DECISION

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

Christian Gavin
(AM2018/27)

Application to vary a modern award – Security Services Industry Award 2010.

[1] Mr Christian Gavin (the applicant) has made an application pursuant to s.158 of the Fair Work Act 2009 (FW Act) to vary the Security Services Industry Award 2010 (the Award) 1 in accordance with s.157 of the FW Act. The applicant seeks to vary the terms in the Award to define the items that constitute a uniform for the purpose of clause 15.11(b) - Uniform. Mr Gavin is entitled to make the application as he was at the time of his application an employee covered by the Award.2

[2] The Commission as presently constituted has been authorised pursuant to ss.582 and 616(3D) of the FW Act to deal with the application.

[3] Clause 15.11(b) of the Award states as follows:

“(b) Uniform

Where an employee is required to wear a uniform the employer must provide the employee with the uniform or reimburse the employee for the cost of the uniform.”

[4] The Award does not currently contain a definition of the word ‘uniform’.

[5] Mr Gavin is employed by MSS Security Pty Ltd as a security guard and is a member of the union known as United Voice 3. Mr Gavin’s initial application did not provide the wording sought in any variation, however an amended application form4 sought for the current sub clause 15.11(b) to be deleted and replaced with the following wording:

“(b) Uniform

Where an employee is required to wear a uniform including boots or other required footwear, as part of the employer’s uniform policy, code of dress or corporate clothing or otherwise, the employer must provide the employee with those items specified by the employer’s uniform policy, code of dress or corporate clothing or reimburse the employee for the cost of purchasing the items.

A uniform will include but is not limited to shirt or blouse, pants or dress and shoes or boots.”

Background

[6] Directions were issued in relation to the application on 8 July 2019, 5 directing the applicant and any persons wishing to make a submission in support of the application to file written submissions with the Commission by 30 July 2019. The Directions also required any party opposed to the application to file submissions in response to the application by 20 August 2019.

[7] The applicant filed his amended application, a statement with supporting material and submissions (on 28 July 2019). 6

[8] A submission in support of the application was received from United Voice. 7

[9] The applicant’s statement includes an extract from the ‘MSS Group of Companies – Employee Standing Instructions - 2016’ (MSS Standing Instructions). A copy of the MSS Standing Instructions referred to in the applicant’s statement, as well as a series of emails between the applicant and managers at MSS Security were included as Annexures to the applicant’s statement.

[10] Mr Gavin was requested by the Commission to advise whether he had permission from his employer for the internal emails and documents to be made public.

[11] Subsequently United Voice wrote to the Commission contending that the applicant should not be required by the Commission to obtain the permission of MSS Security to use extracts from emails and the MSS Standing Instructions. 8 Redacted copies of the applicant’s statement and supporting material were published on the Commission’s website.

[12] Submissions opposing the application were received from:

•  Australian Security Industry Association Limited (ASIAL) 9

•  MSS Security Pty Ltd (MSS Security) 10

•  Australian Industry Group (Ai Group) 11

[13] A hearing was held on 19 September 2019 (September 2019 hearing).

[14] Following the hearing, a further submission was filed by Ai Group. 12 United Voice filed a submission in reply to Ai Group’s further submission.13

Submissions

Applicant

[15] The applicant states that he works for MSS Security as a Security Officer Level 3 under the Award. He states that the MSS Standing Instructions specify that ‘Security Officers must wear black leather shoes with non-skid soles’ and that MSS Security indicated it would not reimburse him for the cost of these shoes. 14 He also states that he was told that the reason for this is that shoes are not part of the uniform but part of the ‘Dress Code’.

[16] The applicant states that clause 15.11(b) of the Award, as indicated above, should be deleted and that a new clause 15.11(b) should be inserted as reflected above.

[17] In his amended application, Mr Gavin states at 2.3 under the heading What are the grounds being relied on?

“1. Under current Security Industry Award there is no definition of what a uniform is or what items make a uniform. By including the words “uniform policy, code of dress or a corporate clothing” and “A uniform will include but is not limited to shirt or blouse, pants or dress and shoes or boots” there is not a need to identify every individual items of clothing.

