)monitor and respond to electronic intrusion detection or access control equipment terminating at a visual display unit or computerised printout (except for simple closed circuit television systems), not including complex data input into a computer;
(e)monitor and act on walk-through electromagnetic detectors, or monitor, interpret and act on screen images using x-ray imaging or observation equipment, including in or in connection with airport security zones;
(f)operate a public weigh-bridge;
(g)record or report security incidents or matters on a computer based system;
(h)control a dog used to assist the security officer to carry out the duties of watching, guarding or protecting persons, premises or property; and
(i)conduct frisk searches of persons and screening using explosive trace detection, including in or in connection with airport security zones.
A.2.4A Security Officer Level 2 may be required to perform duties of a Security Officer Level 1 that are not designed to promote deskilling.
A.3 Security Officer Level 3
A.3.1A Security Officer Level 3 works above and beyond the skills of an employee at Levels 1 and 2, and to the level of their skills, competence and training.
A.3.2 A Security Officer Level 3:
(a)works from complex instructions and procedures under limited supervision;
(b)exercises good interpersonal and communications skills;
(c)exercises computer skills at a level higher than Level 2;
(d)assists in the provision of on-the-job training;
(e)exercises discretion within the scope of this classification level; and
(f)performs work independently under limited supervision either individually or in a team environment.
A.3.3Indicative of the tasks that an employee at this level may be required to perform are the following:
(a)control of movement of persons, vehicles, stock or material at gatehouses and similar locations utilising monitoring and operating computer based systems requiring data input, including manipulation of spreadsheet based computer programs or other advanced monitoring system;
(b)monitor and operate, under supervision, building operation systems terminating at a visual display unit or computerised printout, including the monitoring of complex fire alarms, water towers or chillers, temperatures and other similar building operational system functions;
(c)stock and material control at computerised gatehouses and similar locations requiring data input and manipulation of computer programs, for example, Microsoft Excel and other similar computer programs;
(d)provide safety induction to employees, contractors or visitors to a site; and
(e)monitor and act on walk-through electromagnetic detectors, or monitor, interpret and act on screen images using x-ray imaging or observation equipment, including in or in connection with airport security zones.
A.3.4A Security Officer Level 3 may be required to perform duties of Security Officers at Levels 1 and 2 that are not designed to promote deskilling.
A.4 Security Officer Level 4
A.4.1A Security Officer Level 4 works above and beyond an employee at Levels 1, 2 and 3, and to the level of their skills, competence and training.
A.4.2 A Security Officer Level 4:
(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)assists in the provision of on-the-job training;
(c)exercises discretion within the scope of this classification level;
(d)exercises computer skills at a higher level than Level 3; and
(e)exercises high level interpersonal and communications skills.
A.4.3Indicative of the tasks that an employee at this level may be required to perform are the following:
(a)monitoring, recording, inputting information or reacting to signals and instruments related to electronic surveillance of any kind within a monitoring centre or at a particular location;
(b)keyboard operation to alter the parameters within an integrated intelligent building management or security system, including operating computer programs that have the ability to lock or unlock doors, program access cards, audit door access by individuals as well as recording the time and date of access; and
(c)co-ordinate, monitor or record the activities of security officers utilising a verbal or computer based communications system within a monitoring centre including in or in connection with an airport security zone.
A.4.4A Security Officer Level 4 may be required to perform duties of security officers at Levels 1, 2 and 3 that are not designed to promote deskilling.
A.5 Security Officer Level 5
A.5.1A Security Officer Level 5 works above and beyond an employee at Levels 1, 2, 3 and 4 and to the level of their skills, competence and training and may co-ordinate the work of Security Officers working in a team environment within a monitoring centre.
A.5.2 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 and interpersonal skills;
(c)assists in the provision of training in conjunction with supervisors or trainers;
(d)exercises discretion within the scope of this classification level; and
(e)exercises computer skills at a higher level than Level 4.
A.5.3Indicative of the tasks that 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 or security system, including operating computer programs that have the ability to remotely lock or unlock doors, program access cards, audit door access by individuals as well as recording the time and date of access; and
(b)co-ordinate, monitor or record the activities of security officers utilising a verbal or computer based communications system within a monitoring centre including in or in connection with an airport security zone.
A.5.4A Security Officer Level 5 may be required to perform duties of security officers at Levels 1, 2, 3 and 4 that are not designed to promote deskilling.
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