Federal Court of Australia

Wilkinson v Wilson Security Pty Ltd (No 3) [2024] FCA 705

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings as against the second respondent are dismissed.

2.    There be a case management hearing as to the future conduct of the proceedings as against the first respondent on a date to be fixed upon request by the applicant or the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    From 14 April 2015 until 22 July 2021, Mr Peter Wilkinson worked for Wilson Security Pty Ltd as a security officer. For the period up until 11 April 2016, Mr Wilkinson was employed as a casual employee. Thereafter, he was a full-time employee. His place of employment was a site operated by Woodside Petroleum Ltd on the Burrup Peninsula in the Pilbara region of Western Australia. Wilson Security was contracted to provide services to Woodside at the site. During the period of his employment, Mr Wilkinson lived in Perth. His employment was on a fly-in, fly-out or FIFO basis.

2    Mr Wilkinson claims that Wilson Security contravened the Fair Work Act 2009 (Cth) in a number of respects arising from the circumstances of his employment. He also claims that Mr Jose Canadas, who was employed by Wilson Security as a facilities protection manager during much of the relevant period, was an accessory to many of the contraventions alleged against Wilson Security.

3    Most of the alleged contraventions take the form of claims that Wilson Security contravened the terms of the applicable modern award and thereby contravened s 45 of the Fair Work Act (which provides that a person must not contravene a term of a modern award). It is common ground that the award that applied in the early part of Mr Wilkinson's employment was the Security Services Industry Award 2010 (2010 Award) and that towards the end of his employment it was the Security Services Industry Award 2020 (2020 Award) that applied (together, the Awards).

4    Some of Mr Wilkinson's claims are also couched as alleged contraventions of s 323(1) of the Fair Work Act which provides that an employer must pay an employee in relation to the performance of work 'in full', 'in money' and 'at least monthly'. As to those allegations, the position of Wilson Security is that s 323(1) is concerned with the mode and frequency of payment by an employer of amounts that the employer has identified as payable. So, on its case, if an employer has failed to identify and pay an amount as payable then that conduct may amount to a contravention of another provision of the Fair Work Act but it is not a contravention of s 323(1).

5    There are also claims concerning alleged breach of provisions that relate to the provision of pay slips and the keeping of relevant records by Wilson Security. Section 536(1) provides that an employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work. Section 536(2)(b) provides that the pay slip must be in the form prescribed by regulations and include any information prescribed by regulations. The relevant prescription has been made by Subdivision 2, Division 3 of Part 3-6 of the Fair Work Regulations 2009 (Cth) (Regulations). It includes a requirement that the pay slip must specify 'any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement' (see reg 3.46(1)(g)). An employer also must not give a pay slip that the employer knows is false or misleading (see s 536(3)).

6    Up until 30 June 2016, Mr Wilkinson worked a three-week roster being two weeks on and one week off. From 1 July 2016 until the end of his employment in 2021 Mr Wilkinson worked a four-week roster being two weeks on and two weeks off. When he was rostered on to work he was required to work 14 consecutive 12-hour shifts with a 12-hour break in between each shift. Each work day he travelled by car from accommodation arranged by Wilson Security for its FIFO employees to his rostered place of work. The car was provided by Wilson Security.

7    Mr Wilkinson makes the following allegations and advances the following claims:

(1)    by reason of the rostering arrangements that applied during Mr Wilkinson's employment, Wilson Security contravened the long break provisions in the Awards by providing only one continuous long break in each roster cycle;

(2)    by reason of the rostering arrangements, Wilson Security failed to meet requirements in the Awards that provided that employees must not work more than 48 hours of ordinary time without a long break of at least 48 continuous hours;

(3)    by directing Mr Wilkinson to arrive at work 15 minutes before his rostered start time, but only paying him from his rostered start time, Wilson Security contravened s 323(1) by failing to pay Mr Wilkinson in full in relation to the work performed by him;

(4)    by directing Mr Wilkinson to arrive at work 15 minutes before his rostered start time, Wilson Security directed Mr Wilkinson to work in excess of his rostered shift contrary to the Awards;

(5)    by requiring Mr Wilkinson from 22 March 2016 to complete vehicle prestart checks and paperwork before departing by car from his accommodation, Wilson Security required Mr Wilkinson to commence his employment 45 minutes before his rostered start time but only paid him from his rostered start time, thereby contravening s 323(1);

(6)    by requiring Mr Wilkinson from 22 March 2016 to complete vehicle prestart checks and paperwork before departing by car from his accommodation, Wilson Security required Mr Wilkinson to commence his employment 45 minutes before his rostered start time and thereby directed Mr Wilkinson to work in excess of his rostered shift contrary to the Awards;

(7)    by failing to provide an unpaid meal break of at least 30 minutes during each rostered shift, Wilson Security contravened the meal break provisions in the Awards;

(8)    by failing to provide a paid rest break or breaks of 30 minutes in total during each rostered shift, Wilson Security contravened the rest break provisions in the Awards;

(9)    by paying Mr Wilkinson as a Level 2 Security Officer when he was undertaking the duties of a Level 4, alternatively Level 5, Security Officer, Wilson Security contravened the classification provisions in the Awards and failed to pay Mr Wilkinson in full for the work performed by him;

(10)    by rostering Mr Wilkinson to work 12-hour shifts which started at 5.00 am or 5.00 pm (with the consequence that every shift included part of the period between midnight and 6.00 am), but not paying a permanent night shift allowance (and instead only paying a regular night shift allowance), Wilson Security contravened the night shift allowance provisions of the Awards;

(11)    Wilson Security failed to comply with provisions in the Awards which required the employer to prepare and post a roster showing the rostered hours of work;

(12)    by only showing an hourly rate of pay and not detailing amounts paid which were loadings, allowances, penalty rates or other separate entitlements, Wilson Security failed to provide pay slips with the information that was required by the Regulations;

(13)    by failing to correct and update pay slips when correcting errors in earlier payments, Wilson Security failed to comply with provisions in the Regulations that required an employer to correct a record that the employer was required to keep;

(14)    by failing to break down back pay amounts at the time they were paid to Mr Wilkinson, Wilson Security failed to comply with the provisions in the Regulations concerned with pay slips; and

(15)    by providing pay slips which identified certain amounts by reference to particular codes and by failing to respond to inquiries about the meaning of the codes, Wilson Security provided information in pay slips that it knew was false or misleading, contrary to s 536(3).

8    In order to distinguish between separate aspects of the contraventions alleged by Mr Wilkinson and important respects in which his alleged contraventions rested upon distinct foundations, the above list does not correspond with the numbering adopted by Mr Wilkinson when presenting his case. However, it seeks to incorporate all of his claims.

9    Section 557A(1) of the Fair Work Act provides that a contravention by a person of a 'civil remedy provision' is a 'serious contravention' if (a) the person knowingly contravened the provision; and (b) the person's conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons. It is a provision that applies to conduct after 15 September 2017 (being the commencement date of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) which introduced s 557A(1)). The 'civil remedy provisions' in the Fair Work Act are identified in a table set out in s 539. Relevantly for present purposes, they include relevant breaches of s 45, s 323(1) and s 536(1), (2) and (3).

10    Of the allegations and claims listed above, Mr Wilkinson claims that each of (1), (2), (3), (5), (12) and (15) were serious contraventions by Wilson Security.

11    Further, Mr Canadas is alleged to be an accessory to the contraventions alleged at (1) to (8) (inclusive) and (11).

12    As to relief, Mr Wilkinson seeks: (a) an order that would require Wilson Security to give him corrected pay slips up until 18 December 2019; (b) orders requiring Wilson Security to pay any underpayment of wages (with interest); (c) an order directing his employment to be reclassified and for consequential back pay; and (d) orders for pecuniary penalties to be imposed.

13    By orders made on 15 August 2023, the issue of the quantum of any pecuniary penalty and the payment of that penalty is to be determined separately. Further, by orders made on 22 August 2023, the issue of the quantum of any order by way of compensation or damages is also to be determined separately and after the final hearing on all other issues. Accordingly, the parties did not present any submissions as to quantification of those amounts. I take the view that any issue of quantification of claims to amounts by way of back pay is also encompassed by these orders. Therefore, these reasons are not concerned with the quantum of any pecuniary penalty nor with the quantum of any order by way of compensation or damages or amounts of back pay.

14    Finally, I note that Wilson Security maintains that if there is to be any compensation or further back pay to Mr Wilkinson then, for various reasons, it is entitled to a form of setoff because it has already made payments by way of compensation or back pay to Mr Wilkinson. The final hearing proceeded on the basis that the merits of the pleaded claims of setoff would be evaluated in determining the quantum of any amount to be ordered by way of compensation or back pay. This was done because Wilson Security did not present its evidence as to relevant calculations until close to trial and, as a matter of practicality, it made sense to identify which, if any, of the claims made by Mr Wilkinson were upheld before undertaking the calculations given the number of possible permutations.

Structure of these reasons

15    I will first deal with matters of general principle concerning the proper construction of awards. I will then address matters that were raised by Wilson Security as to the credibility of the evidence given by the witnesses for Mr Wilkinson, including Mr Wilkinson himself. I will then consider the credibility of the account given by Mr Canadas and other witnesses for Wilson Security. Then I will address each of the claims advanced by Mr Wilkinson and determine whether any of the alleged contraventions have been established. After that, I will deal with whether any of the contraventions as established might be properly characterised as 'serious contraventions'. I will then deal with the accessorial claims against Mr Canadas. Finally, I will deal with the terms of any relief.

General principles as to the proper construction of awards

16    In considering the principles to be applied in construing awards, some cases reference the principles that apply when interpreting commercial contracts: see, for example, Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [34] (Tracey J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [17]-[18] (Marshall, Tracey and Flick JJ); see also Hazell v Sewell [2021] FCAFC 76 at [21] (Rares J, Flick and Kerr JJ generally agreeing). However, awards are instruments which take effect pursuant to the Fair Work Act which governs the procedure for making and approving awards. Further, most of the parties to whom the provisions of an award apply will not have participated in the process by which the terms of the award are established. This will have a bearing upon whether circumstances known to parties involved in the negotiation of the award may be resorted to in construing the award: see the observations of Mortimer J (as the Chief Justice then was) in Polan v Goulburn Valley Health [2016] FCA 440 at [34].

17    To interpret an industrial award, the Court must first consider 'the natural and ordinary meaning of its words … read as a whole and in context': City of Wanneroo v Holmes (1983) 30 IR 362 at 378-379 (French J), quoted in King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123 at [40] (Collier, Katzmann and Jackson JJ).

18    The aim of this inquiry is to ascertain the objective meaning of the award, in light of its industrial and statutory context and purpose: see, for example, Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2], [13] (Gleeson CJ and McHugh J), [114] (Kirby J); and Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 at [22] (Siopis, Buchanan and Flick JJ).

19    Therefore, the language of modern awards is to be construed having regard to the whole of the terms of the award when considered in its industrial and statutory context. The Court adopts a purposive rather than 'narrow or pedantic' approach: Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); King at [42] (Collier, Katzmann and Jackson JJ).

