TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application for award or variation of award

Australian Liquor, Hospitality and Miscellaneous Workers Union -
Tasmanian Branch
(T.4284 of 1993)

SECURITY INDUSTRY AWARD

Award variation - security officer - level 4 and firearms

REASONS FOR DECISION

This application by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the Union) was for the variation of the Security Industry Award to provide for the classification of a security officer engaged in security work at Pasminco Metals-EZ at level 4. Further the application was to amend Clause 15 - General Conditions in the following terms:

The determination of the appropriate classification level for the security officer at Pasminco Metals-EZ has been adjourned sine die at the request of the parties. However the Commission was requested to hear and determine the proposed variation to Clause 15 - General Conditions as set out above. This was after the matter was initially adjourned to allow the Tasmanian Chamber of Commerce and Industry Limited (TCCI) to pursue discussions with the State Government aimed at resolving issues of concern to security industry employers. In April 1993 Mr Edwards stated:

A further concern advanced by Mr Edwards at that time was that the Guns Act 1991 provided that a gun licence granted to an employee to carry a gun as a security guard was a "lifetime licence"1 and was not restricted to the work of an employee for his immediate employer. Mr Edwards submitted that it was "inequitable and unfair"2 for the first employer of a security guard to have to bear the cost of a lifetime licence. Elements contributing to this alleged unfairness were said by Mr Edwards to include circumstances where a security guard established his or her own business or resigned to work for another employer.

In all of the circumstances I granted the adjournment to allow more time for the TCCI to discuss its concerns with the State Government.

On 15 June 1993 further proceedings were conducted in respect of the Pasminco Metals-EZ security guard classification level. The issue relating to the amendment to Clause 15 - General Conditions was not addressed at that time. However on 19 August 1993, when the application was again before the Commission, Mr O'Brien for the Union proposed that the "gun licensing"3 part of the application be finalised. That course of action was adopted by the Commission.

Mr O'Brien submitted that the award provision, as it related to firearms (excluding quantum), had existed in its current form since the inception of the Commission. Beforehand it was an award provision when awards were regulated by the Industrial Board system. The existing clause is as follows:

Mr O'Brien contended that the key words in the above clause were "the cost of the licence". He said that up until the Guns Act 1991, the only licence required was a licence for the firearm. That situation had now changed to where the person carrying the firearm had to hold the licence which was specific to the security industry. The licence was not for private use, but relevant only to the security industry.

In his submission Mr O'Brien also highlighted the evidence provided by Mr Weir, Tasmanian State Manager of Wormald Australia. That evidence related to Clause 17 - Licence Fees of the award where Mr Weir stated:

Mr O'Brien indicated that he understood Mr Weir to have said that it was up to employees to present themselves with a licence if they wished to be employed. He contrasted that with the current award provisions which placed the obligation on the employer in respect of securing a security licence for employees (clause 17) notwithstanding that in accordance with this particular provision of the clause employees are required to meet the cost of the first licence by reimbursing the employer; but subsequently the employer paid the licence costs.

With regard to firearm licences referred to in Clause 15, these costs are required to be met by employers.

With the promulgation of the Guns Act 1991 firearms are not required to be licensed but the person holding the firearm is licensed. For the security industry this means that the cost of a gun licence for an employee employed as a security guard is $150. Additionally a further cost of $150 is necessarily incurred for the user of the gun (the person who is licensed) to undergo a specific training course.

In respect of the foregoing circumstances where the emphasis has changed, consequential to the implementation of the Guns Act 1991, from the firearm being licensed to the person being licensed, Mr Weir's evidence was that employees should be required to pay the $300 cost involved on the basis that it is a licence for the person and not a licence for the employer. Mr O'Brien submitted that position was in contradiction to the principles contained in Clause 17 - Licence Fee, where the employer met recurrent licence fee costs. Only the first year cost is recoverable by the employer in accordance with the terms set out in that particular provision. In that regard Mr O'Brien submitted that the issue of licence fees was already dealt with by the award in that it was recognised that these cost obligations fell in a substantial way on employers. Also it was contended by Mr O'Brien that the principle of employers meeting the cost of supply of a firearm, ammunition and the cost of the licence, was already provided for in Clause 15 - General Conditions of the award. Having regard to that particular clause Mr O'Brien referred to the fact that where an employee already held a firearm licence at the time of employment, the employer paid an allowance. Mr O'Brien said:

and later:

Mr O'Brien submitted that this was an unreasonable expectation of employees. He stressed that the award already had "a primary licensing factor"4 addressed in clause 17 and that the use of a firearm was at the discretion of the employer. He said:

It was emphasised by Mr O'Brien that employees use firearms at the discretion of employers and holding a licence or being trained in the use of a firearm was not an obligation on employees in terms of obtaining employment in a general sense. That is, employees were required to be licensed in cases where employers wished them to perform work requiring the need to carry a firearm.

