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[2019] FWC 8209
Fair Work Commission
2019-12-05
Original judgment source is linked above.
[2019] FWC 8209[Note: An appeal pursuant to s.604 (C2019/7843) was lodged against this decision. - A stay order has been issued]
s.739 - Dispute resolution
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] This decision deals with a dispute notified by the United Workers' Union under s.739 of the Fair Work Act 2009 (Cth) (the Act). On 11 November 2019 United Voice and the National Union of Workers amalgamated. The amalgamated organisation is now known as the United Workers' Union (UWU) and will be referred to as such in this decision.
[2] This dispute concerns the appropriate classification of four Security Officers employed by MSS Security Pty Ltd (MSS) under the terms and conditions of the MSS Security Victorian Enterprise Agreement 2017[1] (the 2017 Agreement.) The employees are located at the THALES site in Bendigo, which is involved in the manufacturing and assembly of military vehicles.
[3] The employees are currently classified at the Security Officer - Level 2 classification under clause 20 of the 2017 Agreement. However, UWU claims that the duties and responsibilities that the Security Officers are required to carry out means they should be classified at the Level 3 classification. MSS disagrees and submits that they are correctly classified at Level 2. In addition, its contract with the client only requires that the Security Officers perform duties covered by the Level 2 classification.
[4] The employees involved and the date they were first employed by MSS are as follows:
Mr Peter Watkinson - 28 October 2010,
Mr Adam Doidge - 15 February 2012,
Mr Stephen Day - 15 October 2012, and
Mr Peter Wells - 1 September 2014.
[5] Mr Sheldon Oski appeared on behalf of UWU. Ms Natalie Colosimo, National Industrial Relations Manager, appeared on behalf of MSS.
[6] A dispute was first raised about the appropriate classification of the Security Officers at THALES' North Bendigo site in January 2016. At that time the employees were covered by the MSS Security Victorian Enterprise Agreement 2011[2] (2011 Agreement) and were classified at Level 1. However, they believed the duties and responsibilities associated with the position meant they should have been classified at either the Security Officer - Level 2, or the Security Officer - Level 3 classification.
[7] After continuing to press for their positions to be reclassified they were reclassified to the Security Officer - Level 2 classification from 1 January 2017. However, they did not receive back payment for any periods of employment prior to this time. It was understood that this change was justified by MSS on the basis that its client had requested that some changes be made to the duties and responsibilities to be performed by the Security Officers at the site.
[8] The classification structure is set out in clause 20 of the 2017 Agreement and is essentially the same as that contained in the preceding 2011 Agreement and the MSS Security and LHMU Victorian Security Industry Enterprise Agreement 2009 (the 2009 Agreement). It also reflects the classification structure in the underlying Security Services Industry Award 2010[3].
[9] UWU provided a document which outlines the duties and responsibilities of its members at the Bendigo site. It submits that of those duties and responsibilities thirty-eight come within the Level 3 classification, and another sixty-one calm within either the Level 2 or Level 3 classifications. In terms of those duties required to be performed on a daily basis fourteen come within the Level 3 classification, and twenty-nine come within either the Level 2 or Level 3 classifications.
[10] The classification descriptors at both Level 2 and 3 also make clear that a Security Officer may be required to perform duties at any of the levels below their designated classification. Therefore, even though some duties and responsibilities may fall within lower classification levels this and does not preclude them from being classified at a higher level.
[11] The Security Officers at the Bendigo site spend the majority of their time during each shift in the gatehouse at the entry and exit to the site, and the Standing Orders stipulate that this is their main place of duty. The THALES Bendigo site, being a military vehicle assembly and manufacturing site, is also a complex site which requires appropriate security clearances, and the Security Officers are required to apply for and maintain that accreditation. In addition, Security Officers located at other similar THALES defence manufacturing sites are classified at the Level 3 classification, and this should also be the case at the Bendigo site.
[12] They also work alone for the majority of their shifts and apart from some brief overlap at shift change there is only one Security Officer rostered on at the site at any one time. This means that each Security Officer is expected to be able to perform all of the duties and responsibilities required with limited supervision. It also means that they exercise a significant amount of discretion in terms of the exercise of those duties and responsibilities. While the requirement to work with limited supervision is not of itself sufficient to establish that the Security Officers should be classified at Level 3 when this is taken together with the other duties and responsibilities they are required to perform it makes clear that Level 3 is the appropriate classification.
[13] UWU also refers to the decision of the Fair Work Commission (the Commission) in Wesley Stanmus; Nahomie Lawton; Damien Fay; Anthony Baker v CPA Group T/A Corporate Protection Australia Group Pty Ltd [4] where the Commission placed emphasis on the location where the Security Officers performed their duties, being primarily at the gatehouse, in determining that Level 3 was the appropriate classification level. UWU accordingly submits that the correct classification for its members at the Bendigo site is Level 3.
[14] It also referred to some of the duties and responsibilities of the Security Officers and whether they fall within the indicative tasks listed at Level 3, noting that there has been a dispute in the past as to the correct characterisation of some of these duties.
[15] It submits, firstly, that the operation of fire alarm panels requires the employees to manage complex fire alarms, and if the Country Fire Authority (CFA) attends to escort them to the required location and to unlock doors, as necessary. In accordance with the Site Emergency Evacuation Procedure, and any emergency situations which might arise outside of normal working hours, the employees also assume the duties of controller at these times. These duties and responsibilities come within the Level 3, rather than Level 2 classification. It also rejects the submission by MSS that the Security Officers are not required to isolate fault alarms and note that the Standing Orders explicitly state that it is the responsibility of the Security Officers to isolate or turn off fire alarms.
[16] Secondly, the Active Guard System is an advanced monitoring system which is utilised by the Security Officers during their patrols. The first reference to patrolling in the classification structure is at Level 2 and therefore this duty cannot be covered by the Level 1 classification. The advanced nature of the monitoring system also means that Level 3 is the appropriate classification to cover the operation of this system.