2. Many employers have a dress code or uniform policy but this is not reflected in the Security Industry Award. Items of clothing with the company’s logo or insignia are almost universally recognized as forming parts of the uniform. But unmarked items such as pants and shoes are not.

3. The variation will bring the Security Industry Award into line with many other Awards that already specify what clothing is covered under their industry.

[…]

4. By amending clause 15.11 of the Security Industry Award it does not go against any of the Modern Award Objectives.” 15

[18] In relation to his third point, the applicant referred to extracts from the Airport Employees Award 2010, Gardening and Landscaping Services Award 2010, Hospitality Industry (General) Award 2010, Marine Towage Award 2010 and Passenger Vehicle Transportation Award 2010.

United Voice

[19] United Voice submits that the variation sought by the Applicant is necessary to meet the modern awards objective.

[20] In relation to s.134(1)(a) - Relative living standards and the needs of the low paid; United Voice submits that the majority of employees covered by the Award can be regarded as low paid. It submits that the variation would reduce work-related expenses for such employees, noting that the cost of purchasing footwear required is not insignificant for them. It also contends that low paid employees should not bear the cost of safety footwear.

[21] In relation to s.134(1)(c) - The need to promote social inclusion through increased workforce participation; United Voice submits that the variation would reduce an upfront cost which may otherwise act as a barrier to obtaining employment, especially for the low paid and unemployed.

[22] United Voice submits that s.134(1)(f) - The likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; should not be taken to count against the variation being made, as where employers do not currently provide uniform items the cost of providing appropriate footwear or reimbursing employees for the footwear is likely to be minimal.

[23] In relation to s.134(1)(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; United Voice submits that the Award leaves open the possibility of disputes in relation to the meaning of ‘uniform’. It contends that the inclusion of a definition of the word uniform would remove perceived ambiguity and ensure the Award is simpler and easier to understand.

[24] In reply to Ai Group’s further submission that any definition of ‘uniform’ should specifically exclude ‘personal protective equipment’, United Voice submits that it does not view regulation 44 of the Model Work Health and Safety Regulations as being inconsistent with a modern award requiring an employer to provide or reimburse for the cost of uniforms which may include some protective clothing. United Voice submits that clause 15.4(a) of the Gardening and Landscaping Services Award 2010, clause 21.3 of the Airport Employees Award 2010 and clause 15.2(c) of the Children’s Services Award 2010 provide for protective clothing to be provided for or reimbursed within the uniform allowance. It also submits that there may be recourse in respect of the provision of safety items under work health and safety regulations but where an employer directs an employee to wear particular items as part of a uniform these items should be provided for or reimbursed under the Award.

[25] In its reply submission United Voice also states that ultimately the employer determines the uniform, and it is appropriate that any items the employer requires the employee to wear as part of a uniform are provided for or reimbursed. It contends that there is no legitimate reason to specifically exclude ‘personal protective equipment’ from clause 15.11 of the Award.

Australian Security Industry Association Limited

[26] ASIAL submits that the proposed variation is not necessary and is not an appropriate resolution to what it considers to be a dispute between the applicant and his employer regarding the required footwear. It submits that the matter of what constitutes a ‘uniform’ under the Award has not previously been contentious and there is no ambiguity requiring an amendment to clause 15.11(b).

[27] ASIAL submits that the proposed variation would pose a significant extra cost of employment and have a significant impact on business. It is stated that the cost to employers of providing footwear to employees in the private security industry ‘could be in the vicinity of $15 million’. It is submitted that the Award properly reflects the intention of the parties in its drafting and making and that the variation would create an undue regulatory burden on the security industry.

[28] ASIAL submits that the type of clothing required to be worn in the security industry is diverse and it would be impossible to implement a definition of ‘uniform’ without causing confusion and further disputes.

[29] ASIAL proposes that any variation to clause 15.11(b) should reflect clause 12.2 of the Security Industry (New South Wales) Award 1999 which states:

“Where an employer requires as (sic) employee to wear a uniform, the employer must reimburse the employee for the cost of such uniform. This clause does not apply if the employer elects to provide the uniform at no cost to the employee. Employees will be required to provide their own black shoes.” 16 (emphasis added)

MSS Security

[30] MSS Security, Mr Gavin’s employer submitted that the wording of clause 15.11(b) should remain unaltered. It submits that it was not intended that the Award specify particular uniform items.

