1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Plain language re-drafting – Security
Services Industry Award 2010
(AM2016/15)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT MELBOURNE, 8 NOVEMBER 2018
4 yearly review of modern awards – plain language re-drafting – Security Services Industry
Award 2010.
[1] This decision deals with the plain language re-drafting of the Security Services
Industry Award (the Security Award).
[2] Conferences were held on 8 November 2017, 22 June 2018 and 16 August 2018 to
discuss items raised by parties in relation to the plain language exposure draft of the Security
Award (the PLED). Statements regarding the outcomes of the conferences were issued on 9
November 20171, 21 February 20182 and 29 June 2018.3 A revised PLED was published on
16 July 2018 and a draft list of outstanding items was published on 23 July 2018. Interested
parties were invited to review the revised PLED and the list of outstanding items and advise
the Commission whether there were any further issues that require determination. At the
conference on 16 August 2018 the outstanding items were discussed. After the conference
interested parties were invited4 to make submissions on ASIAL’s application to vary clause
24.10 of the Security Award. We return to that application shortly.
[3] We now turn to deal with the outstanding issues set out in the document published on
13 August 2018. It is common ground that these issues are to be determined on the
submissions previously lodged and those made at and following the August 2018 conference.
A summary of the parties’ submissions is set out at Attachment A to the revised list of
outstanding issues published on 13 August 2018.
Clause 2—definitions—relieving officer
1 [2017] FWC 5867.
2 [2018] FWC 1118.
3 [2018] FWC 3820.
4 Revised Security Award PLED, 16 July 2018.
[2018] FWCFB 6755
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-exposure-draft-security-revised-160718.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc3820.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc1118.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc5867.htm
[2018] FWCFB 6755
2
[4] As indicated at the August 2018 conference, the definition of ‘relieving officer’ in
clause 2 of the revised PLED will be amended, as follows:
‘relieving officer means an employee who, by agreement between the employer and
employee, is appointed by the employer for the purpose of relieving another security officer at
short notice’.5
[5] There will be no further amendment to clause 19.6.
Item 30—Clause 14.4—paid meal breaks
[6] Clause 21.6(a) of the current award provides as follows:
‘(a) Meal breaks
Except where it is operationally impracticable, an employee will be granted an unpaid
meal break of not less than 30 minutes where a shift exceeds five hours duration. For
the purpose of this subclause it will be operationally impractical to grant an unpaid
meal break unless the employee is permitted to leave the client’s premises or be
unavailable for work during the period of the meal break.’
[7] Clause 14.4 of the PLED provides as follows:
‘14.4 However, the meal break must be a paid meal break if the employee is not permitted
to leave the workplace, or to be unavailable for work, during the break.’
[8] ABI submits that there is no equivalent to clause 14.4 of the PLED in the current
award and on that basis clause 14.4 should be deleted. In reply, United Voice submits that
clause 14.4 retains the meaning of clause 21.6(a) of the current award.6
[9] No further submissions were received in relation to this matter.
[10] We agree with ABI. The current award makes no provision for a paid meal break in
circumstances where it is operationally impracticable for the employee to be granted an
unpaid meal break. Separate provision is made for paid meal breaks, in clause 21.6(b) of the
current award. We will delete clause 14.4 of the PLED.
[11] If United Voice wishes to pursue a substantive variation to clause 21.6(a) of the
current award it should file an application to vary by 4pm on Friday 30 November 2018.
Item 32—Clause 14.5—breaks between work periods
[12] Item 32 relates to breaks between work periods.
5 Transcript, 16 August 2018, PN 45.
6 UV reply submission, 20 October 2017 at para 30.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-89-sub-reply-uv-201017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20180816-am201615-89.htm
[2018] FWCFB 6755
3
[13] Section 21.3 of the current award provides as follows:
‘21.3 Break between successive shifts
Each ordinary time shift must be separated from any subsequent ordinary time shift by
a minimum break of not less than eight hours.’
[14] Clause 14.5(a) of the PLED reads as follows:
‘14.5 Breaks between work periods
(a) An employee must have a minimum break of 8 hours between finishing work on one shift
of ordinary hours (including any overtime worked immediately after it) and starting work
on the next shift of ordinary hours (including any overtime worked immediately before
it).’