[17] Thirdly, stock and material control duties are carried out by the Security Officers at the gatehouse, which is located at the entrance and exit to the site. They also carry out data input tasks which involve the manipulation of computer programs. The location of these duties, and the fact that the Security Officers maintain the loan register on Microsoft Excel, again means they come within the indicative tasks referred to at the Level 3 classification. The Computerised Maintenance Management System, which requires data input, is also located in the gatehouse.
[18] The Security Officers also access and maintain a control database for all visitors and contractors to the site, which contains over 2,000 visitor and contractor names. It is maintained on a Lotus Notes computer program and is again accessed by the Security Officers in the gatehouse. It again encompasses duties that come within the Level 3 classification as it involves the control and movement of persons at the gatehouse, while operating computer-based systems requiring data input and the manipulation of data.
[19] The Security Officers also access the photocard database and prepare and issue ID cards. These duties are complex and extend beyond simply recording entries on a computer-based system.
[20] UWU also provided the following table[5] regarding some of the duties and responsibilities and contrasted its position with that of MSS. It also submits that this is not a comprehensive list of all of the duties and responsibilities which come within the Level 3 classification.
Security Officer - Level 3 Covered by cl. 20.3.4(b)
Security Officer - Level 2 Covered by cl. 20.2.3(f) and
Security Officer - Level 3 Covered by cl. 20.3.4(c)
Security Officer - Level 2 Covered by cl. 20.2.4(g)
Record and/or report security incidents using a computer based
Security Officer - Level 3 Covered by cl. 20.3.4(c)
Security Officer - Level 2 Covered by cl. 20.2.4(g)
[21] The Security Officers should also be entitled to back payment prior to 1 January 2017 as they were incorrectly classified at Level 1 prior to this time, and their duties and responsibilities have not changed substantially since then. It notes that MSS has highlighted two matters to justify the reclassification that occurred from 1 January 2017. Firstly, it was agreed that from that time creating and issuing photo IDs would be undertaken by all Security Officers, and not just the Senior Security Officer. Secondly, it was decided that all Security Officers would perform some additional duties that would move them to the Level 2 classification. MSS also indicated that if they had been performing any of these duties prior to this time, this was not authorised and had occurred outside of the Site Operating Procedures.
[22] UWU disputes that these changes provided justification for this reclassification, and submits that the Security Officers had been required, prior to this time, to access the photocard database and to prepare and issue ID cards. They also had a variety of additional duties and responsibilities that extended beyond the Level 1 classification, and in some cases, this occurred at the direction of the client.
[23] UWU submits, in conclusion, that the Security Officers should have been classified at the Security Officer - Level 3 classification from the time they were first employed and should have been paid at that classification level since that time. It submits, in the alternative, that they should have been classified and paid at all times at the Security Officer - Level 2 classification and should therefore be entitled to back payment from the time each was first employed.
[24] UWU also responded to some of the matters raised by MSS. It notes, firstly, that MSS submits that some of the tasks and duties listed are simply minimum employment and/or workplace requirements. UWU concedes in response that some of the duties listed are minimum requirements but are relevant as they provide context to the nature of the overall duties required to be performed.
[25] It notes, secondly, that MSS argues that the tasks have been broken down and itemised rather than grouped under headings encompassing similar duties. It again concedes that this is the case, but they have been listed in this way so that they can each be individually analysed. It also submits that whether the duties and responsibilities are grouped or not has no impact, ultimately, on how they should be classified. It also notes that MSS does not appear to have disputed the nature of the actual duties performed.
[26] It again acknowledges that because the Security Officers work alone, with limited supervision, is not of itself sufficient to classify them at Level 3, but this is significant when combined with the range of other duties they are required to perform. It also submits that the requirement for many of the duties to be carried out at the gatehouse is important, and differentiates their role from that of a Security Officer standing outside a shopping centre or located at an entertainment venue. It also notes that at least six of the duties identified by MSS as being performed at other defence sites are also performed at the Bendigo site, and this again provides support for them being classified at Level 3. It also notes that there have been minimal changes to the Guard Post Orders between 2013 and 2018, which provides support for back payment being made prior to 1 January 2017.
[27] Mr Watkinson has worked as a Security Officer for MSS since October 2010 and has been located at the THALES Bendigo site for all of that time. He attached a document to his witness statement entitled THALES Bendigo Duties & Responsibilities[6], which lists the duties and responsibilities of the Security Officers at the site, and how often they are required to be performed. It also indicates whether they are included in the Site Operating Procedures, or where the authority to carry out these duties and responsibilities otherwise emanates from.
[28] The duties and responsibilities of the Security Officers at the site have not changed a great deal since Mr Watkinson commenced working at the site in 2010. They spend the majority of each shift in the gatehouse, with the entirety of the day shift from Monday - Friday being spent in that location. The conclusion of the night shift and the commencement of the afternoon shift is also spent in the gatehouse. At other times the Security Officers spend approximately 55% of their time during each shift in the gatehouse, with the remaining 45% spent carrying out patrols. This is confirmed by the patrol logs[7].
[29] The site is a complex one and it takes time to become familiar with the location. All Security Officers have to apply for a negative vetting Level 1 clearance, and as part of holding this clearance are required to report any changes in their personal circumstances, including change in personal relationships, their financial situation, any overseas travel plans, as well as other matters related to their personal life.
[30] The Security Officers are expected to be able to manage the fire alarm panel, and if the CFA attends to escort them to the relevant area and unlock any locked doors. The fire alarm panels are complex, and the Security Officers have to monitor and operate the panel when they are in the gatehouse and when they are on patrol.
[31] The Security Officers are also required to monitor equipment that is taken off site and maintain a loan register administered by means of a Microsoft Excel spreadsheet. They are also required to complete computer data entry using a Computerised Maintenance Management System. This is operated from the gatehouse. They are also required to access and maintain a control database for all visitors and contractors attending the site and this is maintained on a Lotus Notes computer program. All Security Officers are also required to print and issue photo identification (ID) cards, as required.
