SECURITY OFFICERS' AWARD

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Liquor, Hospitality and Miscellaneous Union, Western Australian Branch

APPLICANT

-v-

Unions WA AND OTHERS

RESPONDENT

CORAM Commissioner J L Harrison

HEARD Tuesday, 27 March 2007

DELIVERED THURSday, 26 april 2007

FILE NO. APPL 52 OF 2006

CITATION NO. 2007 WAIRC 00397

Catchwords Award - Award variation - Conditions of employment - Application for new allowances/provisions - Special Case - Statement of Principles July 2006 applied - Award varied - Industrial Relations Act 1979 (WA) s 40

Result Varied

Representation 

Applicant Ms S Northcott

Respondent Mr D Jones on behalf of the Chamber of Commerce and Industry of Western Australia

Reasons for Decision

(Given extemporaneously at the conclusion of the proceedings

as edited by the Commissioner)

1         This application was lodged by the Liquor, Hospitality and Miscellaneous Union (“the applicant”) (“the Union”) pursuant to s40 of the Industrial Relations Act 1979 (“the Act”) to vary a number of clauses in the Security Officers’ Award (No A25 of 1981) (“the Award”).

Background

2         This application, which was lodged in the Commission in April 2006, has an extensive history.  As the applicant sought to vary the Award’s scope clause relevant parts of the application were advertised in the Western Australian Industrial Gazette (“the WAIG”) (see 86 WAIG 1001).  On 8 January 2007 the applicant then lodged an amended schedule to the application proposing additional variations to the Award, including the addition of other named respondents and changes to the compassionate leave clause.  The relevant parts of the amendments were again advertised in the WAIG (see 87 WAIG 229) and the applicant was required to provide a copy of the amended application to the respondents to the application and the proposed named respondents.  As some of the proposed allowances appeared to vary the Award’s safety net the application was referred to the Chief Commissioner for consideration as to whether or not the incorporation of these allowances should be progressed pursuant to Principle 10 of the Statement of Principles – July 2006 of the 2006 General Order Wage Case Decision.  After considering the matter the Chief Commissioner determined that relevant parts of the application should be dealt with by a single Commissioner under that principle and this application was remitted to the Commission as constituted to deal with the application under Principle 10.

The Proposed Variations

3         By letter dated 21 March 2007 the Union detailed further changes to the amended schedule lodged on 8 January 2007 that it was seeking to incorporate into the Award and at the hearing the Union confirmed that these were the final variations being sought by the Union.  I will not detail the specific variations being sought by the Union as the proposed changes are on the record and contained in the Union’s letter to the Commission dated 21 March 2007 however the variations being sought relate to the following Award clauses:

Clause 2 – Arrangement

Clause 3 – Area and Scope

Clause 4 - Term

Clause 5 – Definitions

Clause 6 – Contract of Employment

Clause 7 – Hours

Clause 8 – Holidays

Clause 9 – Annual Leave

Clause 10 – Absence through Sickness

Clause 11 – Long Service Leave

Clause 12 – Compassionate Leave

Clause 13 – Shift Allowances

Clause 14 – Saturday and Sunday Work During Ordinary Hours

Clause 15 – Overtime

Clause 16 – Call Back

Clause 18 – Access to Records

Clause 19 – Posting of Notices

Clause 20 – Special Rates and Provisions

Clause 21 – Classification Structure and Wage Breaks

Clause 22 – Safety Provisions

Clause 26 – Maternity Leave

Clause 28 – Payment of Wages

Clause 30 – Probationary Security Officer

Clause 31 – Dispute Settlement Procedures

Clause 33 – Superannuation Record

Clause 35 – Transition and Implementation: Classification Structure

Clause 36 – Jury Service Leave

Clause 37 – Termination, Introduction of Change and Redundancy

Appendix – Resolution of Disputes Requirements

Appendix – S.49b - Inspection of Records Requirements

Schedule A – Parties to the Award

Schedule B – Respondents.

4         The applicant made assertions from the bar table that no employer bound by the Award had indicated that it contested the proposed variations and it is also the case that no objection to this application was lodged in the Commission, nor did any respondent attend the hearing of this application to object to the proposed Award variations.

5         I will deal firstly with those parts of the application which are variations based on updating and modernising the Award and the incorporation of legislative changes into the Award.  I find that these changes meet the requirements of the Statement of Principles – July 2006 as they do not constitute a variation to the Award’s safety net and they should therefore be incorporated into the Award and in reaching this view I note that the changes as proposed modernise and update the Award, the changes give the Award greater clarity and I accept that some of the changes rectify previous omissions and mistakes.