20    Industrial instruments in general are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests: Ridd v James Cook University [2021] HCA 32; (2021) 274 CLR 495 at [17] (Kiefel CJ, Keane, Gageler, Gordon and Edelman JJ) citing City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57] (French J).

21    It has been said that an award should be construed in a way that 'contribute[s] to a sensible industrial outcome': Amcor at [96] (Kirby J); see also WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ); and Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182 at [9] (Reeves, Bromberg and O'Callaghan JJ). This is to say that an award will have an evident coverage and type of employment context to which it is to be applied and there must be due regard to the practicalities posed by that evident context when construing the terms of the award. The Court approaches the terms of an award presuming that they are intended to be effective: Hay Point Services at [20] (Reeves, Bromberg and O'Callaghan JJ).

22    An award should generally be construed consistently with the purposes and objects of the Fair Work Act: see, for example, Amcor at [102]-[103] (Kirby J); and Hay Point Services at [17] (Reeves, Bromberg and O'Callaghan JJ).

23    Otherwise, it appears that the extent to which extrinsic material can be relied upon to construe an award is not entirely settled: Soliman v University of Technology, Sydney [2008] FCA 1512 at [84] (Jagot J). It is likely that the history or development of particular clauses (and expressions) may be taken into account and arguably provide valuable context: Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); see also Amcor at [140] (Callinan J). That is to say, matters of historical context may be resorted to in order to support a conclusion that a particular settled historical meaning has been adopted in the award. This context may include '… documents with which [the award has] an association' and '… the ideas that gave rise to an expression in a document from which it has been taken': Short at 518 (Burchett JJ) quoted in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [53] (French J).

24    However, it has been emphasised that an award should primarily be understood by reference to its language: King at [43] (Collier, Katzmann and Jackson JJ); City of Wanneroo v Holmes at 380 (French J). For example, in King, Collier, Katzmann and Jackson JJ write that:

… the texts of modern awards are widely available to members of the public and should be reasonably capable of being understood and implemented by participants in the relevant industry by reference to the language of the award itself, without having to delve into the pedigree of the instrument. That is especially so where, as here, non-compliance with an award can expose a person to pecuniary penalties …

25    An award is an 'instrument' made by an authority and is, therefore, subject to the Acts Interpretation Act 1901 (Cth): City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [52] (French J); see also s 46(1)(a) Acts Interpretation Act. I note that 'fair work instruments' under the Fair Work Act are not 'legislative instruments': reg 6 of the Legislation (Exemptions and Other Matters) Regulation 2015 (Cth); s 12 of the Fair Work Act.

26    The process for approval and revision of modern awards requires consideration of their terms by the Fair Work Commission. Hearings may be conducted in which competing positions are considered and reasons may be published by the Commission. Those publicly available reasons reveal contextual matters concerning the text that came to be approved for inclusion in the award. In my view, information of that kind is relevant extrinsic material that may be used to ascertain the objective meaning of the Awards.

The witnesses for Mr Wilkinson

27    Mr Wilkinson gave clear and convincing evidence. At times he resisted accepting propositions that were put to him in cross-examination based upon his insistence upon the significance of particular terminology. In that way, it might be said that he had an eye to the case that he was seeking to advance. However, his evidence on those occasions did not suggest that he was crafting his evidence to suit his case. Rather, he was concerned to be precise given the claims that he sought to advance based upon his view as to the meaning of the Awards. He made many concessions during his evidence as to matters that supported the case being advanced by Wilson Security. For example, he made concessions to the effect that there was no direction given to him about the use of company vehicles and to the effect that once handover was complete he was usually allowed to leave even though the rostered end time for his shift had not been reached. He made concessions about occasions when there might be a 'rush hour' at certain times and other times not a lot of people working at the relevant part of the site where Mr Wilkinson was deployed to work. He was candid about the process he had used to determine travel distances that he travelled to work by car from the accommodation camp arranged by Wilson Security. He accepted that the time for a handover could quite possibly have been for two minutes and he might have left work as soon as the handover was completed even though there was some time until the rostered end of shift. He accepted that as to the direction requiring attendance 15 minutes before the start of a shift, sometimes the time when he arrived would be 12 minutes before or 10 minutes before but said that he always did his best to be there at least 15 minutes before the rostered start time for the shift. Subject to what is said below concerning his evidence about certain written records, I accept his evidence as reliable.

28    Mr Wilkinson's evidence questioned the accuracy of certain daily records kept of activities undertaken by the security officers. In particular, he expressed the view that the start and finish times in those records were manufactured. He expressed that view when being cross-examined about a record prepared in 2015 (which was well before he raised issues with Wilson Security about the matters that are the subject of the proceedings). I also formed the view that at other times Mr Wilkinson went out of his way to find reasons why the records may be questioned. I do not accept those aspects of his evidence as having an adequate foundation. I consider them to be a manifestation of his frustration with what he considered to be an attempt to attribute a degree of accuracy to the records that was inconsistent with his experience of the way in which they were maintained on a day-to-day basis. Whilst I accept that there were reasons why the records may not be entirely accurate (including because the daily running sheet record was required to be submitted a considerable time before the end of a shift and therefore, to that extent, recorded what was expected to occur), I do not accept that the records were falsified in any way or are of no assistance.

29    In the result, as I explain below, on the main issues there was a considerable degree of consistency in the account given by all witnesses as to those aspects of the day-to-day activities of security officers when working for Wilson Security at the Woodside site over the relevant period that are relevant for present purposes. The real dispute was not as to facts but as to the legal conclusions that followed from those facts.

30    Three other former employees of Wilson Security were also called by Mr Wilkinson to give evidence in support of his case. They were Mr Stephen Corke, Mr Paul Hamilton and Mr Stephen Gardiner. They each provided affidavits and were cross-examined as to the circumstances in which the affidavits were prepared. Comparison between the terms of much of Mr Wilkinson's affidavit and the affidavits of the other three employees reveals that they contain evidence expressed in substantially the same terms, often being in identical terms save for a few word changes. Having regard to the extent to which the same language was used in the affidavits, I infer that they were not prepared independently. That is to say, each was drafted by reference to the same document and expressed evidence in substantially the same terms. Before considering submissions for Wilson Security as to the conclusions that might be reached as to the reliability of the evidence in those circumstances, it is necessary to provide some context.

31    The proceedings brought by Mr Wilkinson were initially advanced as representative proceedings which Mr Wilkinson sought to conduct on behalf of all employees of Wilson Security who worked at the Woodside site at the time he was employed by Wilson Security. Mr Wilkinson sought to conduct those proceedings by appearing in person as the representative applicant.

32    In 2022, I determined that Mr Wilkinson ought not be allowed to have the conduct of the representative proceedings by appearing on his own behalf and made conditional orders for the proceedings not to continue as representative proceedings: see Wilkinson v Wilson Security Pty Ltd [2022] FCA 756; and Wilkinson v Wilson Security Pty Ltd (No 2) [2022] FCA 1161. Later, legal representation was obtained for other employees to continue the representative proceedings. Mr Wilkinson elected to continue his own personal proceedings against Wilson Security. All of which is to explain that, at the outset, Mr Wilkinson was seeking to bring proceedings on behalf of all employees. Further, it was apparent from the evidence that Mr Wilkinson and the other three witnesses had been discussing amongst themselves their concerns with the way they had been paid and those discussions had started well before the proceedings were commenced. For employees to discuss grievances of that kind and consider the way they might be expressed is understandable.

33    However, in the course of the cross-examination of Mr Wilkinson and each of the other three employees who gave evidence at the hearing it emerged that there had been extensive communications between them about the claims they wished to make against Wilson Security when preparing their affidavits.

34    Mr Corke gave evidence that he drafted 'the bulk of' his own affidavit out of his own memory. But he also said that it was based on talking with Mr Wilkinson and other people. His evidence was that he and Mr Wilkinson were discussing and typing at the same time when preparing his affidavit. He maintained that he typed his own affidavit and he attributed the similarities to the fact that they were discussing and typing at the same time. He also explained how 'at the start' (which I take to be at the time the representative proceedings were being prepared) all four of them were 'sending emails around to each other to make sure no points were missed'. He said that some remembered some parts and some remembered others.

35    I do not accept Mr Corke's explanation of how his affidavit was prepared as being entirely frank. It does not explain why there are substantial parts of the affidavits of all four witnesses that are effectively expressed in identical terms.

36    In the circumstances, I find that the contents of the affidavit evidence of Mr Corke are not an independent account. Rather they record, in effect, a kind of joint account prepared after discussions in which he participated with Mr Wilkinson, Mr Hamilton and Mr Gardiner. I do not accept that it is a version that was drafted based upon his own independent recollection. Taking account of the evidence given by the other three as to the process by which the affidavits were prepared, it appears to be a version of events that was prepared in a collaborative way. It follows that to the limited extent that matters covered by the affidavit are contentious the evidence must be viewed with circumspection of a kind that allows for the way in which the evidence was prepared.

37    However, in my assessment, when Mr Corke was cross-examined about the relevant events, he gave his evidence in clear terms. Generally speaking, he was cooperative and made concessions. For example, he agreed that at the location known as BMF (one of four main work sites) things were much quieter. He agreed that most of the 'computer-based work' was done by the shift supervisor and the administration staff.

38    Nevertheless, in relation to the evidence of Mr Corke as a whole, I formed the view that he had an eye to the contentions that Mr Wilkinson was seeking to advance and that affected those aspects of his evidence that sought to describe the general day-to-day practice in relation to the taking of breaks by security officers.

39    Otherwise, I generally accept Mr Corke's oral evidence making due allowance for the matters I have identified.

40    Mr Hamilton explained that he worked with Mr Wilkinson in preparing his affidavit. He said that they were 'working together to recall certain events that happened during the course of employment'. He maintained that he wrote a good proportion of the affidavit himself. His explanation for the similarity between his affidavit and that of Mr Wilkinson was that they were talking together and came up with the form of words together.

41    When shown the respects in which his affidavit was identical to that of Mr Wilkinson's, Mr Hamilton persisted in maintaining that the words in his affidavit were his own words. When taken to the extent to which the same words were used in his affidavit as in the affidavit of Mr Wilkinson, he maintained that the account in his own affidavit was accurate but otherwise he was evasive as to answering the questions that were being put. In my view, those exchanges reflected adversely on the reliability of his affidavit evidence because he was not willing to concede that the language in the affidavits was similar when it was obviously the case that the language was similar. In general, I do not regard the contents of his affidavit to be his own account. I find that it is an account prepared by someone else, probably Mr Wilkinson, with which he has agreed.

42    As to the evidence that he gave when cross-examined I formed the view that he was keen to answer questions in a way that supported the case being advanced by Mr Wilkinson, especially in relation to questions that were based on the written records concerning arrangements for handover and breaks. Therefore, his evidence was to be considered with that aspect in mind. However, I did not form the view that his oral evidence was unreliable in the sense that he was seeking to give a false account.