[32] Mr Watkinson also indicated in cross-examination that it was not correct to say that the majority of recording duties involved pen and paper entries, and there was instead a significant amount of data entry required. He also indicated that he has never worked at a site in a Level 3 classification. He also indicated in broad terms that he considered that some of the key reasons why the Security Officers should be classified at Level 3 were because they work alone; they have responsibility for dealing with the fire panel; they are involved in printing and distributing ID cards, and there are a significant number of additional duties which are different in nature and contribute to the complexity of the role.
[33] Mr Watkinson was also taken in cross-examination to a number of the duties and responsibilities listed on the document Thales Bendigo Duties & Responsibilities[8]. He provided the following responses about some of the individual duties and responsibilities listed in that document.
FOLLOW DEFENCE INDUSTRY PROTOCOLS - this related to the negative vetting clearance that the Security Officers are required to undertake, and the requirement for them to provide updates about changes in their personal circumstances, any overseas travel, their relationships, their financial situation, together with a range of other matters. Mr Watkinson indicated that he understood that there were four different levels of security vetting at defence sites, and the Security Officers were required to be at the second level, which was one above the level of the clients' employees at the site.
ASSUME THE RESPONSIBILITY AND DUTIES OF THE CONTROLLER OUTSIDE NORMAL WORKING HOURS - Mr Watkinson indicated that this requires the Security Officers to assume the role of a Fire Warden or Controller at the site outside of normal business hours. They are required to monitor the fire panel in this role and have a significant responsibility as a potential first responder.
COMPUTER DATA ENTRY - there are a number of duties and responsibilities that the Security Officers perform under this heading. This includes the issuing of ID credentials which involves printing and creating ID cards and can require ten or twelve different steps including taking a photo, cropping the photo, and loading a range of details onto the system. Mr Watkinson acknowledged that most of the ID cards would be issued by the Senior Security Officer working during the day shift, however, all guards can be required at different times to be involved in creating and issuing ID cards. There are also a range of other computer-based operations associated with a number of other duties that the Security Officers are required to perform.
CONTRACTORS HSE INDUCTIONS AND INDUCTION REGISTER - The Security Officers are required to assist with the health and safety inductions which involves providing the relevant pamphlet to the person involved and ensuring that they have answered the questions correctly before they are allowed on site. This task again primarily occurs during day shift but can occur at other times. The Security Officers are then required to make sure that the inductions of those entering the site are kept up-to-date, and if they have expired then the induction is required to be carried out again. However, Mr Watkinson acknowledged that this did not involve any data entry, but requires a search to be conducted through the list of contractor and employee names held on the computer system.
VEHICLE ENTRY CONDITIONS AND PROCEDURE - Mr Watkinson acknowledged that the task of opening the entry and exit gates only required a button to be pressed, however, there were a large number of employees and contractors arriving and exiting the site, particularly at shift start and finish times. The Security Officers could also be involved in checking vehicles and bags, and while this task was not necessarily complex it was required to be performed along with a range of other duties, and contributed to the complexity involved.
[34] Mr Watkinson also indicated in cross-examination that there was limited supervision available at the site, and the Senior Security Officer is only on duty between 8:00 a.m. and 4:00 p.m. They otherwise only receive monthly visits from MSS managers, and if problems arise the Security Officers will generally do what they can to try and rectify those problems themselves.
[35] He also stated, in conclusion, that some of the duties and responsibilities that the Security Officers are required to carry out are complex, but the overall number of tasks and responsibilities contribute significantly to the complexity of the role. The site is also a busy one with a large number of employees and contractors attending at the site at different times during each shift. However, he also acknowledged that he had not carried out a comparison of the duties and responsibilities performed at the Bendigo site with those carried out at other THALES defence sites where MSS has the contract to provide security services.
[36] Mr Day provided a brief statement which indicated that he has worked at the THALES Bendigo site as an employee of MSS since October 2012. He stated that he has read Mr Watkinson's witness statement and agrees with the content of that statement, and it is an accurate description of the duties and responsibilities carried out by the Security Officers.
[37] Mr Wells also provided a brief statement indicating that he has been employed at the site since September 2014. He also supports the content of the witness statement provided by Mr Watkinson.
[38] MSS indicated in its submissions that the THALES Bendigo site is a large site of approximately 24 hectares which is secured by a perimeter fence and access gate. It contains a number of different buildings which are used in the manufacture and storage of Protected Mobility Vehicles.
[39] The Security Officers are primarily located at the front gatehouse, which is not a modern facility and has basic functional fittings and limited space. There is a computer on site, however, there is no requirement for the Security Officers to monitor building management systems and they do not manage or maintain access control systems or CCTV. There is also minimal interaction with the majority of persons entering or exiting the site. The site only requires one Security Officer to be on duty at any one time, and they work alone with only a minimal overlap occurring at the conclusion of the day shift.
[40] The site is classified by MSS as a Level 2 site, based on the classification levels in the 2017 Agreement. The duties of the Security Officers are documented in full in the relevant Guard Post Orders which MSS attached to its submissions. They are also required to perform some other duties, including recording and reporting of incidents on a computer-based system, acting as first responders to security incidents, random and periodic bag/vehicle checks, creating and printing photo ID cards, and conducting foot and vehicle patrols, together with a range of other duties.
[41] MSS submits that the employees are appropriately classified at the Level 2 classification as the duties reflect the indicative tasks outlined at that classification level. It refers to the following duties in this context - acting as first response to security incidents or matters; securing, watching, guarding, protecting as directed, including responses to alarm signals; patrolling; monitoring and responding to electronic intrusion detection or access control equipment (not requiring complex data input into a computer); and recording and/or reporting security incidents or matters on a computer-based system.
[42] It contrasts these duties with those typically associated with the Level 3 classification, being movement of persons, vehicles, stock and material utilising monitoring and operating computer-based systems requiring data input, including manipulation of spreadsheet based computer programs and other advanced monitoring system; as well as monitoring and operating complex building operation system such as water towers/chillers, temperatures etc.
[43] When the dispute was first raised in October 2016 about the appropriate classification level it conducted a classification review and discussed with the client what duties it required to be performed. It was subsequently agreed with the client that it involved a range of duties encompassed by the Level 2 classification, and this change became effective from 1 January 2017, with the additional duties being carried out by the Security Officers at the site from that time.
