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[2017] FWC 5275
Fair Work Commission
2017-10-11
Commissioner Gregory
Original judgment source is linked above.
s.739 - Dispute resolution
Wesley Stannus; Nahomie Lawton; Damien Fay; Anthony Baker
CPA Group T/A Corporate Protection Australia Group Pty Ltd
Alleged dispute concerning classification structure and pay rates.
[1] This decision deals with separate applications made by four employees who each work as Security Guards or Security Officers at the Wivenhoe Power Station in Queensland. They are employed by the CPA Group T/A Corporate Protection Australia Group Pty Ltd ("Corporate Protection"), who currently have the contract to provide security services at the Power Station site. The four employees are Mr Wesley Stannus, Ms Nahomie Lawton, Mr Damien Fay and Mr Anthony Baker ("the Applicants"). Following receipt of the applications it was agreed that they should be joined and dealt with together.
[2] Each of the Applicants has worked at the Power Station site for several years and has been employed by several different employers during that time as the contract to provide security services at the site has been let to various contractors at different times. The Applicants claim that for most of this time they have been classified at the Level 3 classification in the Award that is now known as the Security Services Industry Award 2010 ("the Award").[1]
[3] However, in February of last year, the contract to provide security services at the site was awarded to Corporate Protection. After reviewing the scope of works provided to it by its client, Corporate Protection decided that the Level 2 classification in the Award was the appropriate classification level for the Security Guards, given the work required to be performed, and each of the four Applicants has been classified at that level since that time. However, the Applicants maintain that they continue to perform duties that should entitle them to be classified at the Level 3 classification and note, in particular, that they are primarily involved in operating computer systems in the Gatehouse at the Power Station, which is work that involves a degree of complexity.
[4] The Applicants subsequently lodged separate dispute notifications under s.739 of the Fair Work Act 2009 (Cth) ("the Act") claiming they were now classified incorrectly and seeking to be classified at the Level 3 classification in the Award. The applications were dealt with in conference on 7 April 2016 and again on 26 May 2016, but were not able to be resolved. The Applicants subsequently requested that the matters be set down for arbitration and they were accordingly dealt with in a hearing on 13 July 2017. Each of the parties appeared by telephone. The four Applicants appeared on their own behalf. Ms Nokya Harris, Corporate Protection's Senior Human Resources Advisor, and Ms Paula Holden, the People and Performance Manager, appeared on behalf of Corporate Protection.
[5] The submissions provided by Mr Stannus, which are also supported by the other Applicants, are based on the content of a letter forwarded to the Office of the Fair Work Ombudsman in June of last year. It states at the outset that the Security Officers at the Power Station have in the past typically been classified at the Level 3 classification in the Security Services Industry Award 2010. However, when the existing contractor, Corporate Protection, took over the contract to supply security services at the Power Station site it classified the employees at the Level 2 classification.
[6] The correspondence continues to refer to a memo that was provided to security staff at the site by Corporate Protection in May 2016. It sets out what is described as the "new Scope of Work for Wivenhoe Security".[2] It then lists in the left-hand column under the heading "Area"[3] the following elements of the work involved, being "Inductions, Monitoring, Emergency Preparedness & Response, Patrols, Alarms, Occupational Health & Safety, Environmental, Admin/Other".[4] In the right-hand column it then lists what are described as "Standing Tasks"[5] in respect of each of these different areas of work. Mr Stannus has, in turn, taken each of these so-called Standing Tasks and grouped them into what he describes as the four main roles that the security staff are required to carry out. In his view, these are "Access Control," "CCTV System Operating/Monitoring," "Emergency Response," and "Patrols".[6] A range of additional tasks are grouped separately under the heading "Incidental Tasks".[7]
[7] Mr Stannus also indicates that the employees' rosters are based on twelve hour shifts. During the night shift, and at weekends, six patrols of thirty minutes duration each are required to be carried out at the site, with two patrols being conducted during normal day shift business hours. The majority of the remaining time, apart from any emergency response activity or other incidental tasks, is spent in the Gatehouse. This generally means that the Security Officers are located in the Gatehouse for around 70 percent of the total time worked. During this time they are monitoring or operating the access control and/or CCTV systems known as the WinDSX Access Control System and the Milestone XProtect Smart Client CCTV Camera System. He continues to state that these Gatehouse computer systems can be described as advanced or complex and comprises a control system and a camera system, which generally takes a period of training for a computer literate person to be able to operate. Both systems are operated from two individual monitors located next to each other at the security workstation in the Gatehouse. They are often required to be used in conjunction with each other. The camera system also requires the operator to use the pan/tilt/zoom functions to identify and track what is happening utilising several cameras. Additional functions also enable footage to be retrieved for purposes of incident investigation and review. Mr Stannus also attached the detailed Win Users Guide, which contains a significant amount of detail in regard to the operation of the system, and indicates that an amount of complexity is involved. However, the Commission was not provided with confirmation about the extent to which the full capacity of the system is required to be utilised by the Security Officers.