43    Mr Gardiner gave evidence to the effect that his affidavit had been prepared in a context where there had been discussions between Mr Wilkinson, Mr Corke, Mr Hamilton and himself that had been ongoing for some time about concerns that they had with Wilson Security. He said that those discussions began when they were first told that they were owed substantial amounts by Wilson Security (which, as explained below, was in November 2019 well before proceedings were commenced in this Court). As to the contents of the affidavit, he said that the affidavit was not his own words but was based on information he had accumulated and was to 'mirror the concerns' and corroborate the evidence of Mr Wilkinson. He expected that there were many paragraphs in his affidavit that were relatively identical to paragraphs in Mr Wilkinson's affidavit.

44    In giving his oral evidence when cross-examined, Mr Gardiner was a relatively uncooperative witness. By that I mean that he was not prepared to simply answer a question when put. An example was an extended exchange about whether he was ever directed by Wilson Security that he must use the cars that were provided by Wilson Security as the means by which he travelled to work such that he would be disciplined if he did not. This was not a complicated question, but it had obvious significance for the claim that Mr Wilkinson was advancing about travel to work. I concluded that his reluctance to directly answer the question was because he could see its significance for the case. On the whole, I regarded his evidence as being influenced to a considerable degree by what he thought would support the case being advanced by Mr Wilkinson. By that I do not mean to say that he was being deliberately untruthful but rather the reliability of what he said has to be adjudged with that aspect in mind.

45    In the circumstances I have described, I do not accept the submissions advanced for Wilson Security to the effect that there was collusion for the purpose of preparing some form of false or inaccurate account between the four witnesses who gave evidence in support of the claims advanced by Mr Wilkinson. There was no basis established for a conclusion of that kind.

Mr Canadas and other witnesses for Wilson Security

46    At times, in the course of giving his evidence, Mr Canadas displayed personal animus towards Mr Wilkinson. Even allowing for the fact that he was being subjected to questioning by Mr Wilkinson who was appearing on his own behalf (and not through counsel), I formed the view that his answers were affected by his personal dislike for Mr Wilkinson. It resulted in answers that were expressed in emphatic and unqualified terms which, in certain respects, I was inclined to view as being overstated.

47    At times, Mr Canadas was flippant. When asked by Mr Wilkinson whether he had a basic understanding of matters relating to health and safety he responded: 'Wasn't very good at it, mate. Sorry'.

48    Nevertheless, giving due regard to these aspects of his evidence, I generally accept his account as reliable. In particular, I accept his evidence as to the nature and extent of his responsibilities within Wilson Security and his evidence as to the extent of his knowledge of the requirements of the relevant Awards. As to these matters his evidence was not challenged and they were matters that did not concern dealings with Mr Wilkinson.

49    Ms Andrea Pirozzi gave evidence. At the time of deposing her affidavit she was a systems admin and payroll officer for Wilson Security and had worked for Wilson Security for over six years in various payroll roles. She gave evidence about the pay slips that had been issued to Mr Wilkinson and the codes used on them. She explained how decisions in relation to what to include in doing payroll were made by 'HR' meaning the employees within Wilson Security responsible for matters concerned with human resources. Ms Pirozzi was unable to express a view as to whether there were particular award entitlements. Ms Pirozzi gave her oral evidence in a careful and considered manner. I accept her evidence.

50    Mr Christopher Barugh was also called by Wilson Security to give evidence. He worked for Wilson Security for 15 years but had retired by the time he deposed his affidavit. He began work for Wilson Security as an 'HR Advisor'. During the relevant period his responsibilities were related to safety investigations, risk assessments, assisting with health and safety components of tenders for new work, on-site health and welfare and conducting behavioural and compliance audits. Therefore, his responsibilities did not concern payroll. Nor did they concern determining the payment terms or conditions for security officers or being involved in the supervision of their work. From time to time, as part of carrying out the duties I have described, Mr Barugh travelled to locations where Wilson Security employees were working. In his affidavit evidence he said: 'I was required to attend [those locations] to observe and understand what was happening there from a health and safety compliance perspective, as well as to provide general health and safety advice and assessment, and to conduct health and safety audits'.

51    It emerged in cross-examination that Mr Barugh had not used the EBI system (a software system employed for access control and other security purposes at the Woodside site) and was not familiar with what was required to operate the system. Therefore, I do not regard his evidence concerning the nature of the work that was done by security officers working for Wilson Security at the Woodside site in relation to the EBI system to have been demonstrated to have a sufficient foundation for it to be of any real assistance. In relation to the arrangements concerning the use of cars to travel from camps to the Woodside site it was also apparent that Mr Barugh was unfamiliar with those arrangements because he first gave evidence that the pre-start checks were conducted at the Woodside site before travelling to the camp. Therefore, I do not regard his evidence as to those matters to be of any assistance.

52    Mr Barugh also gave evidence as to what occurred in relation to handovers and meal and rest breaks. Again, I regard this evidence to be of little assistance because Mr Barugh was only an occasional visitor to the workplace where Mr Wilkinson worked during the relevant period and it was no part of Mr Barugh's responsibilities to supervise any part of that work. For example, in his affidavit Mr Barugh said that the only requirement that Wilson Security imposed as part of its security business generally was 'to be at the Site in sufficient time to start the shift'. He then said that because of handover there was always some form of crossover 'but this was only brief'. He went on to give evidence about what he 'regularly observed' in relation to handovers. However, on his evidence he did not regularly observe the way in which handovers were conducted. He was only an occasional visitor and his responsibilities were focussed upon health and safety matters. As is explained below, his evidence as to what occurred in relation to handovers was contradicted by the available documentary instructions concerning handovers and the evidence of Mr Canadas. His evidence was barely referred to by Wilson Security in closing submissions and properly so in the circumstances I have described.

53    For the reasons I have given, I place little weight upon the evidence of Mr Barugh.

Claims (1) and (2): The long break provisions in the applicable Awards

54    As to long breaks, cl 21.4 of the 2010 Award provides:

(a)    An employee must be given separate long breaks of continuous time off work in each roster cycle as follows:

(b)    Regardless of the roster cycle, an employee on a roster cycle must not be required to work more than a total of 48 hours of ordinary time without a long break of at least 48 continuous hours.

55    Clause 14.5 of the 2020 Award provides:

(a)    An employee on a roster cycle of a length specified in column 1 of Table 3 - Long breaks is entitled to long breaks of continuous time off work in that roster cycle as specified in column 2:

Table 3 - Long breaks

(b)    The employer must not roster an employee on a roster cycle of any length to work more than a total of 48 ordinary hours without a long break of at least 48 continuous hours.

56    It can be seen that each of the 2010 Award and the 2020 Award deals with the number of breaks in a roster cycle. Although, only the 2010 Award refers expressly to the long breaks as being 'separate', both Awards specify the 'minimum number of [long] breaks' for each type of roster cycle and the length of each of those breaks. Both Awards also address the extent of ordinary hours that may be worked between long breaks.

57    By separate provision in the Awards there is a limit upon the hours that employees may be required to work in any 24-hour period. The Awards also specify the duration of an ordinary time shift. For example, the 2010 Award specifies that 'ordinary time shifts' for full-time employees must be limited to a maximum of 10 ordinary hours (with provision for the maximum to be 12 ordinary hours by agreement between the employer and a majority of employees in a particular establishment): see cl 21.2. There is also provision as to the ordinary hours to be worked in any week. The 2010 Award provides for the ordinary hours to be 76 hours within a roster cycle not exceeding two weeks: cl 21.1. There is an equivalent provision in the 2020 Award: cl 13.1.

58    In addition, as set out above, there is a provision in both Awards to the effect that an employee on any roster cycle must not be required to work more than a total of 48 hours of ordinary time before a long break. For that reason, Wilson Security accepted that for each roster cycle all hours worked beyond 48 hours must be paid as overtime. On that basis, back pay has been paid to security officers working for Wilson Security at the Woodside site. Wilson Security maintains that the payment of the back pay means that Mr Wilkinson has been remunerated on the basis that for each 14-day roster he worked 48 hours of ordinary time and 120 hours of overtime.

59    Of course, employees may be required to work reasonable additional hours above their ordinary hours (subject to any applicable restriction). They will be entitled to be remunerated for those additional hours at applicable overtime rates. Those rates may vary depending upon when they occur and how many hours are involved. The overtime provisions in the Awards allow for reasonable overtime and specify that an employee must not be required to work more than 14 hours (in a 24-hour period), including breaks to which the employee is entitled: cl 23 of the 2010 Award and cl 19.1 of the 2020 Award.

60    There was no claim made by Mr Wilkinson concerning the reasonableness of the extent of the additional hours that he was required to work by reason of the roster cycle that applied during the course of his employment by Wilson Security. Rather, as to Claim (1) his concern was as to the length of consecutive days he was required to work without a break. As to Claim (2) his concern was as to the amount of hours beyond 48 hours that he was required to work without a long break. As to other Claims, he contended that he should have been paid more based on what he was directed to do and the hours he worked. Therefore, even though Mr Wilkinson made no claim that the overall hours as rostered resulted in unreasonable overtime hours, the nature of the claims made were of that character because they concerned how long he had been made to work without a break of the kind required by the Awards.

61    As has been mentioned, until 30 June 2016, Mr Wilkinson worked a roster cycle of three weeks (two weeks on, one week off). Thereafter, he worked a four-week roster cycle (two weeks on, two weeks off). On each day that he was rostered to work, he was rostered for 12 hours (inclusive of meal and rest breaks).

62    Therefore, Mr Wilkinson's rostered hours in each two-week cycle were 168 hours, of which 48 hours were ordinary hours of work.

63    The case for Wilson Security was to the effect that it could conform with the long break provisions by providing for consecutive long breaks of the required duration. It claimed that it met the long break requirements because it provided more days off than were provided for by the Awards when it came to long breaks. It pointed to the fact that, as part of the three-week roster, Mr Wilkinson was entitled to a long break of seven days which was said to amount to three long breaks of two days plus an extra day. As each period of two days was a continuous period of 48 hours it was a long break that was 'separate' from the employee's rostered shift and there was no requirement that each of the 'separate' breaks could not be consecutive.

64    If the contentions for Wilson Security were to be accepted, then it could roster an employee on an eight-week roster to work 38 days (or about five and a half weeks) consecutively as long as it then provided 18 consecutive days of long break. Further, in the case of a four-week roster, it could roster an employee to work 20 days (or about three weeks) consecutively followed by eight consecutive days of break because that would meet the requirement for four long breaks of two days. That would be so even though the Awards expressly provide that where the long breaks are for three days then there must be three of them, making a total of nine days.

65    In context, it is plain that the long break provisions limit the extent to which an employer can require an employee to work consecutive rostered days without a long break. It is concerned with the frequency of long breaks as well as their duration. The 'continuous time off work' that is specified in each of the Awards is not simply a number of days for each specified length of roster cycle. Rather, it is both a number of breaks and a number of days for each break. Both requirements must be met. The case for Wilson Security would reduce the long break provisions to provisions which simply specified the number of days of a long break in a roster cycle. It is a construction that is inconsistent with the express language of the relevant provisions which refers to a minimum number of breaks and the use of the plural form 'long breaks' in the operative provision. It is also supported by the use of the term 'separate long breaks' in the 2010 Award together with the absence of any matter of context to suggest that the parties intended the long break provisions (which are otherwise expressed in the tables in each of the Awards in the same terms) to operate in a different manner in the case of the 2020 Award compared to the 2010 Award. The change in terminology in the 2020 Award appears to be explained by the fact that its foundational version was prepared as a 'plain language re-drafting of the [2010 Award]': see 4 yearly review of modern awards - Plain language re-drafting - Security Services Industry Award 2010 [2018] FWCFB 6755.