[44] MSS subsequently carried out a review in 2018, following a further dispute about the nature of the duties performed, and it was concluded as part of that review that the duties to be performed did not require the Security Officers to exercise computer skills at a level higher than Level 2, as they are not required to exercise complex skills or manipulate data. In addition, they do not monitor fire panels or program access cards. The Level 3 classification, by contrast, is typically associated with complex monitoring and computer-based functions and responsibilities. The Security Officers at the Bendigo site do not perform, and are not required to perform, these duties.
[45] MSS also provided responses to a number of the matters contained in UWU's submissions[9].
A number of the tasks and duties highlighted in its submissions have been broken down and itemised to make them appear more extensive, when they should have been grouped under single headings such as, for example, "Recording and reporting of maintenance issues."
• MSS rejects the claim that the Security Officers should be classified at Level 3 because they spend a significant amount of time working alone. It notes in this context that the Level 2 classification refers to "works from complex instructions and procedures under general supervision," and "coordinates work in a team environment or works individually under general supervision of a more Senior Security Officer who may or may not necessarily be on site.[10]"
[46] MSS also submits that the Bendigo site is different from other THALES sites. While the general duties involved at other sites are similar there are additional duties that require a higher level of operation. For example, the Mulwala site has a large number of cameras which are monitored 24 hours a day on six CCTV screens. They also monitor and action approximately 40 alarms and use electronic visitor contact systems which require the Security Officers to input data. There is also a wider range of indicative duties at that site. A similar situation applies at the Benalla and Mangalore sites.
[47] MSS submits, in conclusion, that the appropriate classification for the Bendigo site is Level 2 as the duties reflect the indicative tasks outlined at that level in the 2017 Agreement. These include acting as first response to security incidents or matters; securing, watching, guarding protecting as directed; including responses to alarm signals; patrolling; monitoring and responding to electronic intrusion detector or access control equipment (not requiring complex data input into a computer); recording and/or reporting security incidents or matters on a computer-based system.
[48] It continues to submit that while some tasks and duties could be classified at the Level 3 classification the nature of their duties would need to be far more complex than those currently undertaken at the Bendigo site for them to be classified at that level. In particular, the computerised functions and tasks performed are not complex, and the main focus of their duties and tasks which fill the majority of their time on shift, clearly fall within the Level 2 classification. In addition, there is no requirement to monitor building management systems, they do not manage and/or maintain access control systems or CCTV, and the majority of people entering/accessing site are employees and authorised contractors who require minimal interaction with the Security Officers.
[49] MSS submits, in conclusion, that its client only requires duties to be performed at the Level 2 classification and, in any case, the tasks and duties performed by the Security Officers do not involve sufficient complexity to be classified at Level 3. UWU has also sought to rely on the site security clearance requirements and the volume of tasks to be performed, rather than the complexity of those tasks and duties, in support of its submissions. That complexity has been sought to be demonstrated particularly by the evidence provided by Mr Watkinson, but it does not stand up to scrutiny when examined closely. The Commission is also required to have regard to the principal purpose of the employment, and this does not allow a conclusion that the role should be classified at Level 3.
[50] Mr Mayne is employed by MSS as a Business Manager - Client Services and has worked for the business for more than 22 years. He has been in his present role for the last five years and was responsible for managing the contracts MSS has with THALES, including the Bendigo site, until July 2018.
[51] The facilities at the Bendigo site are not modern and the gatehouse contains basic facilities. The site is accordingly classified as a Level 2 site. The principal documents which detail the requirements of Security Officers at the site are the Security Employee Standing Instructions and the Guard Post Orders. The Guard Post Orders are agreed upon by MSS and the client, and as part of the most recent contract renewal MSS reviewed all tasks at the site. Any operational changes the client subsequently requires our made by updating the Guard Post Orders.
[52] Mr Mayne indicated in his witness statement that he reviewed the duties that Mr Watkinson claims the Security Officers are required to carry out. He made a number of observations in response. Firstly, they contain a number of minimum requirements rather than listing specific duties. These include "Protect people, information, assets, infrastructure...[11]," "Completing online training...[12]," "Maintaining a Negative Vetting level 1 clearance...[13]," and "Study folders, Site Operating Procedures ... and the training notes folder...[14]"
[53] In addition, a number of the tasks have been broken down into individual components, rather than being grouped together into categories such as "recording and/or reporting of maintenance issues" and "...Recording and/or reporting of security incidents or matters on a computer-based program.[15]"
[54] There are 38 items on the list provided by Mr Watkinson which are deemed to fall within the Level 3 classification. However, that classification level involves a high degree of computer data entry and manipulation of data concerning the control and movement of people, vehicles and stock. It also involves monitoring and operating building control systems, which are not a part of the requirements at the Bendigo site, and therefore the Security Officers are classified appropriately at the Level 2 classification.
[55] Mr Mayne also provided the following responses to those matters relied on by UWU in support of the employees being more appropriately classified at the Level 3 classification.
He rejects the claim that the Security Officers should be classified at Level 3 because they spend a significant amount of time during each shift in the gatehouse. The critical factor is not the location where the tasks or duties are performed, but rather the nature of the tasks or duties themselves. The fact that the Security Officers perform the majority of their duties in the gatehouse does not automatically change the classification of their duties to Level 3. In addition, a number of these tasks could be performed at a variety of locations.
In response to the claim that the Security Officers monitor and operate building operations systems, including the fire panel, this task is covered at the Level 2 descriptor when it refers to Security Officers being "required to act as first response to security incidents/matters" and may perform "duties of securing, watching, guarding, protecting as directed, including responses to alarm signals." The Security Officers are not required to monitor complex fire alarms, as described at the Level 3 classification, and are only required to silence a fault alarm, rather than to isolate it.