[15] ASIAL submits that clause 21.3 of the current award is preferable to the wording in
clause 14.5 of the PLED.7 In its reply submission of 20 October 2017 United Voice indicated
a preference for the plain language draft. At the 8 November 2017 conference United Voice
clarified that it did not ‘have a particularly strong position’ on the matter.8
[16] We are not persuaded to vary clause 14.5(a) of the PLED in the manner proposed by
ASIAL. Clause 14.5 of the PLED deals with the matters currently dealt with in clauses 21.3
and 23.5 of the award. Clause 14.5(a) is consistent with the minimum break requirements in
clauses 21.3 and 23.5(a) of the current award.
Item 37—Clause 19.1—allowances
[17] Clause 15.1 of the current award provides as follows:
‘15.1 Allowance rates
Employers must pay to an employee such allowances as the employee is entitled to under this
clause at the following rates (which are expressed as a percentage of the standard rate being
the minimum weekly wage for the Security Officer Level 3 classification):’
[18] The equivalent provision in the PLED, clause 19.1, provides as follows:
“Clause 19 gives employees an entitlement to monetary allowances of specified kinds in
specified circumstances.”
[19] UV submits that the PLED alters the language regarding the payment of allowances9
and that clause 15.1 of the current Security Award is clearer and should be retained. In
7 ASIAL submission, 6 October 2018 at para 18.
8 Transcript 8 November 2017 at paragraphs [380] to [385].
9 UV submission, 6 October 2017 at paras 29-32.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-sub-uv-061017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-89-sub-asial-061017.pdf
[2018] FWCFB 6755
4
particular, United Voice submits that the phrase ‘employers must pay to an employee such
allowances’ clearly identifies that there is an obligation on the employer to pay.10
[20] The terms of clause 19.1 of the PLED are consistent with the language used in all
plain language exposure drafts. We have decided to retain clause 19.1 of the revised PLED. It
is clear that clause 19 provides employees with an entitlement to the specified allowances in
specified circumstances. An obligation upon the employer to make such a payment is a
concomitant of such an entitlement.
Item 55—Clause 23.4(e)—Payment for public holidays falling in annual leave
shutdown period
[21] In the June 2018 Statement the Commission indicated this issue would be referred to
the Plain Language Expert (the Expert) for comment.11 The Expert proposed 2 options to
resolve the issue raised by United Voice.12
[22] At the August 2018 conference the parties expressed a preference for Option 1, with a
minor amendment (in red below):
(e) An employee must be taken not to be on leave on any public holiday that falls during a
temporary close down period. The employer is to pay the employee for the public holiday as
the Award requires.
Example
An employer has arranged a temporary close down period that includes New
Year’s Day.
For each employee who would normally have worked on the day that is New
Year’s Day, the employee must pay them their normal rate of pay for that day
as though:
it were not a public holiday; and
they had worked that day.
So if on the day that is New Year’s Day the employee would have worked 8 hours at
their ordinary hourly rate and 2 hours at 150% of their ordinary hourly rate, then they
are to be paid for that same number of hours and at those same rates.
[23] We will adopt Option 1, with the proposed amendment, and vary the PLED
accordingly.
[24] We now turn to ASIAL’s application to vary clause 24.10.
10UV submission, 6 October 2017 at para 31.
11 [2018] FWCFB 3820 at [13].
12 Revised list of outstanding items, 13 August 2018.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-revised-list-outstanding-issues-security-130818.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc3820.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-sub-uv-061017.pdf
[2018] FWCFB 6755
5
[25] Clause 24.10 of the Security Award provides as follows:
‘24.10 Payment of accrued annual leave on termination
Where an employee is entitled to a payment on termination of employment as provided in
s.90(2) of the Act, the employer must also pay to the employee an amount calculated in
accordance with clause 24.6(a). The employer must also pay to the employee a loading of
17.5% in accordance with clause 24.6(b) unless the employee has been dismissed for
misconduct.’
[26] Clause 24.6 of the current award provides:
‘24.6 Payment for annual leave
Before the start of the employee’s annual leave the employer must pay the employee in respect
of the period of such leave the greater of:
(a) the amount the employee would have earned during the period of leave for
working their normal hours, exclusive of overtime, had they not been on leave; and
(b) the employee’s ordinary time rate specified in clause 14.1, together with, where
applicable, the leading hand allowance, relieving officer’s allowance and first aid
allowance prescribed in clause 15.1(a) respectively, plus a loading of 17.5%.’