66    It was suggested for Wilson Security that a provision could easily have been inserted to make clear that the long breaks could not be contiguous if that was indeed the intention. However, that submission is premised upon the long break provisions taking a form which contemplates that possibility thereby inviting language of qualification to that effect if it was intended that long breaks could not be rostered contiguously. For reasons that have been given, the long break provisions do not contemplate such a possibility. Instead, they provide expressly for a minimum number of breaks, specifying those breaks both by number and duration. There is no real room in the language of the provisions for the construction for which Wilson Security contends. Therefore, there is no real foundation in the language for a submission of the kind advanced.

67    When there is regard to the rostering provisions in the Awards, the result would mean that employees undertaking work in the security services industry could be required to work very long hours over many consecutive days without a break. The coverage provisions in the Awards refer to the industry as including patrolling, protecting or guarding people or property, crowd, event or venue control, body guarding and traffic control incidental to those activities. It does not cover cash-in-transit protection or work in prisons, correctional or other detention facilities or relating to the installation or repair of electronic alarms or ATMs. Nevertheless, it is work of a kind that may be expected to require vigilance and attention for sustained periods. These are matters which bear upon the proper construction of the Awards.

68    It was further submitted by Wilson Security that its construction of the long break provisions was supported by the fact that the Awards applied to the provision of work by FIFO employees. It was suggested that a construction which required each long break to be separate would make it difficult to accommodate FIFO arrangements where security guards work. There are a number of problems with this submission.

69    First, as has been explained, the Awards apply broadly. The construction contended for would allow for rostering of a kind that would apply in many different circumstances. The construction must be one which has regard to the work to be undertaken by all employees covered by the Awards. Second, there is no evidence advanced of admissible contextual material to support the construction of the Awards by reference to the particular requirements of FIFO employment arrangements. Third, I am not persuaded that an application of the long break provisions on the basis that long breaks must not be continuous is inconsistent with FIFO employment. For example, a four days on, three days off roster would comply, as would a rolling four-week roster which was five days on and four days off with an extra day on in the first four weeks and an extra day off in the second four weeks.

70    There are also other industrial mechanisms by which different work arrangements may be put in place with approval of the Fair Work Commission. The availability of those alternatives is part of the context in which the Awards are to be construed.

71    It follows that Claim (1) by Mr Wilkinson must succeed. In relation to his employment, Wilson Security has not provided him with sufficient long breaks. He has been made to work for longer periods without a break than should have been the case (and would have been the case if Wilson Security had complied with the long break provisions of the Awards). It follows that Mr Wilkinson has established the alleged contravention of s 45 of the Fair Work Act that was the basis for Claim (1).

72    As to Claim (2), Mr Wilkinson submitted that after 48 hours of ordinary time worked there was an entitlement to a long break. He relied upon the language of the Awards that were concerned with the number of ordinary hours that may be included in a roster cycle of any length without a long break. As has been noted, the ordinary hours to be worked where a roster is operated are an average of 38 hours per week. However, Mr Wilkinson's submission fails to take account of the fact that the Awards expressly contemplate shift rosters with work hours of up to 14 hours in any 24-hour period. It is also possible for an employer to roster overtime.

73    In my view, the provisions concerning 48 hours of ordinary time before a long break is to ensure that a roster is not formulated which provides in a two-week roster say for 60 hours of ordinary time in the first week with a long break followed by a roster in the second week of say 16 hours of ordinary time and then a long break, but with no overtime. A roster of that kind would mean that an employee would be required to work long hours for part of the roster without receiving any overtime payments.

74    There was no suggestion that the roster in the present case was one which operated in that way. Although there had been a dispute in the past as to payment of overtime, by the time of these proceedings that issue had been addressed by the payment of back pay in relation to overtime (at least for so long as Mr Wilkinson was working as a full-time employee and not as a casual employee). The present issue did not concern whether there had been adequate overtime payments. It was concerned with whether there had been compliance with the long break provisions. That is to say, the case being made was that the amount and frequency of long breaks was inadequate, not that there had been inadequate pay for overtime.

75    For Mr Wilkinson it was submitted that after working four days of a typical 14-day swing, he was entitled to a long break and the requirement under his roster arrangements to work each of the following 10 days would mean that Wilson Security contravened s 45 of the Fair Work Act on each of those days for each of the times that he was rostered on to work.

76    The long break provisions in the 2010 Award were considered by Katzmann J in Sydney Night Patrol and Inquiry Company Limited t/as SNP Security v Pulleine [2014] FCA 385. In that case, the employee worked on a fortnightly roster and was paid overtime when he worked a shift of more than 10 hours or more than 76 hours in any two-week roster cycle: at [1]. He based his claim to overtime and a first aid allowance on the long break provisions. In a similar argument to that advanced by Mr Wilkinson in the present case, the employee had claimed that it was a contravention of the 2010 Award to require him to work more than 48 hours of ordinary time without giving him a long break and that that if he was required to do so then he was entitled to be paid at overtime rates.

77    Before Katzmann J, the employer, Sydney Night Patrol, accepted that if employees on a fortnightly roster were entitled to a long break after 48 hours of ordinary time worked in a week then overtime was payable. Sydney Night Patrol claimed that the long break provisions did not apply to employees on a fortnightly roster cycle: at [15]. At that time, the words 'Regardless of the roster cycle' did not form part of cl 21.4(b) of the 2010 Award. They were introduced by way of amendment after the dispute arose with Sydney Night Patrol.

78    In the course of reasoning as to why the prohibition on being required to work more than 48 hours of ordinary time with a long break of at least 48 hours applied to all employees, Katzmann J referred to provisions of the National Employment Standards which 'tend to reinforce the notion that all employees can expect to receive a long break or, as the learned magistrate put it, "a weekend", at the end of an ordinary working week or compensation (here, overtime payments) in lieu, and that that notion lies behind cl 21.4(b)': at [50].

79    Significantly, after considering the above and other matters bearing upon the proper construction of cl 21.4(b), Katzmann J expressed her final conclusion as to the meaning of the provision in the following terms at [52]:

In view of these considerations, there is no good reason to conclude that the Award was intended to deny a long break to employees working a fortnightly roster or to deprive those who work beyond the 48 hours of the appropriate overtime rate.

80    The expression of her Honour's conclusion in that way supports Wilson Security's position that the prohibition in cl 21.4(b) is not transgressed where the employer pays overtime. That is to say, the relevant Awards provide for a roster with an average of 38 hours of ordinary time per week. After that, time worked is overtime.

81    What cl 21.4(b) makes clear is that there is a limit on the averaging that can occur such that ordinary hours beyond 48 hours in any week must be paid at an overtime rate or, if overtime is not to be paid, the employee must be given a long break. In that regard the use of the term 'ordinary time' in the relevant provisions in the 2010 Award and in the 2020 Award is significant. It is not a provision that operates to curtail the possibility of a roster with reasonable overtime that conforms to the provisions of the relevant awards in relation to overtime and for which overtime is paid.

82    Of course, as has been explained, the separate requirements as to the minimum number of long breaks and their duration (as addressed in dealing with Claim (1)) must still be met.

83    It follows that Claim (2) fails.

Claims (3) and (4): Arrival before rostered start time

84    Mr Wilkinson advances Claim (3) as a contravention of s 323(1) of the Fair Work Act. He says that he worked more than the rostered time because he was directed to attend work before his rostered start time to conduct a handover. He says he was not paid for the additional time and therefore was not paid in full. Claim (4) is based upon the same facts but is to the effect that, contrary to the Awards, Wilson Security required Mr Wilkinson to work 15 minutes more than his rostered time. Both claims are to the effect that Mr Wilkinson worked an extra 15 minutes for each shift for which he was not paid. Claim (3) seeks to characterise the failure to pay as a contravention of s 323(1).

85    As has been noted, s 323(1) requires an employer to pay amounts payable to an employee in relation to the performance of work 'in full', 'in money' and 'at least monthly'. The first answer advanced by Wilson Security in defence of Claim (3) is that it is said to concern 'amounts payable to the employee' in the sense that they have been identified and accepted by the employer as being payable. The submission relies in part upon the terms of s 324(1) which allow an employer to deduct certain specified amounts 'from an amount payable to an employee in accordance with subsection 323(1)'. Its terms are said to imply that s 324(1) applies where there is an amount which has been identified and accepted as being payable to an employee because it refers to deduction from an 'amount payable'. In effect, the submission emphasises that an employer would not be seeking to make a deduction from an amount which the employer was not otherwise planning to pay. Therefore, so it is submitted, the provisions do not apply where there has been a failure to pay an amount in respect of which there is a genuine dispute.

86    Section 323 provides as follows:

(1)    An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a)    in full (except as provided by section 324); and

(b)    in money by one, or a combination, of the methods referred to in subsection (2); and

(c)    at least monthly.

(2)    The methods are as follows:

(a)    cash;

(b)    cheque, money order, postal order or similar order, payable to the employee;

(c)    the use of an electronic funds transfer system to credit an account held by the employee;

(d)    a method authorised under a modern award or an enterprise agreement.

(3)    Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.

87    Section 324 provides:

(1)    An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:

(a)    the deduction is authorised in writing by the employee and is principally for the employee's benefit; or

(b)    the deduction is authorised by the employee in accordance with an enterprise agreement; or

(c)    the deduction is authorised by or under a modern award or an FWC order; or

(d)    the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.

(1A)    However, an employer must not deduct an amount under paragraph (1)(a) if the deduction is:

(a)    directly or indirectly for the benefit of the employer or a party related to the employer; and

(b)    for an amount that may be varied from time to time;

unless the deduction, if it were a deduction referred to in subsection 326(1), would be a deduction made in circumstances prescribed under subsection 326(2) to be reasonable.

(2)    An authorisation for the purposes of paragraph (1)(a):

(a)    must specify:

(i)    for a single deduction - the amount of the deduction; or

(ii)    for multiple or ongoing deductions - whether the deductions are for a specified amount or amounts, or for amounts as varied from time to time; and

(aa)    must include any information prescribed by the regulations; and

(b)    may be withdrawn in writing by the employee at any time.

(3)    Any variation in a specified amount of a deduction must be authorised in writing by the employee.

88    In Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619, the High Court was concerned with the proper construction of s 470(1) of the Fair Work Act which provided that an employer 'must not make a payment to an employee' in relation to the duration of protected industrial action. The issue was whether the relevant section applied to the provision of accommodation to FIFO employees who engaged in protected industrial action when on location. The terms of s 323 were called upon to support a submission that 'payment' in s 470(1) refers to payment in money 'in conformity with s 323'. As to that contention, the High Court said at [45] (Crennan, Kiefel, Bell, Gageler and Keane JJ):

The … argument based on s 323 is not persuasive. The terms of s 323(3) acknowledge that an enterprise agreement may specify a method for the payment of 'the money' by a 'particular method' other than 'in money'. The reference in s 323(3) to 'the money' is a reference back to the prescription in s 323(1) of 'amounts payable to the employee in relation to the performance of work'. It is tolerably clear from the terms of s 323(3), and is confirmed by the Explanatory Memorandum which accompanied the Bill for the Fair Work Act 2009, that s 323(1) addresses the same mischief addressed by 'Truck Acts' as they had by then come to exist in each State, that is, that an employee's entitlement to payment for work might be compromised by an employer requiring the employee to accept some form of payment in kind of less value than the payment of money forgone. Section 323(3) expressly acknowledges that this mischief is not a concern where the provision is contained in an enterprise agreement.