In respect of concerns raised by the TCCI that many employees terminate their employment after a relatively short period of employment in the security industry, Mr O'Brien was not opposed to recovery of some costs that would be incurred by employers, on the basis of the provisions already contained in the award in respect of licence fees. Basically there is a capacity in the award for an employer to recover 50% of the licence fees paid, up to a maximum of $70, in the event an employee leaves the employ of the employer within six months of the licence fee being paid by the employer.

Mr Abey appearing for the TCCI refuted that any reliance could be placed on the existing award provision in respect of Clause 15(a) - General Conditions - Firearms, where the obligation was on the employer to provide an employee with a firearm where the employee was required to carry such a weapon.

Mr Abey contended that it would be a nonsense to seize on the existence of that award provision or words and apply them to different circumstances occasioned by the promulgation of the Guns Act 1991.

The differences between the Firearms Act 1932 and the requirements of the Guns Act 1991 were highlighted by Mr Abey. These may be summarised on the basis that the Firearms Act stipulated that registration and the permit to carry a pistol were in the name of the employer who also met associated costs. The legislative provisions enabled the employer to allow an employee to carry a firearm when required. Mr Abey submitted that the architects of the original clause could not have contemplated what was now contained in the Guns Act 1991. In accordance with the Guns Act employers were required to meet registration costs for firearms. However beyond that Mr Abey indicated that the Guns Act 1991 introduced an entirely new concept. He said:

The reference to "users" above referred to employees. Schedule 1 of the Guns Regulations 1992, Exhibit A2, sets out the fees that apply. For a security guard's gun licence the fee was $150. Before that licence can be issued there was a prerequisite for the user of the gun to undergo a training course at a cost of $150.

Mr Abey referred the Commission to discussions between the TCCI and the State Government (the Government) focusing on employer concerns to ameliorate the potential cost to employers of the new licensing arrangements specified in the Guns Act 1991. The end result was that the Government was not persuaded to make any changes to the legislation. Mr Abey indicated that one of the key submissions made to the Government related to training and that, at the very least, Wormald should be permitted to continue to provide training for its employees. Mr Abey submitted that whilst there appeared to be support for this "at the end of the day we find out that the Government had entered into a monopolistic contract with one provider"5. Mr Abey contended that everything possible had been pursued with the Government in an attempt to reduce or remove potential costs to the industry.

It was emphasised by Mr Abey that the critical issue however was that the licence attached to an individual and "stays with the individual for life"6. He said it was a one-off licence which did not require renewal and was fully portable within the industry. He submitted that it would be unfair for the employer of the day to be required to bear the cost of what was effectively a "fully portable occupational licence"7. In support of that position Mr Abey pointed to the high turnover of employees in the security industry which for Wormald was 37 percent for patrolmen in 1992 and 21 percent for guards.

Mr Abey countered the submissions of Mr O'Brien where he contended that the award already provided for employers to meet licensing costs. Mr Abey submitted that no such prior principle was established in the award in respect of the requirements of the Guns Act 1991. Specifically he submitted that security licence fees referred to in clause 17 of the award did not create a precedent or principle as the clause was inserted in the award by consent many years ago and the circumstances were not known. It was submitted by Mr Abey that the correct principle on who should meet the cost of licence fees was established in the Transport Workers Industrial Commercial and Domestic Refuse Award Case (Print D8559) where Commissioner Clarkson determined that licence fees to drive and operate articulated and rigid vehicles used for the transportation of waste products were the responsibility of drivers. It was considered by the Commissioner that it was the responsibility of the employees concerned to fit themselves to carry out the required duties and that the costs involved in the endorsement of licences and passing of tests should be met on the employees own account. Mr O'Brien responded to this by submitting that in his opinion it would not have been intended by Commissioner Clarkson to deal with the principles involved in relation to cost of licences in one or two lines in settling a log of claims. Mr O'Brien said that he doubted that Commissioner Clarkson:

and later:

Mr Abey also pointed out that the security licence fee was a shared cost as specified in clause 17 of the award. A further aspect was that the security licence fee, renewable annually, was distinct from the lifetime gun licence discussed in this matter which Mr Abey said was a very important distinction.