[27] ASIAL’s proposes to replace clause 24.10 with the following:13
‘24.10 Payment of accrued annual leave on termination
Where an employee is entitled to a payment on termination of employment the employer must
pay to the employee an amount calculated in accordance with clause 24.6.’
[28] ASIAL submits that clause 24.10 confers a greater benefit upon employees on
termination of employment than if they had taken leave during the course of their
employment. Clause 24.10 currently requires an employer to pay a 17.5% loading upon
termination in addition to what the employee would have received had they taken annual
leave during their employment.
[29] ASIAL asserts that clause 24.10 amounts to a ‘drafting error’ as it provides for the
payment of two loadings upon termination of employment, that it fails to meet the Modern
Awards objective, and referred to various pre-reform awards in support of their position.14
[30] ABI supported ASIAL’s application submitting that ‘there is force to ASIAL’s
contention that the inclusion of the additional payment under clause 24.10 is a drafting error’
and, further, even if it cannot be established that there is a drafting error in clause 24.10 there
are other strong merit bases for granting the ASIAL application.15 ABI submits that ASIAL’s
application meets the modern awards objective by:
13 ASIAL submission, 25 June 2018 at pp. 4-7.
14 See p3 and Attachments E-F of ASIAL submission 25 June 2018, pp.14-15.
15 ABI submission, 18 September 2018 at para 3.8.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-89-sub-abinswbc-180918.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-sub-asial-250618.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-sub-asial-250618.pdf
[2018] FWCFB 6755
6
‘(a) removing an incentive for employees to not take any time off in order to receive more
money when their employment ceases with that employer;
(b) simplifying the way in which an employer is required to calculate annual Leave
payments, whether it be during the course of employment or upon termination; and
(c) removing an unnecessary regulatory burden on employers by having a two-tier
payment system for annual leave.’16
[31] In its reply submission filed on 7 September 2018, United Voice opposed the ASIAL
application. In short, United Voice rejected the characterisation by ASIAL that clause 24.10
contains a drafting error, and asserts that the clause provides a specific entitlement in respect
of annual leave for employees who have not been dismissed for misconduct.
[32] We turn first to the relevant award history.
[33] The AIRC published an exposure draft for the Security Award on 12 September 2018.
Clause 23.7 of that Exposure Draft was in similar terms to the Award that was ultimately
made by the AIRC (now clause 24.10). Clause 23.7 of the 2008 Exposure Draft provided as
follows:
‘23.7 Payment of accrued annual leave on termination
Where an employee is entitled to a payment on termination of employment pursuant to s.35(2)
of the NES, the employer must also pay to the employee an amount calculated in accordance
with clause 23.4(a). The employer must also pay to the employee a loading of 17.5% in
accordance with clause 23.4(b) unless the employee has been dismissed for misconduct.’17
[34] The Statement18 handed down by the AIRC at the time of publishing the Exposure
Draft stated that the wages had been taken from the Security Industry (New South Wales)
Award 1998, the Statement did not make it clear where the other terms and conditions had
derived from. Clause 23.7 was not the subject of any explicit consideration by the AIRC in
any of the decisions or statements made in the course of making the Security Award.19
[35] In a decision20 issued on 22 December 2009 the AIRC granted an ASIAL application
to vary the Security Award to insert what is now subclause 24.6 (set out above at [26]). The
previous subclause had provided that a 17.5% annual leave loading be paid to all employees
on ‘the amount the employee would have earned for working their normal hours, exclusive of
overtime, had they not been on leave’. In granting the variation the Full Bench said:
‘We accept ASIAL’s submission that this does not reflect the standard prevailing in most of the
industry. Relevant instruments generally provide that for a period of annual leave an employee
should receive either the pay they would have earned for working ordinary hours or the
16 ABI submission, 18 September 2018 at para 4.4.
17 Security Services Industry Award 2010 – exposure draft, 12 September 2008.
18 [2008] AIRCFB 717.