6         The applicant proposes that a new Clause 12. - Compassionate Leave be included in the Award and maintains that this is a standard provision currently covering the majority of Australian employees by virtue of ss257, 258 and 259 of the Workplace Relations Act 1996 (“the WR Act”).  As I am satisfied that the terms of this clause, which is a standard benchmark clause, applies to a substantial proportion of the Australian workforce then it is my view that it is appropriate that the Award be updated to include this clause.  I will therefore order that the proposed new Clause 12 - Compassionate Leave be incorporated into the Award.

7         The Union is seeking the inclusion of four new allowances into the Award; a non-rotating night shift allowance, an aviation security allowance, a standing-by allowance and a broken shift allowance.  I propose to deal with this part of the application pursuant to Principle 10 of the Statement of Principles – July 2006 as the inclusion of these allowances will vary the Award’s safety net.

8         Ms Nashell Ireland gave evidence during these proceedings.  Ms Ireland is employed by the Union as an Industrial Officer and she has been dealing with members working in the security industry for approximately two years.  I accept Ms Ireland’s evidence that some security officers now work a permanent nightshift, specifically in the areas of the provision of security for shopping centres and local government authorities and that working night shift on a permanent basis negatively impacts on the social life of those employees and on the flexibility that these employees have with respect to their family responsibilities.  I am satisfied on the evidence that some security officers are now working permanent nightshift as opposed to working nightshifts from time to time, and that this disability has not previously been compensated in the Award and in the circumstances I am of the view that it is appropriate that employees covered by the Award who work a permanent night shift should be compensated for these disabilities by being paid the non-rotating night shift allowance being claimed.

9         I am of the view that the aviation security allowance as proposed should also be incorporated into the Award.  I accept Ms Ireland’s evidence that security officers working in the aviation industry require greater levels of security clearance than before due to the events of 11 September 2001 and I accept Ms Ireland’s evidence that this allowance is paid to security officers working in the aviation industry in other states.  My associate also informs me that the allowance as proposed is in the same terms as the Award’s counterpart Federal award.  In the circumstances I find that it is therefore appropriate that this allowance be incorporated into the Award.

10      The Union proposes that a standing-by allowance and a broken shift allowance be incorporated into the Award.  The Union argues that these allowances are contained in other awards of this Commission that apply to other like industries such as the hospitality industry and the Union argues that these allowances should be paid to compensate employees who suffer the disability of being required to stand-by for duty and work broken shifts.  I am aware that allowances of this nature are contained in a range of awards and I accept the Union’s claim that from time to time employees covered by the Award undertake these activities and are currently not recompensed for doing so.  In the circumstances it is my view that both of these allowances, which in my opinion contain reasonable rates, should be incorporated into the Award.

11      In reaching the view that all of these allowances should be incorporated into the Award I note that no employer bound by the Award objected to their inclusion.

12      In conclusion and when taking into account the Statement of Principles – July 2006 and the requirements under s26 and s6 of the Act I am satisfied that all of the variations as proposed by the applicant in its amended application lodged on 8 January 2007 and letter dated 21 March 2007 should be incorporated into the Award and an order will issue in those terms.

13      I will comment on some issues raised by the Chamber of Commerce and Industry of Western Australia (“the CCI”) during these proceedings.  At the outset of the proceedings the CCI sought leave to intervene in these proceedings with respect to two issues.  The CCI sought to ensure that no constitutional corporations were named as respondents to the Award due to the displacement of the Commission’s jurisdiction over constitutional corporations given the provisions of s16 of the WR Act and the CCI advised the Commission that discussions between the Union and the CCI had taken place prior to the hearing and that as a result the applicant had agreed to delete Bax Security Services and Transurety Pty Ltd as named respondents to the Award.  Even though the CCI requested that the Commission satisfy itself that no other entities to be named respondents to the Award were constitutional corporations I declined to make these enquiries as I accept the applicant’s assertions at the hearing that after having undertaken business searches of the proposed respondents to the Award, to the best of its knowledge none of the proposed named respondents contained in its application were constitutional corporations.  I also note that in any event even if a constitutional corporation was named as a respondent to the Award then the provisions of the WR Act would override their respondency to the extent of the scope of that act.  The CCI then asked that the Commission include a variation to the Award’s scope clause to include words to the effect that the Award should not apply to any employer that is a constitutional corporation within the meaning of the WR Act.  I informed the CCI’s representative at the hearing that I would not deal with this application at this point in time as no formal application to this effect was before the Commission and I advised the CCI that if it wished to make an application to vary the scope clause of the Award in the manner that it was proposing then it was open for it to do so and the application, if lodged, would then be dealt with in the normal manner.

14      As I am satisfied that the variations as proposed by the Union should be incorporated into the Award I will issue an order that these variations be effective from the first pay period on or after 27 March 2007.