[8] Mr Stannus continues to submit that all access control duties at the Power Station are carried out at the Gatehouse, and states that, "[a]n advanced computerised access system is utilised to create photographic ID cards, program proximity access cards, log induction/personal details, monitor entry and exits in real time, and generate history reports when required".[8] He also indicates that other access control duties extend to include:
" Verify ID & induction status for staff / Contractors and visitors and enter into the electronic access control system
• Conduct switchboard duties as required"[9]
[9] Mr Stannus also referred in his oral submissions to the indicative task referred to at C.2.3(d) in the Level 2 classification in the Award which states:
"(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"[10]
He submits, in response, that the work at the Gatehouse can be distinguished from this indicative task because it does involve complex data input into a computer.
[10] He also refers to the wording contained in the indicative task referred to at the Level 3 classification in the Award at C.3.3(a) when it states:
"(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"[11]
In his submission this description essentially describes the work performed by the Security Officers.
[11] Mr Stannus submits, in conclusion, that some of the individual tasks performed by the Security Officers could be said to fall within the Level 4 classification in the Award. In this context he refers specifically to altering parameters, programming access cards and the electronic auditing of time and date of access records. However, he also acknowledges that the main role or function in terms of the work performed is best described by the skills and indicative tasks identified in the Award at the Level 3 classification description.
[12] Ms Nahomie Lawton generally supported the submissions made by Mr Stannus. She also made reference to the employment contract provided to the Security Officers by Corporate Protection in January last year. It attached a Position Description, which indicated that the major responsibilities of the role are as follows:
" Perform the asset protection duties as directed by the Supervisor or Site Management
• Abide by, support and act in accordance with the following shared values whilst representing CPA and our client partner"[12]
[13] The Position Description also indicates that the Key Selection Criteria include, inter alia, a high and consistent standard of communication & interaction skills, working knowledge and understanding of computer systems, and the ability to rapidly acquire and maintain new skills as required.
[14] Mr Anthony Baker also provided a statement dated 13 June 2016, but indicated that he was generally supportive of the submissions provided by Mr Stannus, as was the other Applicant, Mr Damian Fay.
[15] Ms Harris submitted on behalf Corporate Protection that it had been provided with a Scope of Works document by the client, and it had in turn attempted to work through and establish what was the appropriate Award classification level that applied to the work of the Security Officers based on the work required to be carried out. The Scope of Works document both set out the extent of the work to be performed and then identified the specific tasks that came within that broad scope.
[16] Ms Harris also made reference to a document that Corporate Protection had prepared, which was headed "Security Contract - CPA." It was prepared following the initial conference at the Commission and was based on the scope of works document provided to Corporate Protection, which set out the client's requirements. Corporate Protection had in turn assessed each of the duties to be carried out in accordance with these requirements against the Award classification descriptions and, based on those assessments, had decided that the Security Officers were appropriately classified at the Level 2 classification. It noted that as part of this exercise there were "two or three duties that are level 1. The rest are level 2 and we have one duty that falls under a level 3."[13] Ms Harris also stated, "We understand how the employees can interpret that differently and that's where we look for guidance from you. If you determine that we have not classified this correctly, we're more than happy to classify it as a level 3. However, based on what we currently have as the scope of works document, our classification is a level 2."[14] A copy of the document prepared by Corporate Protection is set out below:[15]
[17] Clause 13 in the Security Services Industry Award 2010 states:
"13.1 Classifications are set out in Schedule C - Classifications. An employee performing work falling within the classification descriptions in Schedule C must be employed in a classification in Schedule C.
13.2 Despite an employee's classification, an employee is to perform all duties incidental to the tasks of the employee that are within the employee's level of skill, competence and training."[16]
[18] Clause 14 continues to set out the pay rates that apply at each of the five classification levels in the Award.
[19] The classification descriptions at each Level are then set out in Schedule C of the Award. There is a description at each Level of the skills and responsibilities required to be exercised by an employee classified at that Level. This is followed by some examples of the indicative tasks that an employee at each Level may be required to perform. It is appropriate at this point to set out "Schedule C - Classifications" in full. In doing so I have also highlighted in bold those extracts that appear to be of particular relevance to the determination of this matter.
