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.

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 SA 1 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 noted 2 : “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”.

As a result, the current Award allows an employer the discretion to operate a roster which averages 38 ordinary hours per week over the period of the roster cycle and to allocate overtime at a point before which all ordinary hours have been worked;

Since the making of the modern Award there have been a number of cases where the Union has contested the employer’s interpretationof the Award. For example In Harland v MSS Security Services Pty Ltd [2013] FWC 8064 (25 October 2013 at [77] The Commissioner said :

“There is nothing inappropriate in the respondent designing its rosters to minimise its costs as the Full Bench has clearly recognised. In terms of the respondent’s approach to rostering ordinary hours and consequently where overtime hours fall in that roster, I am satisfied the respondent is entitled to operate under the roster it has designed in this case”. In 2017 United Voice ACT Branch made an application to the Federal Court arguing, in essence, that under the Security Services Industry Award 2010 (the Award) employers could not allocate overtime on Sundays during a 12-hour roster cycle and that overtime could only be calculated as commencing after ordinary hours had been exhausted.

That application was dismissed by Justice Tracey saying: “Rostering arrangements are within the discretion of the employer. Consistently with the existence of this discretion the Award does not contain any express restrictions on the exercise of that power. In particular, it is open to an employer: 3 to choose the day on which a roster is to begin; 3 to decide whether overtime hours can be included in the roster at a point before which all ordinary hours have been worked; 3 to decide on the number of days on which ordinary hours can be worked; and to fix the number of days of the week on which ordinary hours are to be worked (subject to the limitations prescribed by cls 21.3 and 21.4).”

United Voice sought to appeal the decision and the appeal was heard by the Federal Court Full Court. Its decision was handed down on 26 April 2019.

Justices Collier, Bromwich and Wheelahan dismissed the appeal and upheld the earlier decision of Justice Tracey. They found that the Award placed no restriction on the employer, confirming Justice Tracey’s findings as noted above.

Further, the Federal Court – Full Court indicated that overtime could be worked prior to the commencement or after the completion of ordinary shift hours or on a day when ordinary hours are not rostered.

SHOULD WE BE CONCERNED ABOUT A CHANGE TO THE AWARD? Awards are complex documents. When reading an award and interpreting the requirements you must read the entire award and understand how the clauses interact with each other. Changing one award clause may have significant flow on effects elsewhere in the award.

In ASIAL’s interpretation, the Union’s application to vary the ordinary hours of work clause with reference to overtime will significantly impact rostering and roster cycles, overtime and shift duration. It is dangerous to look at one change in isolation. The indications so far from our members is that there is no appetite for the changes sought by the Union. Experience has shown that both employees and employers are largely happy with the 12-hour shift as it has been working for some time. It does not suit every security activity, and that is why we have the rostering flexibility that currently exists. It allows employers to meet the demands of clients and contracts in the most efficient way available within the contraints of the award. Losing that flexibliity will have a detrimental effect on employees, employers and their clients.

THE MODERN AWARD OBJECTIVES The Union must convince the Fair Work Commission that the award variation they seek is necessary and meets the modern award objectives, including any extra costs or regulatory burden on employers. When introduced modern awards were supposed to be easy to understand, fair and not create extra costs for employers. That should be true of any variations.

WHAT’S NEXT? The Fair Work Commission ha set down a program of submissions and hearing dates.

The Union must file and serve on the other parties its submissions, witness statements and other evidentiary material by 5.00pm Monday 20 January 2020.

Employer groups must file and serve its submissions, witness statements and other evidentiary material upon which it intends to rely by 5.00pm Monday 13 April 2020.

The Union United Voice must provide submissions in rely by 5.00pm Monday 18 May 2020 and the matter is listed for hearing before a Full Bench at 10.00am on 16, 17, 18 June 2020 in Sydney, with video-links to other states as required. While those timeframes seem fairly generous it takes time and a lot of information gathering to develop a proper case in reply to the Union’s submissions. ASIAL members will need to provide us with succinct and accurate information about their operations, rostering and use of 12-hour shift systems, roster cycles and the allocation overtime.

We will need to produce witnesses and witness statements that support the position taken by the industry. And we will need legal representation to coordinate, develop and present the industry position before the Fair Work Commission. All this takes time and requires members to become actively involved in all aspects of presenting an industry position.

ASIAL will be asking members to complete a survey in order to gauge the extent to which members in the guarding sector of the security industry use 12-hours shifts and roster cycles of between 2 weeks and 8 weeks; the manner in which they allocate and pay overtime and the expected impact of the changes being sought by the Union. We can only act on factual information corroborated by evidence and witnesses. Members are asked to engage with ASIAL, follow the First Alerts and visit the website where we will provide information on the progress of this matter.

If you have any questions relating to the above or any other workplace issue contact ASIAL’s Workplace Relations Advisor at: chris@asial.com.au