Mr Abey postulated the view that if an occupation required a particular licence then it was up to the employee to meet the costs of the licence. Mr Abey submitted:

and later:

Mr Abey also informed the Commission that it was not a requirement for every employee in the security industry to obtain a gun licence. By way of example he referred to the position of patrolmen where there was a requirement to carry a gun however that requirement did not extend to every part or segment of the security industry. Notwithstanding Mr Abey contended that the flexibility of the industry was now compromised because in the past employees could be trained in the use of firearms, obtain a licence and the employer could then utilise the employees concerned as and when required to perform work where it was a requirement to carry a gun. This arrangement was now compromised because of the costs associated with carrying a gun.

Mr Abey submitted that the costs of licensing and training a person to carry a gun should not have to be met by the employer concerned, even though there was a requirement, in certain circumstances, by the employer for the employee to do so. Mr Abey also informed the Commission that in large measure patrolmen were given an option of whether they carry a firearm or not and that it was only in isolated cases that this was a requirement.

Additional Submission

At the request of Mr Abey, not opposed by Mr O'Brien, a further opportunity was provided to Mr Abey to make additional submissions. In doing so Mr Abey emphasised that his primary submission remained but that the Commission should be informed of the details of an alternative proposal put to the Union. The proposal was in the following terms:

"Alternative Proposal of T.C.C.I.

Gun Licence Allowance

In circumstances whereby a security officer is required to carry a firearm, such employee shall be paid an allowance calculated on the basis of $5.00 per week of 38 hours. Where the requirement extends to a greater or lesser number of hours per week, the allowance shall be paid on a pro rata basis.

Provided that this allowance shall not be payable in circumstances whereby the employer has paid the cost of the licence fee and training course on behalf of the holder of the licence."

Mr Abey likened this proposal to a tool allowance where a tradesman or tradeswoman provided tools and the employer paid an allowance "for owning and maintaining that kit of tools"8. It was contended by Mr Abey that the kit of tools in this case was the licence to carry a firearm.

The $5.00 per week allowance, proposed to be paid pro rata on the basis of a 38-hour week, would amount to $240 in a 48-week year. Mr Abey submitted on that this basis the licence fee and training costs amounting to $300 in total, would be offset in just over 12 months.

In response, Mr O'Brien reiterated the union's position which was that the employer should pay licence and training costs. Specifically in response to the proposal put by Mr Abey, the submissions of Mr O'Brien may be summarised as follows:

1. To limit payment to circumstances where a security officer was required to carry a gun would leave room for doubt as to whether the carrying of the gun was in actual fact a requirement or not. Enforcement may be difficult to prove.

2. Where a firearm was required to be carried continually the associated costs would be paid by the employer in slightly over 12 months, therefore an employer would be better off paying the licence and training costs in the first instance. This would particularly be the case where there was an ongoing employment relationship.

3. The only value in the TCCI proposal was where employment was short term because then the bulk of the cost burden would be met by the employee.

4. It was recognised that where employment was short-term the bulk of the cost would be met by the employee. However, where an employee was engaged for a short term, the $5.00 per week allowance, whilst cheaper for employers, could result in the employee having to carry all of the residue cost, i.e. over and above the allowance going towards reimbursement of costs, unless the person concerned was employed in the security industry elsewhere.

5. In these circumstances, subsequent employment may be denied to an employee with a licence because of the ongoing cost of having to pay that employee $5.00 per week because effectively the new employer was prevented from meeting the cost of licence and training which would waive the $5.00 per week allowance.

6. The pro rata aspects of the proposal were also questioned on the basis that the costs incurred for the licence and training were the same for all categories of employees, part-time, casual, full-time, etc.