(footnotes omitted)

89    'Truck' is an archaic English term derived from the Middle English 'trukken' meaning to exchange or barter. The relevant passage in the Explanatory Memorandum was as follows (at [1277]-[1278]):

This Division is about the frequency and methods of payment of amounts payable to an employee in relation to the performance of work and allowable deductions from such amounts.

Currently, these issues are dealt with primarily by State and Territory legislation. This has led to a patchwork of obligations for employers. The payment of wages provisions in this Division draw upon the protections that exist in State and Territory legislation to provide a simple, national scheme.

90    The various 'Truck enactments' originated in English legislation and have been described as establishing the obligation 'of uniformly paying the whole wages of artificers [that is, people involved in providing manual labour] in the current coin of the realm': Bristow v City Petroleum Ltd [1987] 1 WLR 529 at 532. For example, in Western Australia s 5 of the now repealed Truck Act 1899 (WA) required the entire amount of wages 'earned by or payable to any workman' to be paid to such workman in money. The focus of the legislation was upon the payment of wages that had been earned. The provisions of the legislation addressed the mischief by which employers purported to discharge the obligation to pay wages by providing goods or services 'in kind' and by making offsetting deductions from wages. As to the history of Commonwealth provisions addressing the same concern see the review of the Australian context by Dr Gabrielle Golding and Dr Mark Giancaspro, 'Why Can't I be Paid in Pizza? - Comparing s 323 of the Fair Work Act 2009 (Cth) and Consideration at Common Law' (2023) 50(2) University of Western Australia Law Review 1 at 3-6.

91    There appear to be two instances where single judges of this Court have given consideration to the meaning of s 323.

92    In Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878 representative proceedings were commenced seeking the payment of promised bonuses. The claim was advanced under s 323 of the Fair Work Act. The employer sought summary dismissal. Reliance was placed on the High Court's reasoning in Mammoet.

93    Buchanan J declined to dismiss the proceedings. His Honour reasoned in the following way (at [30]):

The ordinary language of s 323 is apt to identify, and provide for the enforcement of, an obligation to pay amounts which have become payable, as well as the more specific obligation to pay such amounts in full, in money and at least monthly (subject to the statutory exemptions which accompany the obligation). It does so by permitting the imposition of a civil penalty for contravention of the obligation.

94    His Honour then described the nature of the claim being made in the proceedings (at [31]):

The applicant does not rely on s 323 as a foundation for recovery of any underpayment. It relies on s 323 to establish breach of a civil remedy provision. Recovery of unpaid amounts is sought on a different statutory footing under s 545 of the [Fair Work Act], namely compensation for loss suffered as a result of contravention of a civil remedy provision.

95    Therefore, the case that seemed to be advanced by the Association was that if it was separately established that the bonuses should have been paid then there would be a contravention of s 323 in failing to pay the amounts as then found to have been payable. Buchanan J found that position to have 'direct support' in the reasoning of Jessup J in Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908: at [32]. At [33] Buchanan J quoted from parts of the reasoning of Jessup J in Murrihy, which parts proceeded on the basis that a failure to pay a commission entitlement would contravene s 323(1). In Murrihy, Jessup J found that the applicant had demonstrated that circumstances that gave rise to the payment of a 'bonus' had been met. On that reasoning, Buchanan J concluded that it could not be said that the application in the representative proceedings had no reasonable prospects of success: at [35]. His Honour also said (at [36]-[37]) as follows:

… it seems to me that I should approach the question of construction of s 323 in conformity with the views expressed by Jessup J. I should do so as a matter of comity in any event, but I also regard the language of s 323 as sufficiently wide to accommodate the present proceedings. I do not accept the more confined construction advanced by the respondents.

…

I accept that the applicant has standing to bring the proceedings and to seek a finding that there have been breaches of s 323 through failure to pay contractually obligated amounts (I say nothing about whether such a case will be made out factually).

96    Therefore, Buchanan J appears to have concluded that where there was a dispute as to whether an amount formed part of the amount that an employer was obligated to pay to an employee then a failure to pay that amount (as distinct from a refusal to pay the amount in money) was a breach of s 323. There was no suggestion in Murrihy or Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited that the employer was seeking to make payment other than in money or was seeking to make some form of deduction of a kind not referred to in s 324 rather than pay the employee in full. The dispute was not about the manner of payment, it was about whether there was an amount due. Given the context as described by the High Court in Mammoet, the distinction just described appears to be significant for the purposes of resolving ambiguity in the language used in s 323.

97    It was submitted by Wilson Security that the views expressed in Murrihy and Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited were in error and should not be followed.

98    I observe that the conclusions reached by Buchanan J (like the views expressed by Jessup J) were in the context of an application for summary dismissal where the only issue to determine was whether the claims as formulated under s 323 were sufficiently arguable to allow the case to proceed. Nevertheless, the reasoning of Buchanan J was carefully considered and was directed to the question which arises in the present case. A judge of this court should usually follow reasoning of that kind unless the judge is of the view that the reasoning is plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75]‑[76] (French J); and BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 283 FCR 97 at [62] (Allsop CJ, Moshinsky and O'Callaghan JJ). His Honour's reasoning is not to be departed from without a strong conviction of error that can be demonstrated by reasoning and a persuasion that notwithstanding the importance of the underlying principles of certainty, stability and predictability it is proper for one judge to depart from an earlier decision: Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 at [283]-[301] (Allsop P, Beazley and Basten JJA) (dealing with the principles in an appellate context).

99    Respectfully, for the following reasons, I am unable to agree with the conclusion reached by Buchanan J in Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited. It is a view that does not appear to have been applied in subsequent cases and, on my research, the issue has not been considered by a Full Court. Therefore, this is not an instance where it might be said that the fact that a particular view as to the meaning of a statutory provision has become established is a reason why it should not be departed from by another judge.

100    Section 323(1) is expressed as an obligation concerning the manner in which an employer 'must pay' the amounts described. Its focus is upon the manner of payment of 'amounts payable to the employee' not upon the extent to which there is an obligation which means that there are amounts which are payable. In effect, its operative prescription concerns the way in which payment should be made of particular types of payment obligations which it describes but otherwise assumes that those amounts have been identified as payable. The requirement that it imposes is that such amounts be paid in full, in money and at least monthly.

101    Arguably, there is an ambiguity as to whether the reference to 'amounts payable to the employee in relation to the performance of work' includes amounts that are in dispute such that there is a contravention of the provision if it is subsequently determined that they are amounts that are payable. However, as has been explained, there are other provisions in the Fair Work Act which express obligations of that kind. Whether there is an obligation to make a payment and, consequently, whether there has been a failure to perform that obligation is addressed by other provisions of the Fair Work Act. Relevantly for present purposes, as has been explained, s 45 makes it a contravention for a person to contravene a term of a modern award. Where a term of a modern award requires an amount to be paid then s 45 is still contravened if the employer disputes the existence of that requirement but the employer's position is not vindicated. The existence of such provisions is an important matter of context; as are the terms of the Explanatory Memorandum as explained by the High Court in Mammoet.

102    In those circumstances, in my respectful view, s 323(1) is concerned to ensure that the payments that are made by an employer to its employees for work done by them are made with appropriate frequency, are made without deduction and are not paid in kind. Although the section refers to amounts 'payable' to an employee, the operative requirement concerns the ways in which an employer 'must pay'. That is to say, the obligation that is imposed concerns the manner of payment where payment is being made of 'amounts payable… in relation to the performance of work'. It concerns how payments in the category of payments as described are to be made. Consequently, if an employer is making a payment to an employee of an amount that is not 'payable in relation to the performance of work' then s 323(1) does not apply.

103    So, an employer and an employee may be in dispute as to whether an amount is payable in relation to the performance of work. In such a case the point has not been reached where the employer is to make payment for the purposes of s 323(1). Or, an employer may have formed their own view as to what is payable but that view may be incorrect because the amount is too low. Likewise, in such a case, as to the extent of the employer's error, it is also the case that the point has not been reached where the employer is to make payment for the purposes of s 323(1). Therefore, in such cases, in failing to pay those amounts, the employer cannot be said to have breached the terms of s 323 because the statutory provision is not directed to whether there is an obligation to make payment; rather, it is concerned with the manner of payment where an employer is making payment for work done by the employee.

104    On the other hand, where an employer has identified an amount to be paid but withholds payment or pays only part or defers payment so that the obligation to pay monthly is not performed, then there is a contravention of s 323(1).

105    Conceivably, issues may arise as to whether an employer who wilfully ignores whether there is any payment obligation or fails to undertake any genuine consideration as to the amounts due to the employee or defers identifying the amount to be paid is, by that conduct, failing to pay as required by s 323(1). In such a case, the failure to pay will not be because of some explicable failure to identify an amount as being payable. Rather it will be because the obligation to pay at least monthly is not being met because, in such circumstances, the payment obligation is being unilaterally deferred by the employer. Therefore, it may amount to a failure to pay by failing to form a view as to what is payable. However, no case of that kind was advanced by Mr Wilkinson in the present case so that aspect can be left for when the occasion squarely arises.

106    In the present case, the complaint made by Mr Wilkinson does not concern the manner in which payment was effected by Wilson Security. Rather, it concerns a dispute as to whether there was an obligation to make a payment for work done by Mr Wilkinson. For reasons that have been given, s 323(1) is not contravened in a case of that kind, even if it now be concluded that there is an amount payable to Mr Wilkinson that has not been paid. That is because his complaint is not as to the way in which Wilson Security paid amounts to him. His complaint is about whether an amount was payable.

107    For those reasons Claim (3) fails.

108    I now turn to Claim (4) which is to the effect that Mr Wilkinson was directed to perform work before his rostered start time for which he was not paid contrary to the Awards.

109    As to ordinary time shifts, as has been observed, the relevant Awards provide that, for full-time employees, those shifts must be limited to a maximum of 10 ordinary hours, but there is provision for 12 hours per shift if certain conditions are met. There is also a requirement for each ordinary time shift to be separated by a break of at least eight hours: cl 21.3 of the 2010 Award and cl 14.4 of the 2020 Award. The issue between the parties did not concern these requirements. Rather, it concerned whether additional work had been undertaken for which Mr Wilkinson had not been paid. That is to say, the issue would have arisen irrespective of the length of the rostered shifts. The claim made was that additional work was required by reason of the directions given to attend early for handover and payment was not made for that work. By reason that the shifts were for 12 hours throughout the time of Mr Wilkinson's employment that meant that the issue was whether he was required to work more than 12 hours each shift. However, the contravention alleged was about having to work an extra 15 minutes each shift, not about having to work beyond 12 hours.