[31] MSS Security submits that a number of the modern awards cited in the applicant’s submissions refer to ‘special’ or ‘protective’ clothing required by workplace health and safety legislation. It submits that black shoes are not an extraordinary, special or protective item of clothing or footwear. It contends that it is not unreasonable for an employee to provide their own footwear, except for safety, special or protective purposes.

[32] MSS also submits that the types of uniform items required to be worn by Security Officers varies and to specify uniform items would remove the flexibility for employers to provide items that are relevant to their business.

[33] MSS Security refutes United Voice’s submission that the increased cost associated with the proposed variation is likely to be minimal for employers who do not currently provide uniform items such as footwear, submitting that it would impose a significant impost and cost.

[34] Based on employing approximately 3,506 employees who are covered by the Award MSS Security submits that with footwear costing between $60 and $250, the total annual cost for Award covered employees would range from $210,360 to $876,500. In light of the employment costs it submits that the variation would be detrimental to business and contrary to the modern awards objective.

[35] MSS Security states that promotion of social inclusion through increased workforce participation is not a relevant consideration as the requirement for an employee to provide their own footwear in circumstances where the footwear is not for safety, special or protective purposes does not create a barrier to workforce participation.

Ai Group

[36] Ai Group contends that the proposed definition of ‘uniform’ would be contrary to the ordinary meaning of the word as understood in the industry. It submits that an item of ‘uniform’ must contain some ‘distinctive identification’ and the inclusion of items encompassing a ‘dress code’ in the definition would remove the connection that the word has with this notion.

[37] It submits that a definition of ‘uniform’ should exclude items contained in a dress code or clothing policy that are ordinary items of clothing. It also submits that a proposed definition for the purpose of a modern award should recognise the distinct treatment given to ‘personal protective equipment’ under model work, health and safety (WHS) legislation and exclude such items.

[38] Ai Group contends that the proposed variation would be inconsistent with a significant proportion of pre-modern awards that defined ‘uniform’ more restrictively. It also submits that the alteration of the definition of ‘uniform’ would create greater disparity between the Award and various other modern awards that also contain security classifications but do not provide a definition of ‘uniform’.

[39] Ai Group contends that the proposed definition would disturb the balance between wages and conditions that was achieved by the Australian Industrial Relations Commission (AIRC) when creating the Award. It submits that in determining the wages and allowances under the Award, the AIRC gave consideration to the allowances and higher rates of pay in the Security Industry (New South Wales) Award 1999 (the pre-reform award). It submits this consideration, as well as a more restrictive application of uniform allowances under various other predecessor awards, favours a definition of ‘uniform’ that does not go beyond that of the pre-reform award. Ai Group submits that the pre-reform award required employees to provide their own black shoes.

[40] Ai Group states that the proposed definition would be inconsistent with and is not necessary for the achievement of the modern awards objective.

[41] In relation to s.134(1)(c) - The need to promote social inclusion through increased workforce participation, it submits that requiring employers to reimburse employees for items required under an ordinary dress code, including shoes or boots with a non-slip sole, would increase the cost of hiring new employees and could disincentivise the engagement of new employees.

[42] In relation to s.134(1)(f) - The likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden, Ai Group submits that the proposed variation would require employers to provide or pay for an expanded range of items including clothing that employees would ordinarily be assumed to possess. It also states that it would cause an increased regulatory burden and increased costs in resolving disputes over clothing and uniforms.

[43] Ai Group submits that the proposed variation is inconsistent with the need to provide a simple and easy to understand modern awards objective. It submits that the proposed definition would create uncertainty as to the obligation to provide or reimburse employees for items of clothing, noting the broad range of items that may be covered by the definition.