The Active Guard System is a patrol verification system which all classifications are required to use. It is covered in the Level 1 classification when it states Security Officers "may be required to use electronic equipment such as handheld scanners... which do not require data input." The Security Officers are not required to monitor and operate under supervision a building operation systems terminating at a visual display unit or computerised printout to the extent outlined at the classification 3 level.
The Security Officers do not perform stock and material control at the gatehouse in a manner that requires data input and manipulation of computer programs. They are not required to manipulate computer programs and their role is covered at the Level 1 classification when it states that Security Officers may "be stationed at an entrance/exit, where principal duties will include the control of movement of persons, vehicles, good/property coming out of going into premises or property, including vehicles carrying goods of any description, to ensure that the quantity and the description of such goods is in accordance with the requirements of the relevant document/gate pass."
In regard to the operation of the maintenance management system this requires basic data entry which is covered at the Level 2 classification when it refers to "recording and/or reporting security incidents or matters on a computer-based system." The Security Officers are not required to manipulate computer spreadsheets or programs to the extent outlined at the Level 3 classification.
The use of the Lotus Notes program is an online database which requires non - complex input from the Security Officer. It is again covered off at the Level 2 classification when it states: "recording and/or reporting security incidents or matters on a computer-based system."
• The Security Officers are required to take photo IDs and to save them on the computer before printing out the ID card. However, the programming of access is not required. This task is again covered off under the Level 2 classification description referred to above and the Security Officers are not required to manipulate computer spreadsheets or programs to the extent described at the Level 2 classification.[16]
[56] Mr Mayne concluded by stating that the required duties to be undertaken at the Bendigo site do not require the Security Officers to exercise computer skills at a higher level than the Level 2 classification, given that the tasks and duties are not complex, and do not require manipulation of data. The site is accordingly correctly classified at the Level 2 classification.
[57] He also acknowledged in cross-examination that the relevant Guard Post Orders were changed as from 1 January 2017, but, were not actually signed off on by the client until November 2017. However, the Security Officers were working under the changed arrangements from 1 January 2017.
[58] He also acknowledged that outside normal business hours, which are generally between 8:00 a.m. and 6:00 p.m., the Security Officers are required to act as the controller on site for the remaining 16-hour period on those days.
[59] Mr Brodie is a State Operations Manager with MSS and has been managing the contracts with THALES at its various defence manufacturing sites, including the Bendigo site, since August 2018. He took over this responsibility from Mr Mayne.
[60] He also indicated in his witness statement that the guardhouse is a basic facility with limited space. While there is a computer on site there is no requirement for the Security Officers to monitor sophisticated building management systems, and they do not manage or maintain access control systems or CCTV. There is also minimal interaction with persons entering or exiting the site.
[61] The two principal documents which outline the requirements of the Security Officers at the site are the Employee Standing Instructions and the Guard Post Orders, otherwise known as the Site Operating Procedures. The Standing Instructions set out MSS's policies and procedures, which are role rather than site specific. The Guard Post Orders provide the details about the duties and responsibilities to be carried out at the site in accordance with the contract entered into with the client. Mr Brodie was not aware of any circumstances in which the Security Officers have been asked to undertake additional duties over and above those set out in the Guard Post Orders.
[62] He indicated in his evidence that he had reviewed the list of duties set out by Mr Watkinson in the document headed THALES Bendigo Duties & Responsibilities. A number of the matters referred to are either minimum requirements or are not specific tasks or duties. The list also contains tasks that have been itemised when they should have been grouped together, and this has the effect of skewing the number of duties listed. He acknowledged that the requirement to act as a controller outside of normal business hours might best be classified as a Level 3 responsibility, however, given the limited requirement to act in this role (approximately six times per year) he did not consider that the overall nature of the duties and responsibilities performed by the Security Officers warrants a classification level higher than Level 2.
[63] In addition, the most important consideration is the actual nature of the duties and responsibilities undertaken, rather than the location where those duties and responsibilities are carried out. He also responded to some of the matters canvassed in the evidence and submissions.
The Security Officers are required to silence the alarm on the fire panel, record it in the relevant logbook or ISOPRO, and then contact the THALES maintenance area. The fire panel is located outside of the gatehouse adjacent to the entrance and the Security Officers do not monitor the panel, but only take action when an alarm is activated and then allow access to the CFA and/or emergency services, if required. Since 2017 there have been a total of five fire alarms requiring the CFA to attend the site. In the event of a false alarm occurring notification of this is provided to an on-call THALES employee, who then contacts the Security Officer in the gatehouse who deactivates or disengages the alarm at the fire panel.
The Active Guard monitoring system only requires the Security Officers to swipe handheld scanners at certain points during the course of their patrols, and is most appropriately classified at Level 1.
The stock and material control at the gatehouse is a Level 1 or 2 duty as it primarily involves a number of paper-based processes, and any data entry into the computer systems does not require the Security Officers to manipulate computer programs.
The MEX OPS Computerised Maintenance Management System is again appropriately classified at Level 2 as it involves non-complex data entry and a drop-down selection process when a maintenance issue is required to be reported. It again does not require the Security Officers to be involved in manipulating computer programs, and there are only one or two entries logged by the Security Officers on average each week.
The Lotus Notes program also involves a click search and is again a non- complex data entry process which is again appropriately classified at Level 2.
• The Level 2 classification is also appropriate for accessing the photocard database, creating cardholder records and photo ID cards, and printing ID cards. The programming of access is not required, and the Security Officers are instead required to take a photo, save it on the computer, enter the person's name, and then print the ID card. The process can be compared to taking a photo, inputting it into the computer system, naming the document, and then printing it as part of an incident report.[17]
[64] The Bendigo site can also be contrasted with the sites at Mulwala, Benalla and Mangalore which are large sites, and deemed as prohibited areas. While the general nature of the duties is similar to those performed at the Bendigo site the Security Officers at the other sites work in pairs and there is a requirement for a higher level of operation with more sophisticated facility control systems and a requirement to monitor alarms on site.
[65] He also visits the Bendigo site on a monthly basis and there are also Site Supervisors who attend the site "out of hours" each month.
