T9129
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union - SECURITY INDUSTRY AWARD
Award variation - Clause 7 - definitions - special constable - application granted - award varied - operative date 7 November 2000 REASONS FOR DECISION On 27 July 2000 an application was lodged by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the applicant), pursuant to Section 23 of the Industrial Relations Act 1984, to vary the Security Industry Award. When the application came on for hearing Mr P Tullgren appeared for the applicant and Mr P Mazengarb, together with Mr D Milling represented the Tasmanian Chamber of Commerce and Industry Limited (TCCI). This application is pursued under the Work Value principle. In essence the applicant seeks an assessment of the work of "special constables" and in particular as it relates to the provision of security services within the Magistrates Court. I was advised that there is a growing trend for Government agencies to contract out security work formerly performed in-house or by the Police. In the case of the Magistrates Court, security services had been previously provided by the Police but in recent years had been contracted out to the private sector. The security officers performing this role are appointed as "special constables" pursuant to Section 22 of the Police Regulation Act 1898. The application seeks an award variation, the effect of which is to classify Special Constables at "not less than" a "Security Officer - Level 3". At the request of the applicant inspections of the Hobart Magistrates Court took place immediately prior to the commencement of the hearing. Evidence was called from Mr William Archer, a person with 13 years' experience as a security officer. Mr Archer had been employed in the Hobart Magistrates Court as a Special Constable for the past nine years. Prior to that Mr Archer had been engaged on patrol work, static guard and control room work. The requirements of security officers is set out in a document prepared by Justice Tasmania and titled "Magistrates Courts - Security Services".1 This reads as follows:
As previously stated Special Constables are created by virtue of Section 22 of the Police Regulation Act 1898. In this case the relevant Instrument of Appointment is signed by the Commissioner of Police and states that the individual is appointed:
Section 26 provides, in effect, that the powers, authorities and privileges of Special Constables are the same as those for constables in the Police Force. There was some debate during the hearing as to the extent of the jurisdiction of Special Constables. I am satisfied that, insofar as we are concerned with the provision of security services within the Magistrates Court, the duties and responsibilities of Special Constables are identical with that of Tasmania Police constables when they were providing the service. The question of the jurisdiction [if any] of Special Constables outside the purview of the Court system has no bearing on my consideration of this matter. Potentially at least, Special Constables could be required to provide security services for the Courts of Hobart, Gagebrook, Huonville, New Norfolk, Swansea/Triabunna, Campbell Town, Fingal, George Town, Oatlands, Scottsdale, St Helens, Westbury, Whitemark, Burnie and Devonport. Mr Tullgren submitted that an important element of the responsibilities falling to a Special Constable is the power of arrest. He referred to a 1986 High Court judgement2 which observed, in relation to the power of arrest, as follows:
Mr Tullgren submitted that this power is markedly different to that of a citizen's arrest in that it may be exercised on a "reasonable suspicion that a person has committed a felony ... and is not required to show that the offence has actually been committed which is a cardinal legal difference between the right of citizens arrest and the right of arrest that Mr Archer and other Special Constables occupy".3 During his evidence Mr Archer described the environment that exists in the Courts in the following terms: 4
According to the evidence, Special Constables have hitherto been classified as a Security Officer Level 1. Through the evidence and submissions, Mr Tullgren's contention that Level 3 is the appropriate classification level can be summarised by reference to the following responsibilities and environmental considerations.
Through the evidence and submissions Mr Tullgren sought to demonstrate that the responsibilities and exercise of discretion required by Special Constables was significantly in excess of that required for Security Officers Levels 1 and 2. In his evidence Mr Archer said that as a mobile patrolman, in the event of suspected forced entry, his instructions were to advise the control room, observe and wait for the police to arrive. He contended that whilst there was a risk associated with being a mobile patrolman, it was "... nowhere near as much as at the courts".5 In response to a question as to whether there is any valid comparison between the work in the courts and the work of a mobile patrolman, Mr Archer responded, "No, they're worlds apart".6 Mr Tullgren contended that a static guard does not have the legal power of restraint, arrest or detention. "They do not involve the use of force or coercion or escorting convicted persons who may themselves be dangerous or in an agitated state".7 Mr Tullgren submitted that the key difference between a Level 1 and Level 2 Security Officer was that the latter involved mobile patrols in vehicles. "The tasks are not ones that have a significant level of judgement attached, in that the emphasis is on response".8 Mr Tullgren contended that a Security Officer Level 3 required the exercise of a higher level of judgement and discretion and this, coupled with the requirement to resolve difficult situations, meant that Level 3 was the appropriate classification for persons performing duties of Special Constables. In response Mr Mazengarb indicated that the TCCI opposed the claim. He asked the Commission to bear in mind that the people who are appointed Special Constables are security officers. It follows that the primary task of such officers is the security of individuals, precincts and properties. As such the security duties in the Magistrates Court would be familiar to them. He contrasted this with individuals working in unrelated fields who, understandably, would find the Court environment quite alien. Mr Mazengarb submitted that the work of Special Constables fell comfortably within the Level 1 "Indicative tasks". In particular, he referred to the following:
Mr Mazengarb put an extensive submission going to the limitations on the jurisdiction of Special Constables. It is however common ground that, within the confines of the Magistrates Court [however that may be defined], the responsibilities and duties of Special Constables are the same as that undertaken by Police Constables under the previous arrangements. My decision is limited to this position and, as such, it is unnecessary to explore Mr Mazengarb's contention further. Without in any way resiling from the TCCI's primary position of opposition, Mr Mazengarb did indicate that if the Commission was moved to grant anything, then Level 2 should be the upper limit. Finding The work performed by Special Constables within the Magistrates Court has hitherto never been the subject of a discrete assessment so far as wage levels are concerned. The work is covered by the common rule effect of the award yet the duties are not contemplated within the classification structure. As such I have no hesitation in concluding that this is an application which sits comfortably within the Work Value principle. Segmented to its component parts, a case can be made out, as Mr Mazengarb has done, to the effect that most of the duties of Special Constables fall within the Level 1 definition. This however would be an over simplification of the reality of the position. Perhaps the key aspect which distinguishes the role from the more basic work is that it is carried out in an environment whereby the people involved are there, by and large, against their will. This invariably leads to a tense situation which can turn hostile at any time. The threat of physical violence is ever present and because we are dealing with the security of prisoners, there is quite rightly little room for relaxation and even less tolerance of mistakes. Aside from the more physical aspects of the security task, I very largely accept the submission of Mr Tullgren as to the level of discretion and judgement required. Having considered all the evidence and submissions, I have concluded that the appropriate classification for Special Constables is that of a Security Officer - Level 3. It follows that the basic intent of the application is supported. I do however have some difficulties with the manner in which the application and draft order is framed. My decision in this matter is based on the evidence and submissions pertaining to Special Constables within a judicial environment. It is possible that Special Constables might be appointed in a slightly different, but none-the-less comparable role and in such circumstances Level 3 would be appropriate. It is also possible that a Special Constable might be appointed to a role which is not even remotely connected to that which is currently before the Commission. As the draft Order is framed, Level 3 would be picked up by default, irrespective of whether an objective assessment would show such an outcome to be either too high, or indeed too low. My decision is to grant the application in the form of the attached Order. The operative date shall be the beginning of the first pay period to commence on or after 7 November 2000.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A7 |