Ai Group’s further submission

[44] In its further submission following the September 2019 hearing, Ai Group expanded upon its contention that it is appropriate for any proposed definition of ‘uniform’ for the purpose of a modern award to recognise the distinct treatment given to ‘personal protective equipment’ under model WHS laws and exclude such items. 17 It states that where a legislative regime has been established for the provision of personal protective equipment, it would be unnecessary to provide an additional regulation. It referred to regulation 44 of the Model Work Health and Safety Regulations and relevant Commonwealth, State and Territory regulations.

Legislative requirements

[45] This matter proceeds as an application to vary a modern award pursuant to s.157 of the FW Act and in doing so s.157(1) requires the Commission to be satisfied that any determination is necessary to achieve the modern awards objective.

[46] The modern awards objective is directed at ensuring that modern awards, together with the National Employment Standards (NES), provide a “fair and relevant minimum safety net of terms and conditions” taking into account the particular considerations identified in ss.134(1)(a) to (h).

[47] The objective is very broadly expressed. 18 The obligation to take into account the matters set out in ss.134(1)(a) to (h) means that each of these matters must be treated as a matter of significance in the decision-making process.19

[48] 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).”

[49] In the 4 Yearly Review of Modern Awards: Preliminary Jurisdiction Issues 2014 decision 20, the Full Bench of the Commission stated in respect of the modern awards objective:

“[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.” (endnotes omitted)

[50] In the Security Services Industry Award 2010 four yearly review 2015 decision 21, (the Award subject to this application) the Full Bench of the Commission stated at [7]-[8]:

“[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)

[51] The Commission is entitled to accept that prima facie the Award achieved the modern awards objective at the time that it was made. 22 The proponent of a variation to a modern award must demonstrate that if the modern award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective.23 What is ‘necessary’ in a particular case is a value judgment based on an assessment of the s.134 considerations having regard to the submissions and evidence directed to those considerations.24

[52] The Full Bench in the 4 Yearly Review of Modern Awards – Penalty Rates Decision (the Penalty Rates Decision) 25 made it clear that it was not necessary in order to justify the variation of a modern award, that a ‘material change in circumstances’ since the making of the modern award(s) under review be demonstrated.26

[53] In performing functions and exercising powers under a part of the Act (including Part 2-3 – Modern Awards) the Commission must take into account the objects of the Act and any particular objects of the relevant part [see s.578(a)]. The object of Part 2-3 is expressed in s.134 (the modern awards objective) extracted above.

[54] The object of the Act is set out in s.3 as follows:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium-sized businesses.”

Consideration

[55] This application in essence if successful would insert into the Award a definition of ‘uniform’ for the purposes of the uniform allowance provision that requires an employer to either provide or reimburse the cost of a uniform where a uniform is required to be worn. In Mr Gavin’s circumstances he is required to wear black leather shoes with non-skid soles by his employer MSS Security which neither supplies nor reimburses the cost of these shoes. MSS Security, as evidenced in the email attachments to Mr Gavin’s application, requires black leather non-slip shoes to be worn as part of its dress code. Should it require ‘steel cap or composite toe protection’ be to be worn, this footwear is provided by MSS Security. 27

[56] By inserting a definition of uniform into the Award which includes shoes or boots MSS Security would be required to supply or reimburse the cost of the footwear it requires its Award covered employees to wear as part of its dress code.

[57] ASIAL submitted that the private security industry employs over 150,000 employees throughout Australia. 28 The Commission in this application however has only heard the evidence of one employee being the applicant, Mr Gavin as to the impact and operation of the existing Award provision. As such the Commission is without the benefit of any direct evidence from what would appear to be a significant number of employees who are covered by the Award.

Modern Awards Objective

[58] As indicated above in dealing with an application pursuant to s.158 of the FW Act the Commission must be satisfied that a determination to vary a modern award is necessary to achieve the modern awards objective. On this point Mr Gavin’s submissions did not address the modern awards objective other than stating “the application does not go against any of the Modern Award Objectives” 29 and rather focussed on the dispute he has with his employer.

[59] Nevertheless, other parties were able to assist the Commission in addressing whether the variation sought was necessary to achieve the Modern Awards Objective by addressing the various objectives listed at s.134(1) they considered relevant to the application.