[66] The principles established in regard to the interpretation of industrial instruments such as an enterprise agreement are well established and well understood and were recently confirmed by a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[18] (Berri). They make clear that as far as possible the relevant words should be given their plain and ordinary meaning. I am satisfied that in this case the relevant words in clause 20 of the 2017 Agreement have a plain and ordinary meaning and should be interpreted and applied in that way.
[67] MSS referred in its submissions to the decision of Commissioner Williams in Douglas Harland; Ian Johnson; and Richard Hilleard v MSS Security Pty Ltd[19]. The employees in that matter were also Security Officers employed by MSS who were primarily located at the gatehouse at the front entry and exit to the site. The Security Officers also worked alone, with one employee rostered at all times across seven days a week.
[68] The dispute concerned the correct classification level for the three Security Officers. Commissioner Williams made reference to two decisions of the Federal Magistrates' Court of Australia. In Sim v LUO Enterprises Pty Ltd (No 2)[20] Federal Magistrate O'Sullivan concluded that in assessing the appropriate classification level the applicable principle to apply was to consider what was the "...major and substantial employment." Similarly, Federal Magistrate Lucev in Olsen v Wellard Pty Ltd [2008][21] concluded that it was necessary to "...identify the principal purpose of the employment."
[69] Commissioner Williams concluded that some of the work in the matter before him clearly fell within the higher Security Officer Level 4 classification when that work was considered in isolation. However, that did not of itself determine what was the correct classification for the three employees, and it was instead necessary to look at what was "...the major and substantial employment of the Applicants."
[70] He concluded that the employees, who worked at the gatehouse location, were engaged substantially to carry out tasks and duties that properly fell within the classification of Security Officer Level 3, given the principal purpose for which they were employed.
[71] UWU also makes reference in its submissions to the decision of the Commission in Stannus, Wesley v CPA Group T/A Corporate Protection Australia Group Pty Ltd[22] when it concluded that:
"...Where skills, responsibilities, and indicative tasks can be identified at more than one classification level it also requires confirmation of the functions most commonly performed by an employee on a regular basis.[23]"
[72] Clause 20 of the 2017 Agreement sets out the classification structure. It involves an escalating level of skill, responsibility, authority and complexity of duty from the lowest level to the higher levels. There is also some commonality of tasks and functions which are carried out to varying degrees at each classification level, and there is inevitably some overlap between each level, with no definitive border or boundary between any two classification levels. There is also a description at each level of the skills and responsibilities required to be exercised at that level. This is followed by some examples of the indicative tasks an employee at each level may be required to perform.
[73] The task of establishing which is the correct classification level for the Security Officers at the Bendigo site accordingly involves having regard to the evidence and submissions regarding the work performed and the responsibilities undertaken. It is then necessary to make a comparison with the job descriptions and indicative tasks set out at each classification level. It is appropriate at this point to set out the classification descriptions and indicative tasks for the Security Officer classification at Levels 1, 2 and 3, as set out in clause 20 of the 2017 Agreement, before turning to consider the evidence relied on by the parties. They are as follows:
20.1.1 A Security Officer Level 1 is an employee who has completed at least a Certificate II in Security Operations so as to enable the employee to perform work within the scope of this level and who performs work to the level of their skills, competency and training
20.1.3 Indicative of the tasks which an employee at this level may perform are the following:
20.2.1 A Security Officer Level 2 is an employee who has completed at least a Certificate II in Security Operations so as to enable the employee to perform work within the scope of this level.
20.2.2 An employee at this level performs work above and beyond the skills of a Security Officer Level 1 and to the level of his/her skills, competence and training.
20.2.4 Indicative of the tasks which an employee at this level may perform are the following:
20.3.1 A Security Officer Level 3 is an employee who has completed at least a Certificate II in Security Operations and is able to exercise the skills and possess the knowledge of the location where the employee is posted by the Company so as to enable the employee to perform work within the scope of this level under limited supervision which may or may not necessarily be at the site where the officer is posted.
20.3.2 A Security Officer Level 3 works above and beyond the skills of an employee at Level l and Level 2, and to the level of his/her skills, competence and training.
20.3.4 Indicative of the tasks which an employee at this level may perform are the following:
[74] The evidence relied on by the parties has been set out in some detail already and is not restated now. In summary, UWU points, in particular, to the references in the indicative tasks set out in Level 3 to the "control of movement of persons, vehicles, stock and materials at gatehouses," and to "stock and material control at computerised gatehouses." It also highlights the fact that there is no reference to employees working at gatehouse locations in the job descriptions or indicative tasks at Levels 1 or 2.
[75] It also points to the broad range of tasks and duties that may be required to be performed by the Security Officers at what is a large and complex site. They also work alone with limited supervision and consequently are required to exercise a significant degree of discretion in terms of how they carry out their duties and responsibilities. They are also required to have Defence Department security clearances, which requires that they provide a significant amount of personal detail in order to obtain that clearance. They must then keep these details updated as their personal circumstances change.
[76] UWU also pointed to a range of duties, which it submits clearly come within the Level 3 classification. These include, in particular:
Operation of fire panels,
Operation of the Active Guard System,
Stock and material control at the gatehouse,
Complete computer data entry using the MEX OPS,
Access the control database on the Lotus Notes program,
Record and/or report security incidents using a computer-based system, and
• Access the photo card database and print ID cards.[24]
[77] MSS submits, in response, that the gatehouse is not a modern facility, and does not require the operation of a complex computer-based management system. There is, for example, no requirement to manage or maintain computerised access control systems or CCTV.
[78] It also refers to a number of tasks in its submission, which are appropriately classified at Level 2 and can be contrasted with those set out at Level 3 which are not required to be performed. It refers in this context to the movement of persons, vehicles, stock and material utilising monitoring and operating computer based programs requiring data input, including manipulation of spreadsheet based computer programs and other advanced monitoring systems; as well as monitoring and operating complex building operation systems such as water towers/chillers, temperatures etc, none of which are required to be performed at the site.
