SEC URIT Y F E AT URE
12-HOUR SHIFTS AND OVERTIME IN THE SECURITY INDUSTRY “United Voice (the Union) - (now renamed United Worker’s Union) - has recently applied to the Fair Work Commission for the Award to be varied to ensure that an employer covered by the Award cannot arbitrarily allocate overtime within a roster cycle regularly and systematically to hours which would attract penalty rates”. In other words the Union seeks to stop employers allocating overtime to a Saturday or Sunday within a roster cycle - exactly what various decisions of Industrial Tribunals and the Federal Court have said is allowable under the Award and its predecessor Awards and a practice that has existed lawfully in the private security industry since 1998.
2 8 SEC UR IT Y IN S IDE R | DEC/ JA N 2020
The Union’s Application The Union seeks to have the following clause inserted into the Award: “21.1 Ordinary Hours and Roster Cycles By inserting a new clause 21.1(b) as follows: Overtime rates will be paid for any time in excess of the hours prescribed for each roster cyclein clause 21.1(a). For the avoidance of doubt the regular and systematic allocation of overtime hours to any timeat which penalty rates are payable shall be unreasonable overtime as defines by s62 of the Fair Work Act.” While on the face of it, the Union’s application is not aimed at the removal of 12 hour shifts, or roster cycles, few industry employers would find it financially viable to continue rostering 12 hour shifts in a roster cycle of up to 8 weeks, if overtime could not be effectively organised as they have been traditionally able to do so, i.e.on a Saturday or Sunday. The history of roster cycles including 12- hour shifts and overtime goes back to 1998. I won’t bore you with all of it, however it is important to know that several decisions of industrial tribunals since then have confirmed the employer’s prerogative (under the various awards) and industry practice to allocate ordinary hours and overtime at their discretion (within the provisions of the applicable award). In 2008 dealing with the SA State Security Officer’s Award the Industrial Court of SA1 approved the allocation of overtime to Sundays based on evidence of accepted industry practice. In particular, Industrial Magistrate Ardlie accepted the evidence of a former United Voice (then known as LHMU) official, Mr. Rodney Graham, who played a significant role in drafting the Award. Accepting this evidence, Magistrate Ardlie said: 39. …” I am of the view that the evidence advanced by Graham provides an explanation as to why the respondent adopted an averaging method and an allocation of overtime to Sundays. Employer groups in the industry and ALHMU it seems were all aware of the practice of payment of overtime on Sundays where 12-hour shifts were worked”. And…”At workplaces where a 12-hour shift was introduced the roster cycles invariably provided for a 4-day-on / 4-day-off shift roster with overtime paid on Sundays. This roster cycle was an industry standard and accorded with the agreement to vary the Award”. The modern Award was made after significant consultation between the Union, ASIAL and other interested parties in 2008 to commence in 2010. At that time, the Australia Industrial Relations Commission noted2: “We have been persuaded by the submissions of ASIAL that provision should be made for 12-hour ordinary time shifts. We recognise that the security services industry operates 24 hours a day, seven days a week and that 12-hour shifts are a ubiquitous feature of the industry throughout Australia. The exposure draft provided for 12-hour shifts but only on the basis of 10 hours of ordinary time and two hours of rostered overtime. The absence of provision for 12-hour ordinary time shifts would result in increased costs to many employers and result in many employees working more overtime than they may wish to work”. The Full bench went on to say at [298]: “Overtime rates Similarly, we accept that the adjustments to the overtime rates submitted by ASIAL represent a fairer balance between disadvantage to employees and increased costs to employers”.
