Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement - coverage dispute - meaning of airport - Freight APOs not covered - dispute determined.

• [1] On 27 February 2024, the United Workers' Union (UWU) made an application to the Fair Work Commission (the Commission) seeking to resolve a dispute with ISS Security Pty Ltd (ISS Security) under s.739 of the Fair Work Act 2009 (the Act).

• [2] The parties were unable to resolve dispute and clause 11.5 of the ISS Queensland Aviation Security Enterprise Agreement 2022 (the Agreement) empowers the Commission to arbitrate the dispute if it remains unresolved at the workplace level:

"If the FWC is unable to resolve the dispute at the first stage, the FWC may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties."

• [3] The matter remained unresolved after conciliation, and the parties requested for the matter to be arbitrated. I issued Directions and a hearing was listed on 3 July 2024 to determine the question for arbitration. Mr Tom Whiteside appeared for the UWU. Mr Jed Moore appeared for ISS Security as Legal Director.

• [4] The parties have agreed to the following question for arbitration:

"Are employees performing freight and cargo screening services ("Freight APOs") engaged by the Respondent pursuant to its contracts with freight and cargo screening service customers located in the geographic area described as Brisbane Airport covered by the ISS Queensland Aviation Security Enterprise Agreement 2022?"

• [5] The dispute concerns coverage of Freight APOs who perform freight examination services at Australia Post/StarTrack and FedEx at three locations near Brisbane Airport. The following locations in question are:

a) Brisbane Gateway Facility at 25-27 Qantas Drive

b) StarTrack Facility at 11 Westringia Road; and

c) FedEx Facility at 41-43 Qantas Drive (Facilities).

• [6] UWU submit that the Freight APO's are covered under this Agreement when interpreting clause 4.1 - clause 4.3, clause 17, clause 27 and Schedule A. The parameters of "Brisbane Airport" have not been defined under Clause 3.1. UWU states that Brisbane Airport encompasses the greater airport area rather than International and Domestic Terminals and that the freight examination services are within the Brisbane Airport catchment. Therefore, the Freight APO's are equivalent to duties listed under the classifications in Schedule A.

• [7] ISS Security argue that Freight APO's are not covered under the Agreement, stating that Brisbane Airport should be interpreted in its plain and ordinary meaning the airport itself, consisting of International and Domestic terminals and the areas within the airport perimeter fence, including those designated areas where access to the airport is controlled. ISS state that the new classification structure is specific to airport screening and security capture. They further submit that the wording of Schedule A is linked to the Aviation Transport Security Act 2004 (Cth) who deal with passengers and goods, rather than cargo screening undertaken by Freight APO's.

• [8] There is no contention between the parties regarding the principles surrounding interpretation of the Agreement under Berri.[1] The principles of James Cook University v Ridd [2020] FCAFC 123; (2020) 382 ALR 8 at [65], and Australian Workers' Union v Orica Australia Pty Ltd [2022] FWCFB 90 have been considered. In summary, the construction of provisions under the enterprise agreement considers the ordinary meaning of the words taking into account the context of the Agreement, their industrial context and purpose. Clauses are to be read using a purposive approach rather than a narrow approach. Context is not limited to the word of the instrument if there is another document associated with the instrument.[2]

• [9] UWU have tendered in bargaining correspondence to replace this Agreement in assisting with the interpretation of Brisbane Airport in this dispute. I am conscious that there may be subjective intentions or expectations by the parties which occurs during bargaining and the parties' position differ on what constitutes 'Brisbane Airport'. Therefore, this does not assist me with the construction of the Agreement.

• [10] I am not satisfied that the Freight APO's working for ISS located at Australian Post/StarTrack or FedEx facilities are covered under the Agreement. Although 'Brisbane Airport' is not clearly defined in the Agreement itself, the Agreement is sufficiently clear that APO's must scan people and goods rather than cargo which the Freight APO's scan.

This Agreement applies to Employees at an Airport

• [12] Clause 3.1 provides the following definitions:

Airport means Brisbane Airport, Gold Coast Airport and Townsville Airport

Employees means the Employees of ISS performing work described in the classifications at Schedule A.