19 See [2008] AIRCFB 717; [2008] AIRC 1000; [2009] AIRCFB 800.
20 [2009] AIRCFB 963.
http://www.airc.gov.au/awardmod/databases/security/Exposure/Security_exposure_draft.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-89-sub-abinswbc-180918.pdf
[2018] FWCFB 6755
7
ordinary time rate plus certain specified allowances and a loading of 17.5%, whichever is the
greater.’21
[36] As noted in ASIAL's application, one of the pre-reform awards, Security Industry
(New South Wales) Award 1998 states that in relation to payment in lieu of annual leave on
termination; ‘where the employment of a permanent employee is terminated for any reason by
either party ...’22 is to be calculated in accordance with clause 25.3 of that Award. Clause 25.3
of the pre-reform Award sets out the entitlement now included in clause 24.6 of the Security
Award. Clauses 25.3 and 25.4 of the pre-reform Award mirror the way in which the Security
Award would operate if ASIAL’s application was implemented.
[37] No party has drawn our attention to any clause in similar terms to clause 24.10 in any
of the relevant pre-reform instruments. A review of the most relevant pre-reform awards does
not reveal any term which is similar to clause 24.10 of the Security Award. The relevant pre-
reform awards are:
Security Employees (A.C.T.) Award, 1998 (clause 8.1.3(a))
Security Employees (Victoria) Award 1998 (clause 27.4.3)
Security Industry (Contractors) Award – State 2004 (QLD) (clause 7.1.3)
Security Industry (New South Wales) Award 1999 (clause 25.4)
Security Industry (Northern Territory) Award 2002 (clause 27.12.3)
Security Industry (State) Award (clause 25.4)
Security Industry Award (TAS) (clause 9(e))
Security Officers (Western Australia) Award 2002 (clause 19.3.1)
Security Officers’ Award (SA) (clause 7.1.10)
[38] The extent of the arbitral consideration of annual leave payments is limited and was
recently canvassed in the 4 yearly review of modern awards – Payment of Wages decision23
(the Payment of Wages decision). In that decision the Full Bench noted that the ‘norm’ in
respect of annual leave payments did not involve the payment of both the 17.5% leave loading
and the applicable shift rate.24 The Full Bench went on to vary three modern awards to ensure
that employees do not receive both a shift loading and an annual leave loading during a period
of annual leave, rather, they will receive whichever is the greater.25 The Payment of Wages
decision is consistent with the outcome sought by ASIAL in the matter before us.
21 Ibid at [19].
22 Security Industry (New South Wales) Award 1998, clause 25.4.
23 [2016] FWCFB 8463.
24 Ibid at [191]-[192].
25 Ibid at [195]-[197].
[2018] FWCFB 6755
8
[39] The operation of clause 24.10 of the Security Award has an unusual result: an
employee is entitled to receive a greater payment on termination in respect of accrued annual
leave than they would have been entitled to had they taken the accrued annual leave during
their period of employment. As ABI submits, this ‘two-tier’ rate of payment for annual leave
creates a disincentive for employees to take annual leave whilst employed as they can save
their leave until termination knowing that it will be paid out at a higher rate. Our attention was
not drawn to any other modern award which contained a provision to similar effect.
[40] We are satisfied that the existing term (clause 24.10) lacks merit and is not ‘fair’
within the meaning of the modern awards objective. In arriving at that conclusion we have
taken into account the matters set out at s.134(1)(a) to (h), insofar as they are relevant. We
accept that employees covered by the Security Award are likely to be ‘low paid’ within the
meaning of s.134(1)(a) and that the variation proposed by ASIAL will diminish the capacity
of those employees to meet their needs, though the impact will be limited as it will only arise
when the employees receive an annual leave payment upon the termination of their
employment. The variation proposed will also reduce employment costs (s.134(1)(f)). We are
satisfied that the variation of the award in the manner proposed by ASIAL is necessary to
ensure that the award achieves the modern awards objective. We will vary the award and the
PLED in the manner proposed by ASIAL.
Next steps
[41] A further revised exposure draft reflecting this decision and recent variations to the
Security Award will be published shortly.
[42] This decision finalises the plain language redrafting of the Security Award subject to
the determination of any substantive claims to vary the award and the finalisation of a number
of common issues affecting all, or most, modern awards.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR701967