[79] It also submits that the evidence of Mr Watkinson has attempted to make the duties and responsibilities appear more complex and involved by breaking them down into individual tasks and duties, when many of them are relatively straightforward and should be grouped under broad headings, which more accurately describe what is involved. As indicated, MSS also takes issue with the nature of the computer-based functions required to be performed and submits that they do not require the manipulation of data entered into the system or the monitoring of computer-based management systems.
[80] It submits instead that the responsibilities of the Security Officers fit within the Level 2 description when it refers to them being "required to act as first response to security incident matters" and may perform "duty of securing, watching, guarding, protecting as directed, including responses to alarm signals." However, it does acknowledge that the Security Officers are required to assume the role of controller on site outside of daytime business hours.
[81] MSS also points to the fact that the number of occasions on which the Security Officers are required to deal with issues associated with the fire alarm panel is limited. This is acknowledged, however, it would not normally be expected that dealing with fire alarms, faulty or otherwise, would be a regular occurrence. In addition, the Security Officers are still required to have the ability to deal with these issues when they do occur.
[82] It also submits that the claim that the Security Officers should be classified at Level 3 is not supported by the existing Guard Post Orders applicable to the Bendigo facility, which set out the duties and responsibilities to be carried out by the Security Officers at the site.
[83] UWU also points to the Active Guard System as evidence of more complex duties that warrant the Security Officers being classified at Level 3. However, the evidence indicates that this task does not involve them being required to input data, and the data is instead transmitted instantaneously when the wand is waived over a fob point. UWU also makes reference to the tasks and responsibilities associated with the ID cards. This involves maintaining the ID card database. However, it also involves issuing ID cards. Mr Watkinson's evidence indicates that this involves taking a photograph of the person, loading the photograph onto the system, cropping the photograph, and entering a range of additional information. He estimated that there around ten or twelve steps involved in this process. It was also acknowledged that most ID cards are issued during the day shift when the Senior Security Officer is rostered on, but it is also a task that each of the Security Officers can be required to carry out at any time during their shifts.
[84] UWU also points to the responsibilities associated with the control and movement of persons, vehicles, stock and materials at the gatehouse. It submits that this does involve a range of duties and responsibilities, some of which include data input and the manipulation of computer programs. A large number of employees and contractors access that site at the commencement of the day shift, in particular. The Security Officers also maintain a Lotus Notes control program for all visitors and contractors to the site, which contains more than 2,000 entries. They also maintain a loan register on a Microsoft Excel speadsheet, which records the details of all equipment owned by THALES which is borrowed from the site from time to time.
[85] The Security Officers also maintain a pool car register on a Microsoft Excel spreadsheet to control the loan of vehicles from the site. The site maintenance reporting system is also computer-based and requires that any maintenance issues or other problems identified during the course of a shift are to be entered into the system. MSS submits, in response, that most of these computer-based tasks and responsibilities are relatively straightforward and involve little or no manipulation of data. Mr Watkinson also acknowledged in his evidence that some of these tasks do only involve data entry, but the number of different tasks that the Security Officers can be required to carry out contributes to the overall complexity of the role.
[86] UWU also relies on this disparate range of tasks and responsibilities that the Security Officers can be required to carry out across a large defence site in support its submission that they should be classified at Level 3, and relies again on the evidence of Mr Watkinson in this context.
[87] The evidence makes clear that the Bendigo site is relatively large and has a diverse range of facilities. The Security Officers work alone, and this requires them to exercise a degree of discretion in terms of how they carry out their responsibilities, given that they have limited immediate supervision or support available.
[88] It is also clear that there are a number of duties and responsibilities that the Security Officers can be required to carry out, and while some may only be performed infrequently, it is still necessary that they are familiar with what is required in the event that they need to be carried out.
[89] Much emphasis has been the placed on the requirement to carry out computer-based tasks. UWU submits that these do involve a degree of complexity and in some cases do require the manipulation of data. MSS has attempted to downplay the significance of these requirements and submits that they only involve straightforward data entry. It also submits that there are still a number of paper-based processes. However, it is clear from the evidence that the preparation and issuing of ID cards, for example, involves a number of different computer-based processes and steps. There are also a range of other computer-based duties and responsibilities that have been identified in the evidence including:
the loan register which is maintained on a Microsoft Excel spreadsheet;
the MEX OPS for recording necessary maintenance and other issues that arise from time to time during the course of the shift;
the control database of visitors and contractors working at the site which utilises Lotus Notes. This is a computer-based system which is used to record the site entry and departure of contractors and visitors;
the HSE inductions register;
the pool car register which is maintained on a Microsoft Excel spreadsheet.
[90] There has also been a significant amount of evidence provided about the requirement to manage control systems at the site, and MSS points to the more sophisticated control systems at other sites, that do not exist at the Bendigo site. However, the evidence also makes clear that the Security Officers are required to silence a fault alarm and identify the location of any fault alarms. Any actual fire alarms are also required to be recorded in ISOPRO. They are also required to respond to the fire panel when necessary. The Security Officers also assume the responsibility of controller at the site outside of normal business hours in relation to any emergency situations that might arise, and this is acknowledged by MSS to be a significant responsibility which is appropriately classified at Level 3.
[91] It is also evident that the Security Officers are required to have a significant degree of knowledge about the location, given its size and diversity. This requirement is encompassed at the Level 3 classification. They are also required to work independently with limited supervision and as a consequence are required to exercise a significant amount of discretion in how they carry out their roles and responsibilities.
[92] MSS also seeks to rely on the Guard Post Orders that apply to the Bendigo facility in support of its submissions. Copies of what were claimed to be the current applicable Guard Post Orders were attached the witness statements of both Mr Mayne and Mr Brodie. However, they appear to be different documents in some respects, with the copy attached to Mr Brodie's witness statement appearing to be a more recent version. However, it is also noted that the employee declaration at page 6 of that copy has not been completed by any of the Security Officers. The document also contains some handwritten amendments instead of being reprinted when circumstances change. However, it appears to be the most recent version of the Guard Post Orders and the one that should be relied upon.
