T9325
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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 - emergency response officers - work value principle - level 4 - operative date ffpp 22 March 2001 REASONS FOR DECISION On 11 December 2001 an application was lodged by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch, pursuant to Section 23 of the Industrial Relations Act 1984, to vary the Security Industry Award. This application seeks to vary Clause 7 of the Award by inserting the following words in the definition of "Security Officer - Level 5":
The application was heard on 30 January 2001, with on-site inspections at Pasminco immediately followed by formal evidence and submissions. Mr P Tullgren appeared for the applicant and Mr P Mazengarb represented the Tasmanian Chamber of Commerce and Industry Limited (TCCI). The following witnesses gave evidence:
As the current holder of the contract, Chubb is required to provide a range of services for Pasminco. These services are described in the contract1 and embrace static and mobile patrol services, emergency and first-aid services. It was common ground that many of the duties performed are typical of security officers generally and are comfortably accommodated in the existing classification structure. These duties were well summarised by Mr Mazengarb as follows:2
The focus of this application relates to "emergency response" duties. The contract requires Chubb to provide two "licensed, trained and uniformed Emergency Response Officers to be on the site on duty at all times". The Emergency Services component of the contract are defined as follows:3
In addition the contract requires the provision of First-Aid Services and Fire, Rescue and Emergency Training. Whilst security services at Pasminco had been outsourced for at least 10 years, Mr Tullgren contended:4
The thrust of Mr Tullgren's application was that these "emergency response" duties had never been contemplated in the existing Award structure and that it was entirely consistent with the Public Interest that this be remedied through the Work Value principle. Pasminco has a comprehensive documented Emergency Response Plan5. Section 1 of this identifies the purpose of the document in the following terms:6
The document defines the key players in any emergency situation including the Response Coordinator, Warden[s], and the Emergency Response Officer. The Emergency Response Officer is defined as "Specially trained personnel who will assist the Response Coordinator and Emergency Commander in the performance of their duty". The specific responsibilities of the Emergency Response Officer are identified as:
The evidence of Mr Patchett went in some detail to the duties which came under the broad heading of emergency response. These duties can be summarised as follows:
Whilst it was common ground that the Response Coordinator held the ultimate responsibility for the overall management of an emergency, a recurring theme in Mr Patchett's evidence was that the Emergency Response Officers needed to exercise considerable judgement and discretion in making an assessment as to the appropriate response in any given situation. Training and Qualifications According to the uncontested evidence, Emergency Response Officers are required to hold the following qualifications:
All of the above training courses are mandatory. There was also evidence that some Emergency Response Officers have completed training in Emergency Control Organisation, Heavy Manufacturing Industry Generic Induction, and L. P. Gas Decanting. However it was not clear whether these latter training programs are mandatory. In addition Emergency Response Officers are required to undertake all departmental induction programs on a 12-monthly basis. Frequency of Emergency Incidents During the hearing a considerable amount of evidence was directed to the issue of the amount of time directed to emergency response duties as distinct from "normal" security functions. The following statistical information provides a "feel" for the incidence of emergency or quasi emergency situations:
The evidence of Mr Milling was that there had been eight incidents in the previous 12 months whereby external "combat agencies" were called to the site.13 The differing time frames involved makes it difficult to rationalise this against the evidence of the applicant although the overall picture is reasonably clear. Asked to put a percentage on the work which could be designated as "emergency response", Mr Milling said:14
In response to a similar question, Mr Patchett said he would not like to put a figure on the amount of time spent on emergency work. Findings This application is pursued under the Wage Fixing Principle dealing with Work Value Changes. Whilst it would be wrong to conclude that the work under consideration is new, I am quite satisfied that the "emergency response" aspects of the duties have never been subject to a proper assessment in terms of an appropriate wage level. It follows that whilst the traditional security role is clearly contemplated within the existing classification structure, the same cannot be said for the emergency response role. The changes to be measured in this assessment fit comfortably inside the earliest datum point available under principle 8.3, namely the second structural efficiency adjustment arising from the October 1989 State Wage Case decision. I was informed that the existing employees are paid a composite hourly rate based on the Security Officer - Level 2. The question of a composite rate is a matter for the parties. I can only concern myself with the appropriate level in the Award. Principle 8.2 states as follows:
It was on the basis of this principle that Mr Mazengarb submitted that any upward adjustment should be expressed as an allowance, payable only when emergency response duties are performed. In support of this position, Mr Mazengarb pointed to the uncontested reality that, for much of the time, the employees subject to this application are engaged on relatively routine security duties. This argument has considerable force. It must, however, be considered in the context of the particular circumstances applicable at the Pasminco site. Considerable guidance can be found in the actual contract, clause 2 of which states:15
This terminology suggests to me that in the eyes of the principal, the personnel involved are there first and foremost to respond to emergencies, notwithstanding the fact that for much of the time they are engaged on duties other than emergency response. Mr Tullgren submitted:16
And later:17
The mandatory training and manning requirements of the principal, together with the pivotal role of the Emergency Response Officers in the Emergency Response Plan, leads me to accept the submission of Mr Tullgren in his opposition to the concept of an allowance. I am quite satisfied that the level of mandatory training, coupled with the skill, judgement and discretion exercised, warrants a wage rate higher than that of a Security Officer - Level 2. I am not, however, prepared to accept the application as stated which seeks the Level 5 classification. This level contemplates a security officer responsible for the coordination of the work of other officers working in a team environment in a central station. Whilst it is not possible to make direct comparisons, in my view the Level 5 classification is intended to cover senior security officers with supervisory responsibilities as distinct from a "hands on" operative role. Having regard for the totality of the evidence and argument presented, I conclude that the appropriate rate for the Emergency Response Officers is that equivalent to the Security Officer - Level 4, and I decide accordingly. Given the emphasis on the first-aid role at Pasminco, there is also need for a consequential amendment to Clause 16 - First Aid Attendant. This will avoid double counting and is consistent with the submissions of the parties. This variation is effective from the beginning of the first full pay period to commence on or after 22 March 2001. The Order is attached.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit R1 |