110    For Wilson Security it was submitted that the evidence of Mr Wilkinson was to the effect that the time of his arrival and departure varied. However, there was no real dispute that he was required to attend before the scheduled start time in order to conduct a handover. The time required for that to occur was the subject of evidence from a number of witnesses. Their evidence as to the time usually taken to undertake the handover was broadly consistent. It was to the effect that handovers took two to five minutes. It was also broadly consistent as to what occurred in relation to leaving site, namely once handover was complete and all those working the next shift had arrived then those who were completing their shift could leave and usually did so. I find that these arrangements pertained for the whole of Mr Wilkinson's employment.

111    There was also some evidence to the effect that, on occasions, handover was very short, perhaps as little as a minute. However, the claim made was not based upon the time actually taken on particular days in order to carry out what was required by way of handover but rather upon the existence of a requirement to be in attendance before the scheduled start time for each shift in order to carry out a handover. As handover occurred in the period at the end of the shift that was being completed and it was necessary for those from the next shift to be present, it followed that employees had to be present before the scheduled start time so workers from both shifts could be present at handover. As explained below, there was evidence which showed that Wilson Security required security officers to be present at least 15 minutes before the scheduled start time for each shift.

112    As to the handover, on 8 May 2015, the then facilities protection supervisor for Wilson Security at the Woodside site sent a staff email to all security officers including Mr Wilkinson. The subject heading was 'Shift Change Overs'. It said:

Hi All

Just a reminder that you must arrive for duty in sufficient time to complete a hand over with…your on shift counterpart. This should be approximately 15 minutes before your shift commences. Also you do not finish shift until you have completed a hand over with you[r] oncoming shift counterpart or you have been authorised by the [facilities protection supervisor] or [facilities protection manager].

113    On 19 May 2020, Mr Canadas sent an email to the security workers at the Woodside site. It was in the following terms:

IMPO[R]TANT NOTICE

Good Afternoon Team,

A reminder that shift start times are as follows

•    04:45 & 16:45

•    I'm ok with 5 minutes here and their difference but no more.

Some staff are arriving on site much to early e.g. 16:20

(this is impacting your fatigue management and showing on the system as well)

This is to stop immediately

…

(original emphasis)

114    Mr Canadas gave evidence to the effect that he agreed that there was a requirement to complete a shift handover and that the general procedure was for handover documentation to be prepared at each change of shift. He agreed that the instruction in the email of 8 May 2015 concerning handovers was not changed or superseded. He gave evidence that he thought 15 minutes was long enough for the handover.

115    Mr Wilkinson was also cross-examined on the basis that Wilson Security had told him to come at 4.45 am for a 5.00 am shift.

116    I find that there was a direction to Mr Wilkinson to attend 15 minutes before the scheduled time for each shift for the purpose of completing a handover.

117    The real issue between the parties is whether there was a practice by which employees were invariably released from work as soon as they had completed the handover of two to five minutes such that, in practice, the scheduled time for the end of their shift was when the handover was completed. In that regard, Mr Wilkinson was taken in cross-examination to various records which referred to the time that he ended particular shifts. The following exchange then ensued:

Yes, and you can see here that there's a bit of mutuality, because, yes, you're being asked to come a bit early, but also, yes, you were being permitted to leave a bit early, notwithstanding the roster?---They can choose to let us leave whenever they like, up until - up until 5 o'clock. After then, there would be an expectation of overtime.

I understand. If you just listen to my question, which wasn't about what they could do. My question was there's a trend here emerging of mutuality, in the sense that you were asked to come 15 minutes early, but it also appears, like, very regularly, you can leave 15 minutes early?---There's - there was - I disagree. There was no trend of mutuality. There was no such agreement or meeting of the minds at all.

Okay. So forget about mutuality. The reality was, then - and I think I've already asked you this - that whilst you were expected to come 15 minutes early to do handover, it seems like, regularly, that's around the time that you would leave, quarter to, as well - - -?---No. There would always be that handover period.

- - - or shortly thereafter?---So, generally, it would be - 12 hours and two to five minutes would be the length of - the actual length of a shift, generally.

118    In the course of cross-examination Mr Wilkinson also gave the following evidence:

So once you've done the handover, that's it, yes? So once you've done the handover and the two people who - or three people who are replacing you are there - you've done the handover. You can go?---Yes. Well, it was sort of a standing instruction that we were allowed to leave. However, if anything cropped up and they said, 'Well, you need to hang around longer, until' - 'You're being paid' - and this was told to me - 'You're being paid till 5 o'clock. You have to finish this particular job, and then you can leave.'

Because Mr Canadas says that, once handover had finished, you were allowed to leave?---That was never - that was generally accepted, that we could leave at that time.

119    On the whole of the evidence, I find that there was a general practice whereby employees were allowed to end their shift once handover was complete. In consequence, in practice, Mr Wilkinson was required to report for duty 15 minutes before his scheduled start time and was often released from work about 10 to 13 minutes before the end of his shift (allowing for the handover of two to five minutes). However, if handover was longer or was delayed for some reason then, on those occasions, the time when he was released was closer to the scheduled end of his shift.

120    Mr Canadas gave evidence to the effect that there was 'never' an option for Wilson Security to insist upon security officers remaining to the end of the shift. He then identified an instance of an emergency when someone would stay behind. He was then asked why there was no formal change to the end time for the shift. His first answer was that he did not have authority to change the shift times. He then said that there was no need to change the shift times because 'the same thing' would apply. He explained his answer by saying 'If you bring [the end of shift] to 1645, you're still going to have to come before to do handover … Shifting the parameters of the time doesn't change that - doesn't fix that issue … It just brings it forward. And, as I said, I don't have the authority to do so'.

121    Although the early emphatic answer suggested that there was no insistence by Wilson Security that security officers attend for an additional 15 minutes for each shift, the subsequent answer reveals the practical need for there to be an arrangement whereby there was a period of 15 minutes overlap between shift changes. If indeed, there was only a need for five minutes then the direction to attend early for handover could have been expressed in those terms. In those circumstances, I did not find the evidence of Mr Canadas to the effect that there was never a need for a person to stay to the end of the shift to be convincing. Rather, I find that there was an identified need for a 15 minute window of overlap for handover and that was the reason why there was a requirement to attend 15 minutes before the start of each shift.

122    There was no attempt by Mr Wilkinson to establish the time at which he departed following completion of handover for each shift. There would have been evidentiary difficulty with a claim formulated in that way because, on the evidence, there was a practice whereby the time recorded in the relevant documents as the time at which each shift ended was completed in advance of the actual completion time. Therefore, those records were not a reliable indication of when handover was completed. There was also evidence to the effect that there were occasions when there was work that was required to be done after completion of handover which meant that the time until Mr Wilkinson could depart was delayed for that reason (though it was not suggested that the delay was beyond the scheduled finish time for the shift). There was evidence of an instance or two where the handover was started and completed more than 15 minutes before the end of a shift. However, on the evidence as a whole, handover was commenced 15 minutes before the rostered end time for the shift and usually took about two to five minutes to complete.

123    Significantly, the claim made by Mr Wilkinson was not for the two to five minutes that it took to complete the handover. Rather, the claim made was to the effect that the combination of the direction to attend 15 minutes before the rostered start time and the fact that the end time for Mr Wilkinson's 12-hour shift was never changed meant that he was underpaid by 15 minutes for each shift. The fact that he was allowed to leave earlier did not alter the fact that he was rostered to be there until the scheduled end time for his shift. Therefore, his required hours of work included an additional 15 minutes for each shift.

124    For Wilson Security, it was submitted in closing that by the practice that had been adopted there was a change to the finish time for the roster. A claim of that kind was not articulated prior to that point in the hearing. In any event, it was not supported by the evidence. As I explained, the practice which developed was not one by which employees were not required to present for work for the whole of the rostered hours. Rather, they were required to present for work 15 minutes before the rostered start time so that security officers for both shifts could be present to conduct a handover. The duration of that handover depended upon what had occurred during the shift. There was no certainty that it would be completed by any particular time. In those circumstances, a practice by which those completing their shift could leave once handover was complete did not amount to an adjustment to the rostered hours of work.

125    On the evidence, I find that this claim has been established. As I have explained, a practice of allowing employees like Mr Wilkinson to leave once the handover was completed did not amount to a change to the rostered work hours which remained unchanged throughout his employment. Wilson Security could (and, I accept, sometimes did) require its employees to stay until the end of their rostered hours. They were always required to present for work for those rostered hours. They were not entitled to work flexible hours. They were required to work from a nominated time (being 15 minutes before their rostered start time) until a nominated time (being 12 hours and 15 minutes after the nominated start time, that is their rostered finish time). A practice whereby they were often or even usually released before their rostered finish time did not mean they were entitled to leave before that time. They remained subject to the direction of their employer until the scheduled end of their shift.

126    For those reasons, Claim (4) succeeds.

Claims (5) and (6): Vehicle pre-start checks

127    The claim made by Mr Wilkinson was that there was a direction to him to drive 'company' vehicles from his accommodation campsite (arranged by Wilson Security) and to complete paperwork as to the completion of a pre-start check before departure. Together with the 15 minutes required for handover, he alleged that this meant that he was directed to commence work 45 minutes before the rostered start time for his shift. That is to say, the alleged direction to travel to work using the company vehicles and to complete the pre-start check meant that he worked an additional 30 minutes before each shift (over and above the claim that he was directed to arrive at work 15 minutes before his rostered start time).

128    Mr Wilkinson claimed that the arrangements in relation to the vehicles meant that the time spent driving to and from work was part of his work. However, his case as articulated gave some significance to the fact that there was a need to 'complete paperwork at camp', being the documentation that was required to be completed as part of the pre-start check. In that respect, the claim as to time travelling to work was different from the claim made as to travelling back to camp from the Woodside site once his shift had finished.

129    The claim that the time spent conducting the pre-start checks was itself work was accepted by Senior Counsel for Wilson Security in the course of oral submissions. As to that aspect, Mr Wilkinson relied upon an email sent by Wilson Security to its employees including Mr Wilkinson in which it was said that a failure to undertake the pre-starts would result in disciplinary action.

130    On the above basis, Mr Wilkinson claimed that he should have been paid for the additional time involved in undertaking the pre-start checks and in travelling to and from camp and work (Claim (5)) and that he was directed to work in excess of his rostered shift contrary to the Awards (Claim (6)).

131    In response, Wilson Security maintained that the vehicles were made available to employees but that there was no direction that they were required to use them to travel to work. As has been explained, it was accepted that there was a direction to undertake the pre-start checks before the vehicles were used and time spent undertaking those inspections was work. However, it was said that the checks did not take long, could be undertaken by one person and were shared amongst the employees travelling by means of the car provided by Wilson Security. Therefore, on the case advanced by Wilson Security, it could not be concluded that it was part of Mr Wilkinson's work for every shift to conduct a pre-start check. On that basis, it was contended that the arrangements in relation to the cars could not support a claim of the kind made by him which was to the effect that, by reason of those arrangements, he was required to work extra hours for every shift being work for which he was not paid.

