DECISION

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

Angus Hibbins
(AM2019/11)

Application to vary a modern award.

[1] Mr Angus Hibbins (the Applicant) has made an application to the Fair Work Commission (Commission) pursuant to s.158 of the Fair Work Act 2009 (FW Act) to vary the Security Services Industry Award 2010 1 (SSI Award). The Applicant seeks that the SSI Award be varied to include a “[h]ospital security officer” classification with rates of pay equivalent to a Security Officer Level 4 or Security Officer Level 5.

[2] The application was posted on the Commission’s website along with the notice of listing and directions for any interested party to file submissions. In response The Australian Industry Group (AiG) and the Australian Security Industry Association Limited (ASIAL) filed written submissions and indicated they wished to be heard on the application.

[3] The Applicant, ASIAL and AiG appeared at the hearing and provided submissions supplementary to that provided in writing.

The application

[4] The application seeks to insert into the SSI Award a two level “[h]ospital security officer” classification based on the security officer classifications found in the SSI Award. The classification would apply to a security officer working in a public hospital or mental health facility.

[5] The classification structure the Applicant seeks to have added to the SSI Award as the Commission understands it would be as set out in the following table with the Hospital Security Officer Level 1 equivalent to a Security Officer Level 4 and the Hospital Security Officer Level 2 equivalent to a Security Officer Level 5:

[6] Note that the rates of pay above are those in the SSI Award Level 4 and Level 5 at the time the application was made. For the reasons given below I do not need to resolve the weekly rate of pay.

[7] Whilst it was not raised specifically in the application by the Applicant the Commissioner assumes that specific position classification descriptors relevant to public hospitals and/or mental health facilities would need to be included in Schedule C —Classifications to the SSI Award. No detail however was provided in the application.

Submissions

[8] The Applicant has worked in the security industry for 12 years with the last three years spent working in hospitals. He is also close to completing his bachelor degree in nursing.

[9] The Applicant said that he has observed first-hand the effect on Security Officers of working in hospital and mental health facilities. He said that Security Officers are employed by hospitals and in mental health facilities to assist in ensuring the safety of staff. This, at times, requires Security Officers to restrain patients who present in an agitated state, under the influence of drugs or alcohol, carrying dangerous weapons etc. At other times patients are admitted under s.351 of the mental Health Act 2014 (Vic). The Applicant said that there are circumstances where Security Officers are required to physically restrain patients to ensure the safety of staff.

[10] The Applicant said that in these circumstances and others where security staff are called they cannot just behave as some “muscle” but must be alert to the needs of patients. These needs, he said, are more complex than a Security Officer might face working in security in a building lobby. He did agree that a Security Officer may face similar demands working at a night club or at large public gatherings (such as sports events).

[11] In response to the submissions of AiG and ASIAL the Applicant said that he does not suggest that there is a shortage of security guards but rather that security staff working in public hospitals and mental health facilities require special skills that are not necessarily required in other settings.

[12] ASIAL is opposed to the application. It submitted inter alia:

•  There was no objective evidence to support the claims;

•  The application was vague and lacking in detail;

•  The claim required a work value case to be put and no evidence to this effect was provided;

•  The proposal does not meet the modern awards objective [s.134 of FW Act];

•  The proposal presents a significant departure from the classification structure of Schedule C to the SSI Award which is based on the activities performed by security officers to determine classification levels and not on the industry in which the security officer works. Further, the current classification structure in the SSI Award is sufficient to determine the appropriate classification for security officers regardless of industry;

•  The SSI Award is an industry award and not an occupational award;

•  The incidents described by the Applicant are not isolated to security officers working in hospitals or mental health facilities;

•  Security officers in the private sector perform basic functions of watch, guard or protect etc.

•  16 modern awards contain a classification for security officer including the Health Professionals and Support Services Award 2010 2.

[13] Further, ASIAL said that the Applicant relies on the frequency of particular types of incidents in the hospital system but that this is not a sound basis on which to determine classifications within the SSI Award.

[14] AiG submitted that it is unclear precisely the terms of the variation sought to be made to the SSI Award by the application whilst acknowledging the difficulties for unrepresented parties in navigating the means of varying a modern award.

[15] The AiG submitted that:

•  There are no details as to the definition for the proposed classifications;

•  The Award rate for the classifications is not clear;

•  Whilst the originating application referred to allowances none are detailed.

[16] AiG submitted that the lack of detail suggests the application should be dismissed but, if the Commission is not inclined to do so, the application should be refused because it does not meet the modern awards objective. In particular AiG submitted that:

•  There is no probative evidence before the Commission of the risks associated with security duties in a hospital or mental health facility referred to by the Applicant;

•  The duties of security officers in hospital or mental health facilities may well vary from those listed in the application;

•  The SSI Award already provides for a wide range of classifications from Level 1 to Level 5 with a high degree of flexibility in the classification descriptors in Schedule C —Classification to the SSI Award;

[17] The AiG submitted that the Applicant has failed to demonstrate how the variation he seeks would meet the modern awards objection.