Screening Work means screening of people, vehicles and goods (including baggage) entering, or already, in security restricted areas at an Airport at a security restricted area.

• [13] Clause 17 references the classification of Screening APO's under Schedule A providing the following:

• Performing Screening Work including screening of people and goods (including baggage) entering, or already in, security restricted area screening point (including through identification checks, monitoring, interpreting and acting on (HHMD), frisk search or other screening methods)
• Act as first responder to security incidents and alarms

• Performing Screening Work including screening of people and goods (including baggage) entering, or already in, security restricted area screening point (including through identification checks, monitoring, interpreting and acting on (HHMD), frisk search or other screening methods)
• Act as first responder to security incidents and alarms

Team Leader is responsible for co-ordinating the work of Aviation Protection Officers, including undertaking administrative and recording duties such as scheduling workflow patterns and breaks, monitoring and co-ordinating trainees and training requirements, maintaining training and other records and ensuring compliance with ISS SOPs and ASN requirements. Team Leader will support the Supervisor in the operation of the security screening points and may provide cover for the Supervisor during breaks or when the Supervisor is away from the screening point.

Supervisor is responsible for supervising the operation of a security screening point, including ensuring screening is performed in compliance with ISS SOPs and ASN requirements. Supervisor is responsible for managing passenger facilitation at a screening point in a compliant and efficient manner.

• [14] Clause 27 pertains to licensing and qualification of employees who perform security work or screening work.

• [15] When assessing these clauses, the Agreement limits the Employees of the Agreement to the wording of the classifications in Schedule A. The classification structure requires the APO to screen people and goods. Although some of the duties and qualifications overlap such as the licensing and qualification requirements under clause 27, this does not mean that there was a common intention by both parties that the Freight APO's are to be covered under this Agreement.

• [16] Mr Alan Campbell's statement identifies that the Freight APO's report to the Australia Post/StarTrack Supervisors. They undertake x-ray screening of 100% of cargo and freight being sent overseas on international aircraft.

• [17] For an employee to be covered under this Agreement as an APO - Screening, the APO must do screening work at a security screening point. The security screening point deals with movement of passengers and their goods to and from aircraft. The wording of the agreement indicates that there must be an aspect of screening people, and this interpretation is further supported with the specific methods of how people are to be screened. For instance, identification checks, and frisk searching are specific methods of screening people rather than cargo.

• [18] Mr Moore notes the different treatment between people and goods compared to cargo under the wording in the Aviation Transport Security Act 2004 (Cth) - Division 2. I find this to be consistent how the classifications have been specifically worded in Schedule A and is more reflective of the common intention by the parties. Even accepting a broader interpretation of 'goods' to incorporate cargo, there is nothing from the Agreement which further indicates that the cargo screening points are akin to screening people which are repeated throughout Schedule A.

• [19] Given the regulatory context behind the meaning of 'people and goods' compared to 'cargo', the nature of the Freight APOs that work at the cargo facilities are not employees covered under the Agreement. It would also not be consistent with the industrial context and purpose given how the classifications are to be applied. Freight APOs do not report to an ISS Team Leader or ISS Supervisor, and instead report to the Contractor (whether this be Australia Post or StarTrack). There appears to be a clear distinction between people and goods compared to cargo. There is no ambiguity when reading the Agreement as a whole.

• [20] Therefore, I have determined the following:

"Are employees performing freight and cargo screening services ("Freight APOs") engaged by the Respondent pursuant to its contracts with freight and cargo screening service customers located in the geographic area described as Brisbane Airport covered by the ISS Queensland Aviation Security Enterprise Agreement 2022?" No

The Freight and Cargo screening services do not undertake security screening point where there is screening of people. In taking the plain and ordinary meaning of Brisbane Airport and taking account of the context of the entire Agreement, it appears that 'Brisbane Airport' is defined to the actual Airport itself rather than its cargo processing areas that are near the Airport.

[1] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005.

[2] James Cook University v Ridd [2020] FCAFC 123; (2020) 382 ALR 8 at [65].

Printed by authority of the Commonwealth Government Printer