132    There was a considerable amount of evidence from various witnesses as to what was involved in travelling by car from the accommodation camp to work at the Woodside site. There were different camps and different places of work at the Woodside site. There was evidence about what was involved in driving, who did the driving and how many employees were in each car. There was also some evidence as to how long it took to travel from each of the camps to the Woodside site. The evidence from witnesses other than Mr Wilkinson concerning the use of the cars and the pre-start checks was substantially to the same effect as that given by Mr Wilkinson.

133    However, Mr Wilkinson accepted that he was never told by Wilson Security that he had to use one of the company cars to get from the camps to the Woodside site where he was rostered to work. He also accepted that he was never told that there would be some consequence if he did not use the company cars. Further, he agreed that arrangements were made to share the cars to travel to work with a number of people travelling in each car and there was no direction from Wilson Security about how that was to occur.

134    When it was put to Mr Wilkinson that he could borrow a mate's car and use that to drive to work, he pointed out that there would be a problem for those who were ending their shift because they would not have a company car to drive from the Woodside site back to camp. Of course, that answer presumed that none of the other employees starting at the same time used the company car to get to work from the camp. Mr Wilkinson also said that he would probably seek permission before doing that because of that problem. However, he accepted that he had never tested that possibility.

135    When pressed, Mr Wilkinson accepted that the company vehicles were simply provided for the use of the employees to drive to their work sites. He also accepted that from time to time he took advantage of being able to use one of the cars for private purposes.

136    It has been described as 'normal enough that employees are not paid to travel to the place where work for the day commences, or to return home after work finishes': SOS Nursing & Home Care Service Pty Ltd v Smith [2013] FCA 295 at [31] (Buchanan J). At common law, travelling from home to a workplace is not undertaken as part of an employee's work: see, for example, Commonwealth of Australia v Cocks (1966) 115 CLR 413 (Barwick CJ, McTiernan and Taylor JJ). As a matter of fundamental principle, it is the service that earns the remuneration: Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 465 (Dixon J). The generality of these statements must give way to any specific provisions that deal with remuneration for travel to work or as part of specific work duties. Otherwise, it is the existence of a requirement in some form that an employee drive an employer's vehicle from home to work and return that may mean that the time spent is working time. It was so held to be the case under the relevant award considered in Master Builders Association of Victoria v Australian Building Construction Employees and Builders' Labourers' Federation (1981) 35 ALR 284 at 291 (Evatt and Northrop JJ).

137    Therefore, the fact that an employer makes available a vehicle for use by an employee to travel from a place of accommodation to a place of work, in and of itself, does not mean that driving the car to work was part of the employee's duties or that the travel time was part of the work being performed as an employee. That is especially so, where the employer has no contractual obligation to provide the vehicle and there is no direction by the employer requiring the vehicle to be used to get to work.

138    There was no direction given by Wilson Security that required security officers staying at the accommodation camps to use the cars provided by Wilson Security to travel to work. Mr Wilkinson was not directed to drive one of the cars to work. There were no duties that Mr Wilkinson was required to undertake for work while he was travelling to and from work in one of the cars provided by Wilson Security. Rather, the cars were made available for use by employees if they chose to use them. In those circumstances, time spent driving them to the place of employment was not part of the employee's duties.

139    For those reasons, I do not accept that the time spent driving to the Woodside site in the car (or back to camp at the end of the shift) was work for which Mr Wilkinson was entitled to be remunerated.

140    As to the pre-start checks, the fact that Wilson Security imposed a requirement for a pre-start check if the vehicle was to be used does not mean that the time spent completing the pre-start check was work directed by Wilson Security as employer. In the circumstances, there is much to be said for the conclusion that the requirement for a pre-start check was simply a reasonable condition of use of the vehicle that was made available for employees to travel from their accommodation to their place of work.

141    By email dated 22 March 2016 sent to all security officers, they were told by Mr Winter, who was then the facilities protection supervisor for Wilson Security:

All Wilson FIFO vehicles MUST have a pre starts done daily.

•    Pre Starts to be completed before departing Gap Ridge accommodation for Burrup Facilities. (Day and Night Shift)

•    Pre starts will be collected at end of month and submitted to FPS

•    It is not to be the same person completing the pre-start daily and task is to be shared.

•    Effective immediately

142    However, Wilson Security went further than simply imposing the pre-start check as a condition of use of the vehicles. On 16 May 2016, Mr Canadas sent an email to all security officers in the following terms:

RE: FIFO Vehicle Pre-Starts - Reminder!

Please make sure the pre-start is completed in the FIFO vehicles.

Failure to do so will result in disciplinary action.

143    The terms of that email led Senior Counsel for Wilson Security to accept that a requirement to do something on pain of disciplinary action being taken against an employee meant that the requirement to undertake the pre-start checks was work. Therefore, Wilson Security did not dispute that time spent undertaking those checks was work. So, it is necessary to consider whether, on the basis of that concession, Claims (5) and (6) might be upheld to that limited extent.

144    I note that Mr Wilkinson accepted that the requirement in relation to vehicle checks changed after 13 December 2017 so that the check was only required before travelling in the car for day shift (so each car was checked once each day).

145    As to the claim for time spent undertaking the checks, Wilson Security pointed to the fact that the nature of the claim made was to the effect that for every shift, Mr Wilkinson was required to undertake an additional 45 minutes of work. As to 15 minutes, that was claimed on the basis of the arrangements concerning handover (already addressed) in dealing with Claims (3) and (4). As to the balance of 30 minutes, that was said to be the time required to undertake the pre-start checks and the time spent travelling in the car from the camp to the Woodside site. Described in those terms, the claim did not seek a separate amount for the return trip at the end of the shift. It is not necessary to explore that aspect because, for reasons which follow, the claim based upon travel by car has not been made out by Mr Wilkinson.

146    It was submitted for Wilson Security that Mr Wilkinson had not established his claim that he was underpaid for every shift, being the basis upon which the claim was advanced. That is to say, the position of Wilson Security was that, at best (that is if all his argument succeeded), there might be a claim made by Mr Wilkinson for those days when he undertook the pre-start checks (for the time he spent completing the check) and for those days when he was the driver (for the time spent driving). However, a claim of that kind was not put. On that basis, the submission put by Wilson Security was that Mr Wilkinson could not succeed as to some partial aspect of the claim because there was an insufficient basis upon which to reach any conclusion as to how often Mr Wilkinson was the person who undertook the pre-start check or drove the car. Wilson Security also maintained that as the cars were made available to employees and there was no direction to travel to work using the cars, the time spent travelling to and from the Woodside site in the cars was not work.

147    As to driving time, for reasons that have already been given, the time spent travelling to (or from) work in the car was not work, nor was the time spent travelling when Mr Wilkinson was the driver. As to the pre-start checks, Mr Wilkinson has not established his claim that he was required to participate in undertaking those checks on every day that he was rostered to work, or even on most days. For much of the time, the pre-start checks were undertaken only before travelling to work for day shift. In addition, the task of undertaking the pre-start checks was shared. The frequency with which Mr Wilkinson undertook the pre-start checks has not been established. In that regard, Mr Wilkinson did not accept that the frequency with which he initialled the record of pre-start checks corresponded with the frequency with which he was the one who conducted these checks.

148    As the evidence does not support a general claim of the kind made, the claim must be rejected.

149    For those reasons, I do not uphold Claims (5) or (6).

150    However, in case the matter goes further and there is a need to reach a conclusion based upon the evidence concerning the pre-start checks, I make the following findings:

(1)    from 22 March 2016, there was a direction to conduct the pre-start checks before driving one of the cars provided by Wilson Security for use to travel to and from the place of accommodation;

(2)    however, there was no direction that required the security officers to travel to work by means of one of the cars provided by Wilson Security;

(3)    for a time the pre-start checks were required each time the vehicle was used but that was changed to only require the pre-start checks before each day shift;

(4)    mostly the pre-start checks were conducted by one person, but a second person would assist briefly when the rear lights were being checked;

(5)    not everyone who travelled to work in one of the cars was involved in conducting the pre-start checks each day;

(6)    the pre-start checks took between two and five minutes;

(7)    the time taken to travel to work depended upon which accommodation camp was being used at the time, but was about 20 to 25 minutes;

(8)    Mr Wilkinson drove the car more often than some other employees because he had a manual driver's licence which was required to drive the cars; and

(9)    sometimes the cars were used by security officers for personal purposes.

151    Mr Wilkinson also gave evidence about circumstances in which he drove company cars to pick up another car or collect someone from the airport. He also described circumstances in which the car would detour to pick up someone or to fill up with petrol. However, he accepted that his claim did not factor in a claim for the time spent in undertaking occasional trips of that kind. As to other journeys that were made, he also accepted that he was not directed to do those things and that there was peer pressure to take turns to do that. This evidence did not rise to the basis for a claim that these journeys were part of his work. In any event, the claim made was concerned with travel to and from the accommodation camp and the Woodside site and the vehicle pre-start checks associated with using company cars for the purpose of that travel.

152    For completeness, I note that in addition to general law authorities about what constitutes work, Mr Wilkinson relied upon the terms of the Awards to support Claims (5) and (6). In that regard, the 2010 Award provided that 'time occupied by an employee in filling in any time record or cards or in the making of records (other than time spent checking in or out when entering or leaving the employer's premises)' was ordinary time for which the employee must be paid: cl 21.1(b)(ii). The 2020 Award contains an equivalent provision in cl 13.2(b). Given the concession made in relation to the time spent undertaking pre-start checks being work, strictly speaking it is not necessary to consider this additional basis for the claim. However, I observe that those provisions are properly construed as dealing with time spent maintaining records of the time spent in undertaking work. They are concerned with the issue which sometimes arises as to whether time spent completing such records is itself work. They do not advance the claim made by Mr Wilkinson about filling in pre-start checks.

153    Finally, Wilson Security pleaded a case to the effect that security officers were paid for a 30-minute break for each shift (when the Awards provided for an unpaid break) and this time could be substituted for work performed outside rostered hours. Although the case was opened in a general way by referring to the need for flexibility or give and take when it came to rostered hours, the claim that entitlements might be offset in the manner pleaded was not pressed in closing submissions. As no basis for the claim as pleaded was articulated, I do not regard it as an answer to any of Claims (3), (4), (5) or (6). In any event, as explained below, the proper interpretation of the Awards is that they did not provide for an unpaid meal break. Therefore, there was an obligation to pay Mr Wilkinson for the whole of his shift.

Claim (7): Unpaid meal breaks

154    The Awards provided for security officers to be provided with unpaid meal breaks of at least 30 minutes for each shift of the kind worked by Mr Wilkinson: cl 21.6 of 2010 Award and cl 14.3 of the 2020 Award. Mr Wilkinson claimed that he was not afforded unpaid meal breaks. The relevant provisions in the Awards provided for an exception in circumstances where it would have been 'operationally impracticable' to have had these meal breaks. As to the meaning of that term, the 2010 Award provided:

… it will be operationally impractical to grant an unpaid meal break unless the employee is permitted to leave the client's premises or be unavailable for work during the period of the meal break.

