The United Workers’ Union (UWU) lodged an application pursuant to s158 of the Fair Work Act 2009 (FW Act) seeking that the Fair Work Commission (the Commission) exercise its power under s157(1)(a) of the FW Act to vary the Security Services Industry Award 2020 (Security Award). The UWU sought to amend the ‘Ordinary hours and roster cycles’ clause of the Security Award with the intention that an employer “cannot arbitrarily allocate overtime hours within a roster cycle regularly and systematically to hours where the overtime penalty is absorbed within another penalty”. The UWU sought to eliminate through its application, “a rostering practice of arbitrarily labelling Saturday and Sunday hours, often early in a roster cycle, as overtime hours when the roster requires an employee to then work hours in excess of ordinary hours labelled as ordinary hours (‘the Practice’).”

We argued that the UWU’s application sought that the Commission depart from extensive judicial consideration of the Security Award and the various decisions of the Commission and Federal Court permitting ‘the Practice’. It was submitted that UWU’s proposed variation was unnecessary, given that employees have the right under s62(2) of the FW Act to refuse to work unreasonable overtime. Further, the modern award system generally permits overtime to be worked when other penalties apply without any prohibition or additional penalty.

The Full Bench of the Commission dismissed the application by UWU noting that the amendment was not necessary to meet the modern awards objective, which is to ensure modern awards provide a fair and relevant minimum safety net of terms and conditions.

The background to the application

The background to the application was litigation between the UWU and Wilson Security. The litigation concerned whether an employee, who is rostered to work for more than the maximum number of ordinary hours, only starts to work overtime for the purposes of the payment of overtime loadings once the employee has worked the full range of ordinary hours, and not before.

The Federal Court found that the Security Award gave Wilson Security discretion when it came to rostering arrangements and therefore, overtime payments. This was because the Security Award did not contain any express provisions restricting the exercise of Wilson Security’s power. It was open to Wilson Security to choose the day on which a roster is to begin and decide when overtime hours can be included in the roster. UWU appealed the decision, however, the Full Court rejected the UWU’s contention that overtime meant hours worked after the prescribed number of ordinary hours had been completed.

The Full Court stated:

“[30] Properly considered, “overtime” means no more than it states and has been long understood on the authorities referred to above – over, or more, than ordinary hours, in relation to the period of time for which ordinary hours apply. The chronological limitation Mr Davis seeks to impose is the product of historic usage and application, rather than inherent meaning. Even that usage and application does not necessarily support the appellants’ argument. It is an amount of time that is over the ordinary hours, not necessarily after the ordinary hours, even if it more commonly, or even invariably, takes place after those ordinary hours will be, or have been, worked.”

Given that the UWU’s litigation against Wilson Security had failed on the basis that the Security Award did not expressly prohibit ‘the Practice’, the UWU sought to amend the Security Award to limit the triggering of overtime to time in excess of the ordinary hours prescribed for each roster cycle and not otherwise.

The decision of the Full Bench of the Commission

The FWC determined that the UWU’s case to amend the Security Award was without merit, for six reasons:

  1. It noted the decision of the Federal Court in the Wilson Security case to reject the UWU’s contention that the ordinary or traditional industrial concept of overtime involves hours worked after the completion and not merely in excess of the prescribed number of ordinary hours, and advised that it could not identify any proper basis to revisit that issue in the present proceedings
  2. The Federal Court decisions in the Wilson Security case had not reversed or upset a long-established industrial practice, rather the large majority of employers have always taken the approach, where possible, of rostering overtime on the Sundays falling in a roster cycle in order to minimise the payment of penalty rates
  3. Third, the UWU did not advance any workable proposal by which all overtime could be allocated to the end of the roster. The UWU accepted that, in order for the roster to provide for a minimum of 7.6 ordinary hours per day, it would be necessary to manipulate the rostering of overtime so that it was spread over the last few days of the roster. This would not be consistent with its own conception of overtime, since this would still require overtime to be rostered before the exhaustion of all ordinary hours.
  4. Fourth, what it stated that what is proposed by the UWU would involve a wages cost to employers outside of and in addition to annual wage review increases of ~4% , causing further competitive disadvantage to those employers who comply with the award
  5. Fifth, the UWU did not articulate a proper basis for the proposition that the relevant provisions of the Security Award are such as to result in it not achieving the modern awards objective in s134(1) of the FW Act
  6. Sixth, the contention that, because the provisions of the Security Award permit ‘the Practice’ to occur, the right under s62 of the FW Act, to refuse to work overtime if unreasonable, is in some way excluded, was rejected. The FWC stated that the right applies no matter how the overtime is allocated across the roster.

As such, for the above six reasons, the Full Bench noted that it was not satisfied that the variations to the Security Award sought by the UWU, or any variations to the relevant provisions of the award, are necessary to meet the modern awards objective, and the UWU’s application was dismissed.