(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.2.1 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.
(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;
(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 l provided that such duties are not designed to promote deskilling.
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.
(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.4.1 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.
(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.5.1 A Security Officer Level 5 works above and beyond an employee at Levels l, 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.
(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."[17]
[20] The principles established in regard to the interpretation of the terms of an industrial instrument are generally well known and understood and were recently confirmed by a Full Bench of the Commission in the decision in the Australasian Meat Industry Employees' Union v Golden Cockerel Pty Ltd [2014] FWCB 7447. It makes clear that, where possible, the relevant words should be given their plain and ordinary meaning. The task of establishing what is the correct classification level also involves a requirement to examine the available evidence and submissions regarding the work actually being performed and the responsibilities required to be undertaken. This is then required to be compared with the particular descriptors in the Award at each classification level. The appropriate classification level should also be ascertained by reference to the particular position involved, rather than by reference to the capabilities of the individual employee. 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.
[21] It can be noted that the Commission has been provided with a relatively limited amount of evidence and submissions in regard to the present applications. It is also not had the opportunity to inspect the worksite and to observe at first-hand the work being performed. However, it is understood that the work performed involves the employees being primarily located in the Gatehouse utilising the control and camera systems at that location, as well as carrying out a range of other associated functions and duties. These include regular patrols of the site. Two patrols are required to be carried out during normal day shift hours. However, on the night shift and at weekends the employees are required to carry out six patrols of thirty minutes duration as part of each shift.
[22] Mr Stannus estimates in his submissions that this generally means that the employees are located in the Gatehouse for around 70 percent of their total working time. He also submits that the computer based systems in the Gatehouse involve a degree of complexity and require an amount of training to be able to operate them effectively.
[23] This raises an initial presumption that the Security Officer Level 3 might be the appropriate classification, given that it specifically refers in two of the indicative tasks at that classification level to work involving the "control of movement of persons, vehicles, stock and materials at gatehouses and similar locations"[18] and to "stock and material control at computerised gatehouses".[19]
[24] The Commission has also been provided with a range of other documentation and submissions against the background of these classification descriptions in the Award. The submissions provided by Mr Stannus, which are supported by the other Applicants, as well as those provided by Ms Harris on behalf Corporate Protection, both make reference to the scope of works provided by the client as one important consideration in assessing the duties required to be performed and deciding which classification level in the Award is appropriate. The scope of works lists a series of "Areas"[20] that are involved in the functions required to be carried out. These are "Inductions, Monitoring, Emergency Preparedness & Response, Patrols, Alarms, Occupational Health & Safety, Environmental, and Admin/Other."[21] It then lists what are described as a series of "Standing Tasks"[22] in respect of each of these different Areas.
[25] Corporate Protection has reviewed these Standing Tasks and concluded that the majority involve either work or indicative tasks that fall within the scope of the Level 2 classification. It also submits that some of the Standing Tasks involved in regard to Inductions could be said to fall within the Level 1 classification. It refers, for example to the indicative task contained at Level 1 in the following terms - "provide safety induction to employees, contractors or visitors to the site."[23] However, it is also noted that the same indicative task appears in respect of the Level 3 Security Officer classification, emphasising that particular tasks cannot be viewed in isolation but need to be considered in the overall context of the work and indicative tasks provided for at each classification Level.
[26] In addition, while it is acknowledged that Corporate Protection has clearly made a genuine attempt to examine the different areas of work and to consider the standing tasks associated with each of those areas, it is possible that some of those standing tasks could be associated with other classification levels, apart from those identified by Corporate Protection. For example, in terms of the standing task being to "ensure positive interaction with visitors to site, including maintaining superior uniform standards",[24] Corporate Protection has not associated this requirement with any classification Level. However, it is noted that both Levels 2 and 3 make reference to the requirement to "exercises good interpersonal and communication skills."[25] The standing task described as "Verify induction currency for workers/Contractors and visitors pursuant to site standing orders"[26] has also been identified with a Level 1 indicative task. Again, however, it is noted that the same indicative task "provide safety induction to employees, contractors or visitors to site"[27] also appears at Level 3. The standing task "performs site inductions, pursuant to site standing orders including; creating site access cards where required; verify correct PPE is been warned prior to site entry; detail site specific hazards"[28] has also been linked to Level 1. Again, it could be encompassed within the indicative task at Level 3. It is also noted that there is a reference to programming access cards and altering the parameters of those arrangements at Level 4. The standing tasks to "advise Authorised CS Energy Site Representative should any member of Inspector of a Regulatory authority, Emergency Service (eg; QPS) or Union seek entry to any site"[29] has also been allocated to a Level 2 on the basis of the indicative task of "duties of securing, watching, guarding, protecting"[30] as directed. Arguably, this standing task could also be associated with the indicative task at Level 3 which makes reference to, in part "control of movement of persons, vehicles, stock and material at gatehouses ..."[31]
[27] Corporate Protection also acknowledges that the following standing task described as "Monitor CCTV, reporting to the Authorised CS Energy Site Representative visible changes to plant security; and unusual or dangerous activities"[32] can be said to come within the Security Officer Level 3 classification. However, it concludes on balance after reviewing all of the standing tasks that the Level 2 classification is appropriate.