7. An allowance would be to the detriment of any person who was required by an employer on a short term basis because the allowance would not recoup under 12 months the costs involved. In the longer term the employers would be better off to pay the costs of licences and training.

Decision

The competing submissions in this matter have been comprehensively canvassed. On the material before the Commission I am satisfied that the arguments advanced by Mr O'Brien, which were primarily that the cost of meeting licence fees by employers is already a feature of the security industry, are able to be sustained. In that context Clause 15 - General Conditions of the award requires employers to meet the cost of the firearm licence. I recognise the submissions of Mr Abey insofar as the consent inclusion in the award concerning the licence fees provisions in Clause 17 - Licence Fees, and that these should not now be held against employers. Certainly I do not intent for that to be the case but I do consider that the principle has been established by virtue of Clause 15 - General Conditions. This, notwithstanding that the Guns Act has completely changed the licensing requirements and that the new arrangements provided for by that legislation stipulate that the person using a firearm has to be licensed. I was not persuaded by Mr Abey that the decision of Commissioner Clarkson was one that I should have followed or adopted in this matter. That decision, albeit short on detail, dealt specifically with drivers of articulated and rigid vehicles and the requirement for the cost of licenses to drive these vehicles to be met by employees. I also did not consider the examples referred to in Exhibit A5 to establish a compulsion or precedent to be followed in this matter. In my opinion each industry circumstance in respect of award prescription should be considered on the merit. Relevant precedent is of course important and may be persuasive but in this matter I do not consider the material provided by Mr Abey to fall into that category.

What is also important in this matter, quite apart from the General Conditions provision in the award, was that to hold a gun licence, as stipulated by the Guns Act, is not a prerequisite to gain employment in the security industry. This was a point made by both Mr O'Brien and Mr Abey and was discussed in this decision. Clearly it is only in particular circumstances where the employer requires an employee to carry a gun. In those specific circumstances it is appropriate for the employer to provide the "wherewithal" to enable an employee to comply with the specific requirement of an employer. I concur with Mr O'Brien that it would be unreasonable in an ongoing employment relationship, to expect an employee to be compelled to meet licensing and training costs where an employer requires an employee to carry a gun.

With regard to the submissions by Mr Abey that the licence attached to an individual for "life" (transcript p.100) the distinction made by Mr O'Brien is valid in that the licence has application only in the security industry. In that regard I am cognisant of the turnover rate of employees in this industry as discussed by Mr Abey in respect of the turnover of patrolmen and security guard employees. In light of that established trend I consider that some amelioration should be afforded to employers given that this decision compels them to meet training and licensing costs. Accordingly I am of the opinion that the formula for reimbursement to employers of costs as provided for in Clause 17 of the award to be an appropriate mechanism.

Having regard to my findings, it follows that the alternative proposal advanced by the TCCI is not supported by the Commission. There seems little to be gained by this approach as where there is a requirement for an employee to carry a gun, the cost to the employer will be ongoing and could, in the event the employee remains with the employer exceed the licensing and training costs. It seems as much as anything the proposal attempts to cushion the up front costs to employers, particularly if an employee leaves his employer after a relatively short period of time. I consider that concern to have been addressed by the reimbursement to be made to employers on the basis of the approach in Clause 17 of the award.

The parties are requested to prepare a draft order for consideration by the Commission. The operative date will be from the first full pay period to commence on or after 20 June 1994. That date should provide ample opportunity for the ramifications of this decision to have been made public to employers in the security industry and recognises that additional costs, where there is a requirement for an employee to carry a gun, will be required to be met by employers. I also consider the operative date to be fair and reasonable having regard to the not insignificant time it has taken to finalise this matter and the opportunity provided to employers to seek amendments to the Guns Act legislation. Order

R K Gozzi
COMMISSIONER

Appearances:
Mr K. O'Brien for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch.
Mr T. Abey with Mr T. Edwards, Mr D. Weir, Mr J. Alexopoulos and Mr S. Gates for the Tasmanian Chamber of Commerce and Industry Limited.

Dates and Place of Hearing:
1993.
Hobart:
April 5
June 15
August 19;
1994.
March 31.

1 Transcript p.10
2 Ibid.
3 Transcript p.86
4 Transcript p.93
5 Transcript p.99
6 Transcript p.100
7 Ibid.
8 Transcript p.112