[18] Both AiG and ASIAL submitted that the application should be dismissed.

Consideration

[19] Section 134 of the FW Act sets out the modern awards objective:

134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).

[20] The application currently before the Commission is an application to vary a modern award pursuant to s.158 of the FW Act. Section 158 of the FW Act falls within Part 2-3 of the FW Act as does s.134. Section 134 of the FW Act therefore applies to the exercise of the Commission’s powers under s.158. It is therefore necessary to consider if the variation sought by the Applicant meets the modern awards objective in s.134 of the FW Act.

[21] In the 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues decision 3 the Full Bench of the Commission said:

[31] The modern awards objective is directed at ensuring that modern awards, together with the NES, provide a ‘fair and relevant minimum safety net of terms and conditions’ taking into account the particular considerations identified in paragraphs 134(1)(a) to (h) (the s.134 considerations). The objective is very broadly expressed.  The obligation to take into account the matters set out in paragraphs 134(1)(a) to (h) means that each of these matters must be treated as a matter of significance in the decision making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.”

[32] No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[33] There is a degree of tension between some of the s.134(1) considerations. The Commission’s task is to balance the various s.134(1) considerations and ensure that modern awards provide a fair and relevant minimum safety net of terms and conditions. The need to balance the competing considerations in s.134(1) and the diversity in the characteristics of the employers and employees covered by different modern awards means that the application of the modern awards objective may result in different outcomes between different modern awards.

[34] Given the broadly expressed nature of the modern awards objective and the range of considerations which the Commission must take into account there may be no one set of provisions in a particular award which can be said to provide a fair and relevant safety net of terms and conditions. Different combinations or permutations of provisions may meet the modern awards objective.

[Footnotes omitted]

[22] In the Security Services Industry Award four yearly review decision 4 the Full Bench of the Commission said:

[7] The following general observation in a preliminary Full Bench decision about the Review is relevant to the relationship between the decision to create a modern award, the historical context and the Review:

“[60] … 3. The Review is broader in scope than the Transitional Review of modern awards completed in 2013. The Commission is obliged to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net taking into account, among other things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances. Some proposed changes may be self evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation. In conducting the Review the Commission will also have regard to the historical context applicable to each modern award and will take into account previous decisions relevant to any contested issue. The particular context in which those decisions were made will also need to be considered. Previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so. The Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made.”

[8] While this may be the first opportunity to seek significant changes to the terms of modern awards, a substantive case for change is nevertheless required. The more significant the change, in terms of impact or a lengthy history of particular award provisions, the more detailed the case must be. Variations to awards have rarely been made merely on the basis of bare requests or strongly contested submissions. In order to found a case for an award variation it is usually necessary to advance detailed evidence of the operation of the award, the impact of the current provisions on employers and employees covered by it and the likely impact of the proposed changes. Such evidence should be combined with sound and balanced reasoning supporting a change. Ultimately the Commission must assess the evidence and submissions against the statutory tests set out above, principally whether the award provides a fair and relevant minimum safety net of terms and conditions and whether the proposed variations are necessary to achieve the modern awards objective. These tests encompass many traditional merit considerations regarding proposed award variations.

[Footnote omitted, underlining added]

[23] In this case the Applicant has not substantially addressed any of the matters set out in s.134 of the FW Act. The changes sought by the Applicant to the SSI Award are substantial in that he seeks to introduce new classifications based on what he believes to be necessary in one particular sector of the general security industry. This change is a substantial change to the SSI Award which is a general industry award.

[24] Further, the Applicant has not explained why the classifications he seeks to introduce in the SSI Award would not be better inserted into the relevant industry award covering employees in the health/mental health sectors.

[25] The Applicant relied on his personal experiences to justify the variation to the SSI Award. I do not doubt that these experiences are real for the Applicant (although they have not been tested at a general level) but they cannot form the basis on which an award should be varied. I do not question the Applicant’s motivation in making the application to vary the SSI Award. He is sincere in his belief for the need for change in the SSI Award. Again, however, this does not provide the basis for varying the SSI Award.

[26] I acknowledge that the process for seeking to vary a modern award is not necessarily easy to navigate, particularly for an unrepresented individual. The procedures and requirements for such variation however ensure integrity in the award system in that any proposal for a variation is properly considered within an established framework (the modern awards objective). The matters that form the modern awards objective will seldom be met by the experiences of one individual although this is not to say they will never be met in such circumstances.

[27] In this matter the required evidence has not been produced and the modern awards objective not met. I acknowledge the issues and concerns of the Applicant but this does not support the making of the variation to the SSI Award as sought in the application.

Conclusion

[28] The application to vary the Security Services Industry Award 2010 is therefore dismissed.

COMMISSIONER

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Appearances:

A. Hibbins on his own behalf.

C Delany for Australian Security Industry Association Limited.

H. Harrington for The Australian Industry Group.

Hearing details:

2019.

Melbourne and Sydney (video hearing).

September 26.

 1   MA000016.

 2   MA000027.

 3   [2014] FWCFB 1788.

 4   [2015] FWCFB 620.