[2019] FWC 4415

FAIR WORK COMMISSION

DECISION

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

Application by Chapman
(AM2018/6)

CORRECTIONS AND DETENTION (PRIVATE SECTOR) AWARD 2010

[MA000110]

COMMISSIONER BISSETT

MELBOURNE, 3 JULY 2019

Application to vary a modern award.

[1] Ms Vonnie Chapman (the Applicant) has made an application pursuant to s.158 of the Fair Work Act 2009 (FW Act) to vary the Corrections and Detention (Private Sector) Award 2010 1 (Corrections and Detention Award). The Applicant seeks that the Corrections and Detention Award be varied to include an additional set of pay rates to recognise the work performed by employees to whom the award applies.

[2] The application has been subject to several conferences before the Fair Work Commission (Commission). Unfortunately it was not possible to find a resolution to the issues raised by the Applicant. The matter was therefore subject to a hearing. The application was placed on the Commission’s website along with the notice of listing of hearing and directions for any interested party to file submissions and or appear at the hearing. In response the Australian Industry Group (AiG) filed written submissions and indicated that it wished to be heard on the matter.

[3] Both the Applicant and AiG appeared at the hearing. Following the hearing AiG indicated that it had some further material it wished to file in response to matters raised at the hearing to which it could not respond at the time. As a result of this further time was given to the Applicant and AiG to file final material. No other party participated in the hearing or filed material.

The application

[4] The application seeks to insert into the Corrections and Detention Award a five level court security officer classification based on the security officer classifications found in the Security Services Industry Award 2010 2 (SSI Award). Further, the application seeks to include the allowance for a court security supervisor based on that in the SSI Award.

[5] The classification structure the Applicant seeks to have added to the Corrections and Detention Award is as follows:

Employee Classification		Minimum Weekly rate $
Security Officer Level 1		808.00
Security Officer Level 2		831.20
Security Officer Level 3		845.30
Security Officer Level 4		859.40
Security Officer Level 5		887.20

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

[7] The supervisor’s allowance the application seeks to include in the Corrections and Detention Award is also taken form the SSI Award:

Supervision:
1–5 employees	per week	4.22
6–10 employees	per week	4.87
11–20 employees	per week	6.32
over 20 employees	per week	7.46

Submissions

[8] The Corrections and Detention Award applies in the private sector corrections and detention industry which is defined as:

the private operation of correctional facilities, custody centres, court custody services and detention facilities, and the private operation of prisoner or detainee facilities or services, including the provision of security escort services to and from correctional facilities, courts and/or hospitals carried out by private operators.

[9] The Applicant is a security officer. She submits that a more fulsome security officer classification is required in the Corrections and Detention Award to reflect the reality of work undertaken in the court specifically in security and more particularly in Western Australia where she works. She says that if her employer is contracted to provide security work in a court where that work is covered by the Corrections and Detention Award, security staff so contracted are paid under the Corrections and Detention Award. She says, however that the work performed is security officer work, the same as that performed under the SSI Award. The Applicant submits that the rates of pay under the SSI Award (which covers non court-based work) is higher than that paid under the Corrections and Detention Award. The Applicant says that security staff are therefore paid less for doing essentially the same (security) work under the Corrections and Detention Award than the SSI Award.

[10] The Applicant considers that this disparity is best resolved by the inclusion of the security officer classification structure from the SSI Award in the Corrections and Detention Award. This, she submits, would provide equality in pay for work that is essentially the same, regardless of the award that applies to that work.

[11] The Applicant says that the current award structures covering court and security work are outdated. She seeks a decision from the Commission to resolve the injustice she sees in the equality in work performed but disparity in pay received for that work.

[12] AiG made an application pursuant to s.587 of the FW Act that I dismiss the application on the grounds that it has no reasonable prospects of success. In particular it says that the Applicant did not file materials in reply and/or in support of her application as requested by the Commission. It said that her application was groundless and should be dismissed.

[13] In its final written submissions AiG said that the Corrections and Detention Award and the SSI Award have distinct and different coverage. Further, it submits that while the Applicant has sought to reflect the five level security officer classification in the Corrections and Detention Award she has said nothing of other conditions of employment that apply to security officers under the SSI Award and whether these, too, should be reflected in the Corrections and Detention Award. Further, it says that the Applicant has failed to file relevant, probative evidence or material in support of her application.

[14] AiG submits that while this application has been made ostensibly outside the four yearly review process the observations of the Full Bench in the 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues decision 3 (Preliminary Issues decision) remain relevant to the application before me and provide guidance on the approach the Commission should take to the matter. AiG also submits that I should have regard to the decision of the Full Bench of the Commission in Security Services Industry Award 2010.4

Consideration

[15] I declined the application of AiG to dismiss the Applicant’s application out of hand. Whilst, ultimately, I have not granted the application, I did not consider it appropriate for the matter to be dismissed under s.587 of the FW Act.

[16] 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

(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).

[17] 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.

[18] In the Preliminary Jurisdiction decision 5 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]

[19] In the Security Services Industry Award four yearly review decision 6 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.

[Footnotes omitted, underlining added]

[20] In this case the Applicant has not addressed any of the matters set out in s.134 of the FW Act, despite advice from the Commission during the course of various conferences about the application that it was necessary that this be addressed if the application was to have any chance of success. The Applicant has failed to address the Commission in particular as to why the rates of pay applicable in the private security industry would form the appropriate safety net in an industry that has little, if any, similarities. Further, she has not addressed how the inclusion of the classification and grades in the Corrections and Detention Award would encourage collective bargaining in either industry.

[21] The changes sought by the Applicant to the Corrections and Detention Award are substantive. She seeks the inclusion of a number of new levels for a classification currently not in the Award and the addition of a supervisor’s allowance. However, beyond the Applicant’s anecdotal experience there is no objective evidence that the matters and concerns she raises do, in fact, exist.

[22] Whilst the Applicant has provided a number of documents to the Commission none of these go directly to the matters the Commission must consider in deciding whether to vary an award.

[23] If the issues identified by the Applicant are correct I have some sympathy with the position she finds herself in. However, that there may be disparities between seemingly similar work is not, of itself, grounds, for varying the Corrections and Detention Award as sought. A much more rigorous application that engages with those matters under s.134 of the FW Act and which provides probative evidence of the issues to be addressed under s.134 of the FW Act is required.

[24] The Applicant says that the Commission should give a voice to employees in their working environment. That is not the most accurate expression of the role of the Commission. Rather, in this case, it is to hear from all parties with a legitimate interest in a matter, consider the evidence placed before the Commission and make a decision based on that evidence and in accordance with the requirements of the FW Act.

[25] In this matter the required evidence has not been produced. I acknowledge the issues and concerns of the Applicant but this does not support the making of the variation to the Corrections and Detention Award as sought in the application.