Relative living standards and the needs of the low paid – s.134(1)(a)

[60] The Annual Wage Review 2016-2017 decision 30 dealt with the interpretation of s.134(1)(a) of the Act stating as follows:

“[361] The assessment of relative living standards requires a comparison of the living standards of workers reliant on the NMW and minimum award rates determined by the Review with those of other groups that are deemed to be relevant and focuses on the comparison between low-paid workers (including NMW and award-reliant workers) and other employed workers, especially non-managerial workers.

[362] The assessment of the needs of the low paid requires an examination of the extent to which low-paid workers are able to purchase the essentials for a ‘decent standard of living’ and to engage in community life, assessed in the context of contemporary norms.” (Endnotes not included)

[61] Accepting that the employees affected by the proposed variation are ‘low-paid’ there was no material put before the Commission comparing the relative living standards of those employees affected by the application with other relevant employees. Nor was there material going to the extent that employees affected by the claim “are able to purchase the essentials for a ‘decent standard of living’ and to engage in community life”. United Voice submitted that for low paid employees the cost of purchasing footwear could range from $60 to $250 which is not insignificant and may disrupt the household budget. This submission of itself is insufficient to conclude that the claim satisfies this element of the modern awards objective. In any event to obtain the true cost to employees of having to provide their own black leather shoes with non-skid soles the cost of the footwear they would otherwise wear to work would need to be deducted.

The need to encourage collective bargaining – s.134(1)(b)

[62] Having regard to the material before the Commission it was not demonstrated that the granting of the claim was likely to either encourage or discourage collective bargaining.

[63] The need to promote social inclusion through increased workforce participation – s.134(1)(c)

[64] The Full Bench in the Penalty Rates Decision set out its interpretation of s.134(1)(c) of the Act as follows:

“[179] Section 134(1)(c) requires that we take into account ‘the need to promote social inclusion through increased workforce participation’. The use of the conjunctive ‘through’ makes it clear that in the context of s.134(1)(c), social inclusion is a concept to be promoted exclusively ‘through increased workforce participation’, that is obtaining employment is the focus of s.134(1)(c).

[180] However, we also accept that the level of penalty rates in a modern award may impact upon an employee’s remuneration and hence their capacity to engage in community life and the extent of their social participation. The broader notion of promoting social inclusion is a matter that can be appropriately taken into account in our consideration of the legislative requirement to ‘provide a fair and relevant minimum safety net of terms and conditions’ and to take into account ‘the needs of the low paid’ (s.134(1)(a)). Further, one of the objects of the FW Act is to promote ‘social inclusion for all Australians by’ (among other things) ‘ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through … modern awards and national minimum wage orders’ (s.3(b)).”³¹ (Endnotes not included, underlining added)

[65] United Voice contended that significant upfront costs may act as a barrier to obtaining employment especially for the low paid. The Commission accepts that the cost of providing their own footwear is not insignificant for low paid employees, however more problematic is whether it amounts to acting as a barrier to obtaining employment. Mr Gavin gave no evidence concerning the impact to him of the cost of having to provide his own footwear. To the extent that this objective is relevant to the application before the Commission I am not satisfied that it has been demonstrated that the variation as sought would promote increased workforce participation.

The need to promote flexible modern work practices and the efficient and productive performance of work – s.134(1)(d)

[66] It is unlikely that the introduction of a definition of a ‘uniform’ for the purposes of an entitlement under the Award would have either a positive or negative impact on work practices or the efficient and productive performance of work.

The need to provide additional remuneration for employees working overtime or employees working unsocial, irregular or unpredictable hours or employees working on weekends or public holidays or employees working shifts – s.134(1)(da)

[67] This would not appear to be a relevant consideration in the circumstances of the application.

The principle of equal remuneration for work of equal or comparable value – s.134(1)(e)

[68] This would also not appear to be a relevant consideration in the circumstances of the application.

The likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden – s.134(1)(f)

[69] United Voice submit that any cost would be negligible as some employers already provide the benefit sought and the cost can be mitigated by the employer providing the footwear, rather than providing a reimbursement.