[28] Mr Stannus obviously has a different view, noting that all access control duties at the Power Station are carried out at the Gatehouse. He continues to submit that this involves controlling movements and access at the Gatehouse by utilising, monitoring and operating computer-based systems requiring data input into a relatively advanced monitoring system. He continues to submit that these fall directly within the indicative tasks set out in regard to the Level 3 classification.
[29] Ms Lawton also made reference in her submissions to the Position Description attached to the employment contract provided to the Security Officers by Corporate Protection. A series of dot points detailing the items referred to in the Position Description have been set out at an earlier point in this decision. They do appear to indicate a requirement to perform work which could be said to fall under either of the work described in the Level 2 or the Level 3 Security Officer classification in the Award.
[30] It is acknowledged that some of the distinctions that need to be drawn in determining this issue are not clear cut or easy to delineate. For example, where is the line to be drawn between "general supervision" at the Level 2 classification, and "limited supervision" at Level 3? When can computer skills be said to involve a level higher than that required at Level 2? Clear-cut lines of delineation do not necessarily exist in regard to these descriptions.
[31] However, in finally determining this matter I am satisfied that one factor is of particular significance in all the circumstances. The first occasion in which the indicative tasks at each classification level make reference to work involving a Gatehouse location occurs in conjunction with the Level 3 classification. These references are included at both C.3.3 (a) and (c). Both make reference to the use of computerised systems requiring data input. They each separately refer to the control of movement and stock and material control using computerised systems.
[32] It is clear from the submissions provided to the Commission that the Security Officers are involved in other duties away from the Gatehouse. They are required to carry out regular patrols of the site. They can be involved in incident response activities. They also carry out other incidental duties. However, the submissions also make clear that the Security Officers are predominantly located in the Gatehouse during their rostered shifts for what is estimated to be around 70 percent of the Security Officers' total working time. It also is clear that they are utilising two different computer systems during this time for the purposes of monitoring and controlling movements and access to the site. I am satisfied, in conclusion, that the work being carried out by the Security Officers at the Wivenhoe Power Station site is most accurately described by the skills and competencies, and the indicative tasks, referred to in the Security Officer Level 3 classification in the Security Services Industry Award 2010. It follows that the dispute should be determined on the basis that the appropriate classification for the Security Officers working at the Power Station is the Security Officer Level 3 classification.
[2] Submissions of Wesley Stannus, received 9 June 2017, at Appendix A.
[6] Submissions of Wesley Stannus, received 9 June 2016 at 3-4.
[10] Security Services Industry Award 2010 at C.2.3(d).
[11] Security Services Industry Award 2010 at C.3.3(a).
[12] Submissions of Nahomie Lawton, received 8 June 2016 at Schedule 2.
[15] Submissions of Respondent, received 13 July 2017.
[16] Security Services Industry Award 2010 at cl 13.
[17] Security Services Industry Award 2010 at Schedule C.
[18] Security Services Industry Award 2010 at C.3.3(a).
[19] Security Services Industry Award 2010 at C.3.3(c).
[20] Submissions of Wesley Stannus, received 9 June 2017, at Appendix A.
[23] Security Services Industry Award 2010 at C.1.2(f)
[24] Submissions of Respondent, received 13 July 2017 at p 1.
[25] Security Services Industry Award 2010 at C.2.2 and C3.2.
[26] Submissions of Respondent, received 13 July 2017 at p 1.
[27] Security Services Industry Award 2010 at C.1.2(f).
[28] Submissions of Respondent, received 13 July 2017 at p 1.
[30] Security Services Industry Award 2010 at C.2.3(a).
[32] Submissions of Respondent, received 13 July 2017 at p 2.
Printed by authority of the Commonwealth Government Printer
Wesley Stannus; Nahomie Lawton; Damien Fay; Anthony Baker
CPA Group T/A Corporate Protection Australia Group Pty Ltd [2017] FWC 5275