[93] As indicated, MSS seeks to rely on the Guard Post Orders in support of its submission that they set out the site-specific duties and responsibilities required to be performed by the Security Officers. It also submits that many of these duties and responsibilities only involve pen and paper-based processes that do not warrant classification above Level 2. However, I am not satisfied that the Guard Post Orders can necessarily be relied on to provide an accurate representation of how the Security Officers actually carry out their duties and responsibilities. They appear to contain only a rudimentary description of what is required without going into any significant detail about how those duties and responsibilities are to be carried out. For example, the only reference that appears to be made to the use of a computer appears at clause 5.6.6 i. when it refers to:
"i. Create and issue photo ID passes to employees if directed by the client
[94] However, the evidence makes clear that there are a range of additional computer-based tasks that the Security Officers are required to carry out on a regular basis. In summary, while MSS might seek to rely on the Guard Post Orders in support of its submissions I am not satisfied that they necessarily provide an accurate and up-to-date description of the way in which the Security Officers are actually required to carry out their duties and responsibilities based on the evidence provided in these proceedings.
[95] I have also had regard to the indicative tasks set out at Levels 2 and 3. There is no reference to Security Officers working in a gatehouse or similar location in the indicative tasks set out at Level 2. It appears instead to contemplate the work of Security Officers performed at other types of locations, such as a shopping centre, nightclub, sporting event or entertainment venue. However, the indicative tasks set out at Level 3 make reference to work performed in "gatehouses and similar locations" on two separate occasions.
[96] It is acknowledged that these references to "gatehouses and similar locations" at level 3 are qualified by reference, firstly, to "control of movement of persons, vehicles, stock and material .... utilising, monitoring and operating computer-based systems requiring data input including manipulation of spreadsheet based computer programs or other advanced monitoring system" and, secondly, to "stock and material control .... requiring data input and manipulation of computer programs e.g. Microsoft Excel and other similar programs."
[97] However, the evidence leaves no doubt that the principal purpose of the employment of the Security Officers in this matter is to perform a range of duties and responsibilities at the gatehouse. The evidence also makes clear that this involves a range of computer-based tasks which include both data entry and the manipulation of computer programs, including Microsoft Excel. It also involves important responsibilities in relation to fire alarms and out of hours emergency situations.
[98] It is also noted that in both of the Commission decisions that have been referred to by the parties, which each concern the employment of Security Officers at a gatehouse location, the employees are classified at Level 3.
[99] I am satisfied, in conclusion, that the work being carried out by the Security Officers at the THALES Bendigo site is most accurately reflected by the skills and responsibilities, and the indicative tasks, set out in the Security Officer Level 3 classification in the 2017 Agreement, and they should accordingly be classified at this level.
[100] UWU also seeks to have the Commission make orders in regard to back payment. However, I am satisfied that this claim extends beyond the Commission's arbitral powers. It is, however, noted that the duties and responsibilities currently performed by the Security Officers do not appear to have changed in any significant way in the time that the existing employees have been employed, although this was not a matter that the Commission was directly required to turn its attention to.
[5] Applicant's submissions paragraph 33.
[6] Applicant's document list (2 of 5) at pages 39 - 43.
[11] Exhibit MSS1 at paragraph 22(b)(i).
Printed by authority of the Commonwealth Government Printer
United Workers' Union
MSS Security [2019] FWC 8209
FLAG PROTOCOL - This applies when visiting dignitaries attend the site. There are a range of flags in the guardhouse which the Security Officers are required to raise and lower at relevant times according to the protocol associated with flag raising.
TRAVEL BOOKING DATABASE - POOL CAR REGISTER AND ISSUE OF VEHICLES - This involves entries on an Excel spreadsheet. There are three vehicles at the site and this role involves booking the vehicle, providing keys to the driver, and signing the vehicle out. The vehicle must then be checked when it is returned to ensure that it has not been damaged in any way.
SIGNATURE ID LISTINGS - this involves signatures being checked against the signatures recorded on the computer system. Mr Watkinson acknowledged that it does not involve any data entry.
MEX OPS (SITE MAINTENANCE REPORTING) - this involves entering information on the computer system about any maintenance problems and issues that need to be addressed. Mr Watkinson also acknowledged that some of the other matters on the list including report lighting faults, toilet defects, and cleaning defects were all individual duties that could be grouped under this heading.
ACCESS HSE, SITE RISK ASSESSMENT AND OTHER FORMS - this involves printing out additional forms and documents, as required.
PROCESSING VISITORS, CONTRACTORS AND DELIVERIES - this involves providing site maps to visitors, checking licenses, and directing visitors and contractors to the correct locations on site. It can also require that the appropriate clothing is being worn and checking of vehicles and bags.
SCAN REQUIRED POINTS AROUND SITE WITH "ACTIVE GUARD" MONITORING SYSTEM - this relates to the "wand" that is carried by the Security officers on patrol and involves them swiping the wand at the ten or twelve different fob points located around the site. Mr Watkinson acknowledged that this does not involve any direct keyboard data entry into the computer system by the Security Officer, and when the wand is swiped that action transmits the data to the relevant recording point. The purpose is to ensure that patrols are carried out correctly, and that the guard safety is being monitored. However, he indicated that there have been issues in the recent past with the operation of the panic button, and whether it was operating correctly.
STUDY FOLDERS - this involves filing and maintaining documents.
SITE OPERATING PROCEDURES (POST ORDERS) - the Security Officers are required to follow the site-based Guard Post Orders. It is a significant and complex site with a number of extremely large buildings.
SOME AIR-CONDITIONERS IN ADMIN & BLD - Mr Watkinson acknowledged that the Security Officers are not responsible for operating an air-conditioning management system at the site. However, they are required to ensure that the air-conditioners in some individual buildings are operating at the correct temperatures, and in circumstances where they are not operating correctly they will attempt to remedy the problem, or otherwise report the problem.
The recording and reporting of security incidents is carried out on a simple tool requiring basic computer skills, and the Security Officers are not required to manipulate computer spreadsheets or programs to the extent described at the Level 3 classification. In addition, there have only been sixteen security incidents reported since 2016 and this task is rarely required to be carried out.