[70] Whether the employer provides the footwear or reimburses the cost it cannot be disputed that the amendment if granted would lead to an increase in employment costs. There is also a regulatory burden in having to administer the provision of footwear or reimbursement of the cost of footwear if deemed to be part of a uniform under the proposed amendment. The proposed uniform definition to include a ‘shirt or blouse, pants or dress’ would further potentially increase the costs of the claim.

The need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards – s.134(1)(g).

[71] United Voice submit that as the Award does not define ‘uniform’ the insertion of a definition will ensure the Award is simpler and easier to read. The amendment introduces the concept of a ‘code of dress or corporate clothing or otherwise’ together with a definition of ‘uniform’ that ‘is not limited to’ to a shirt or blouse, pants or dress and shoes or boots. In the Commission’s view there is potential that these new concepts as worded will cause confusion to both employees and employers. For example, where an employer stipulates a dress code what additional obligations would arise for the employer under the proposed amendment?

The likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy – s.134(1)(h)

[72] This would not appear to be a relevant consideration in the circumstances of the application.

[73] While the parties to this application did not reference s.578 of the FW Act which lists the matters the Commission must take into account in exercising its powers under the FW Act, I am satisfied that their general submissions covered the need to consider the objects of the Act and the other factors specified in s.578.

Conclusion

[74] The claim to amend the Award has arisen from a dispute Mr Gavin has with his employer that he has been unable to resolve. There was no evidence of any widespread discontent by security employees with the existing Award provisions in relation to the application of clause 15.11(b). The Commission is unable to conclude on the evidence of one employee that the proposed amendment is necessary to achieve the modern awards objective.

[75] It does not appear that the issue of what constitutes a ‘uniform’ was agitated during the modernisation process for the Award, noting that a predecessor award the Security Industry (New South Wales) Award 1999 excluded black shoes from the uniform provision.

[76] It is also noted that there are numerous other modern awards which contain a security classification where a definition of uniform is not provided. The Commission is entitled to conclude that the Full Bench when making the Award and reflecting the uniform provision was cognisant of this background and determined that the uniform entitlement as stipulated in the Award was appropriate.

[77] Based on the material before the Commission I am not satisfied that it is necessary to amend the Award as proposed by Mr Gavin and supported by United Voice as I am not satisfied that the amendment is necessary to achieve the modern awards objective.

[78] For the above reasons, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr C Gavin on his own behalf
Ms N Dabarera for United Voice
Mr C Delaney for Australian Security Industry Association Limited
Mr H Harrington for Australian Industry Group

Hearing details:

2019
Sydney
September 19

Printed by authority of the Commonwealth Government Printer

<MA000016  PR717492>

 1   MA000016.

 2   See s.158(1).

 3   Note the amalgamation of United Voice and the National Union of Workers as the United Workers Union on 11 November 2019.

 4   Filed on 28 July 2019.

 5   Directions 8 July 2019.

 6   Exhibit A1.

 7   United Voice submission 30 July 2019.

 8   United Voice correspondence 1 August 2019.

 9   ASIAL submission 20 August 2019.

 10   MSS Security submission 20 August 2019.

 11   Ai Group submission 20 August 2019.

 12   Ai Group submission 26 September 2019.

 13   United Voice submission 3 October 2019.

 14   Exhibit A1 at [11], [19] and [20].

 15   Exhibit A1, Form F46 Attachment, at item 2.3.

 16   ASIAL submission 20 August 2019 at [7.3].

 17   Ai Group submission 26 September 2019.

 18   Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35] per Tracey J.

 19   Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836.

 20   [2014] FWCFB 1788.

 21   [2015] FWCFB 620.

 22   [2014] FWCFB 1788 at [24].

 23   See s.138 of the Fair Work Act 2009 (Cth).

 24   [2014] FWCFB 1788 at [35-36].

 25   [2017] FWCFB 1001.

 26   Ibid at [230]-[264].

 27   Annexures to Exhibit A1.

 28   ASIAL submission 20 August 2019.at 5.1, although it is not made clear whether all these employees are said to be covered by the Award.

 29   Exhibit A1, Form F46 Attachment, at item 2.3 (4).

 30   [2017] FWCFB 3500 at [361]-[362].

31 [2017] FWCFB 1001 at [179]-[180].