155    There was no equivalent definition included in the 2020 Award. However, as has been explained, it was prepared as part of a process of revision for expression in plain English. It was not suggested that the 2020 provision operated differently to the 2010 provision.

156    Mr Wilkinson advanced no case to the effect that it was permissible for him to leave the Woodside premises during his shift. On the contrary, the evidence given was to the effect that the duties to be performed required him to be on site at all times and to be available to respond if needed. In particular, security guards had to be available to respond in case of an emergency. Much of the time they were responsible for checking the authority of visitors to parts of the site and, therefore, also needed to be available when a visitor sought entry.

157    In those circumstances, no basis for an entitlement to unpaid meal breaks has been demonstrated and Claim (7) must fail. The fact that it was operationally impracticable to provide an unpaid meal break explains why Mr Wilkinson was paid for 12 hours for each shift.

158    In its written opening submissions, Wilson Security foreshadowed that it would seek to rely upon 'any overpayment in respect of unpaid meal breaks' in its arguments on setoff. An argument of that kind could only be made if it were demonstrated that there was no liability to pay for meal breaks. No such position has been demonstrated by Wilson Security. This was a case where unpaid meal breaks could not be provided so there was no entitlement to them. Otherwise, there was the entitlement to paid rest breaks which is addressed below in considering Claim (8).

Claim (8): Paid rest breaks

159    It was common ground that the Awards provided for a paid rest break or breaks of 30 minutes in total over the course of a 12-hour shift. The gravamen of the claim made by Mr Wilkinson is that he was never allowed a break from work because he always had to be ready to respond if required. He described the circumstances of his employment as being 'on call' for the whole of his shift. In his affidavit evidence he said that the breaks they were allowed to take were not scheduled, had no defined start or finish times and could be interrupted. This was the case when he was taking a break to eat a meal. He said: '"Phones must be answered, site visitors and delivery drivers" cards programmed and activated, matters regarding site access or denial sorted out straight away - to give some examples'. He also said that there were some locations where he was required to work where no relief arrangements were made for him to take a break.

160    Mr Wilkinson accepted that there were quiet times but disputed that those periods could be retrospectively allocated as a break because during the whole of that time he had to be ready to respond and therefore did not get a real break from work. He said that there was no direction given or arrangements made for the taking of breaks from work. He accepted, in effect, that there would be times when he took a break and it was not interrupted such that looking back he would be able to say 'that 20 minute period was uninterrupted'. When asked whether it was possible that he did have a break on a particular day he replied: 'I would only have known it was - would have been a break if it was after the fact'.

161    When cross-examined, Mr Wilkinson maintained that he was always on duty and ready to respond even during times when things were quiet and there was more than one security officer present. He accepted that there were times when he was eating lunch and not working but he did not see those times as breaks because he was always required to be ready to respond. On his view, a break had to be taken on the basis that it would be 'interruption-free' if it was to qualify as a break for the purposes of the Awards.

162    Mr Wilkinson did not accept that a break from work could be 'unstructured and more ad hoc and opportunistic'. He maintained that breaks had to be scheduled and for a defined period of time away from work when there was no possibility that he could be interrupted. As he said, his view of what a break is differed from that of Mr Canadas. It was that difference in view that he advanced to explain entries in the daily records of activities of security guards that made references to breaks being taken.

163    The affidavit evidence of each of Mr Wilkinson, Mr Corke, Mr Hamilton and Mr Gardiner concerning breaks was expressed in very similar terms. It was part of the evidence of those witnesses that was effectively identical to the affidavit evidence of Mr Wilkinson. It was to the effect that there were no scheduled breaks and there were no meal breaks. This was more to advance an argument as to what constituted a break for the purposes of the Awards than to give evidence as to what occurred. Also, the evidence given by them has to be considered through their shared semantic understanding of what amounted to a break.

164    When cross-examined, Mr Corke was taken to an entry in a written daily record that referred to him taking a morning break. He was asked whether he had any reason to believe that the entry was incorrect. He responded:

Well, it's a break, but its not a break because all the time you're there, you're listening for alarms to go off or you're getting asked questions from out the - out the - from the control room. So it's not a break as such, but you do get a chance to sit down and have a - have a bite to eat. That's about it.

165    Mr Corke went on to explain that there were breaks with unspecified end times because he could be interrupted if there was something to do such as 'if a truck pulls up'.

166    Mr Corke also agreed that the busy period was at the beginning of each shift and that after that 'things quietened down a lot more'. He accepted that an entry in one of the daily records indicated that he had a lunch break on that day for 28 minutes or so. He was taken to other records that referred to him being 'on lunch break' or on a break. Based on those records he was challenged as to statements in his affidavit evidence to the effect that there was no mechanism to record when or if meal breaks were taken and his claim that he was never afforded meal breaks. He suggested that the references to breaks were peculiar to the author of the particular record. A response of that kind may indicate that breaks were generally not recorded. However, it does not suggest that breaks were recorded that did not occur. Like Mr Wilkinson, his evidence was to the effect that he did not get a break because as soon as you tried to have some down time you would be interrupted. He accepted that there was a better opportunity to get a break at the location referred to as BMF but said that 'it didn't always happen'.

167    In my assessment, Mr Corke's evidence about breaks was coloured by the contention that he and Mr Wilkinson wished to advance which was to the effect that a break which was not scheduled for a specified amount of time was not a break and a break which could be interrupted was not a break. It was evidence which understated the extent to which there was downtime after the initial rush hour when a break could be taken as well as the evidence given to the effect that the security officers determined for themselves when they would undertake many of their required tasks during the course of a shift, such as conducting patrols and undertaking audits and checks.

168    It was put to Mr Hamilton that during the course of a 12-hour shift even though there would be lots happening there would also be periods of downtime which would mean that he could take a break for 15 minutes. Mr Hamilton resisted answering that question directly despite being pressed. Instead, he repeatedly explained that he had to be ready to attend to work if there was a need for him to do so. The exchange ended with the following question and answer:

I understand, but would there also have been periods of time where you could eat or have a cup of coffee and, even though you may need to have stopped what you were doing if someone interrupted you, no one actually did, and so in hindsight you can look back and say, 'Yes, I had that 15 minutes to myself where nothing was happening, and I had a cup of coffee and read the West Australian'? --- Well, I'm pretty sure that's not a structured break.

169    I take the answer to involve an implicit acceptance that there were opportunities to take a break of 15 minutes or so, but that Mr Hamilton did not consider that to be a break because he could be interrupted and called back to work if required. Indeed, eventually, there was an exchange when Mr Hamilton accepted that at one of the locations that he was required to work on the Woodside site there were occasions where 'just for that 15 minutes … you could have a breather and have yourself a cup of coffee and read the paper … looking back in hindsight, that that did happen from time to time'.

170    Significantly, Mr Hamilton then explained: 'Well, you would basically just grab breaks when you could'. He also agreed with the following proposition put to him in cross-examination:

You would say, 'Listen, mate, you go have a 15-minute breather. I'm okay now for 15 minutes. Go and do what you need to do.' You would do that for others?

171    Mr Gardiner accepted that there were times during his shifts when there was some downtime. He also accepted that there were opportunities 'where there's three of you for one of you to go off, have a cup of tea, cup of coffee, read the paper, have some time to yourself'. He agreed that there were times when he sat down and had a coffee and didn't do any active duties. He said there were times when he asked for a break but was refused. This evidence appeared to relate to limited occasions and it was not suggested by Mr Gardiner that there was some general practice of denying security officers an opportunity to take a break. In my assessment, having regard to all of his evidence, Mr Gardiner, like the other witnesses accepted that there were quiet times when there was no specific work task to undertake when he may have read the paper or had a coffee or stopped to smoke a cigarette His complaint was that those breaks were not scheduled and that they could be interrupted.

172    Mr Barugh's affidavit evidence was that aside for an initial 'rush hour' at the start of a shift, his observation was that security officers working at Woodside 'had a lot of downtime, and essentially could take meal and rest breaks whenever they wanted to'. He said that breaks were more structured at the main gate where there were more staff and a designated meal room. At other places breaks were 'largely self-managed'. He said that he observed security officers bringing books to read to work. When cross-examined about whether breaks were properly managed and recorded he said:

… the breaks for security are when convenient to take them. They - some take - they take into account that the security role sometimes has emergencies that cut into those breaks. Flexibility was there.

173    However, as I have explained, I give little weight to this general evidence from Mr Barugh based on his occasional site visits.

174    Mr Canadas, who had worked as a security officer before being promoted within Wilson Security, gave affidavit evidence that 'while there were busy periods during any shift, there was also a significant amount of downtime'. He also said that security officers 'knew that they could take all the breaks that they wanted, provided that they completed all of their required work' and there were always opportunities for breaks to be taken. He also said that 'those meal breaks were almost always able to start and finish without interruption'. This was especially the case at the main gate and at the work site known as Pluto because there were always at least two security officers in attendance at those locations. As to the two other work sites where security officers worked (referred to by the parties as KBSB (where there was usually only one officer for night shift) and BMF (where there was always only one officer)), he said there was less work to be done at those sites and that based on his own experience working at those two sites 'taking uninterrupted breaks was not an issue'. His evidence was that interruptions to breaks 'would usually be due to a requirement to respond to an important or serious matter (such as a medical, security or emergency issue)'.

175    Having regard to all of this evidence and with regard to the evidence as a whole, I make the following findings. Materially for present purposes, I did not understand there to be any substantive divergence between the various accounts as to what actually happened, save perhaps as to the extent to which it was possible to take a break without interruption. At certain points the evidence given by Mr Wilkinson suggested that there were difficulties in being able to take breaks without interruption. However, regard to his evidence on that topic as a whole leads me to conclude that he was seeking to emphasise that breaks were not scheduled and when they were taken there was always the possibility that the person taking the break may be called back to work. Therefore, he was of the view that there were no breaks, due to the possibility that the break might be interrupted. However, once there is regard to his answers given in response to questions put by way of cross-examination, he did not maintain that there was no opportunity to take a break. Other witnesses accepted to varying degrees that there were such opportunities. Mr Canadas was not really challenged as to his account that there were such opportunities.

176    Therefore, having regard to all of the evidence I find that there were adequate periods of down time during each shift during which Mr Wilkinson could take breaks totalling at least 30 minutes per shift. Security officers were allowed to take those breaks and did so. The breaks were not scheduled, but security officers were permitted to take breaks as and when there was an opportunity to do so.

177    As to the prospect of interruption, I find that where there were a number of officers working at a location then there was the opportunity for one officer to take a break while the other officer or officers attended to required duties so the prospect of interruption was very low. Where there was only one officer, the workload was such that there were extended periods when there were no duties to perform. This is reflected in the terms of the written records that were maintained as a form of running sheet where there were extended periods of time where there was no record. Mr Wilkinson accepted that on night shift at KBSB 'there was not a lot going on'. It is also reflected in the evidence of the low number of people attending KBSB at night and at BMF.

178    The real issue between the parties is whether the fact that the breaks were not scheduled in any formal way and were taken on the basis that they might be interrupted if there was some form of emergency or other need for work to be done by the officer on a break, that they did not qualify as breaks for the purposes of the Awards.

179    Having regard to the nature of the work covered by the Award, in my opinion it has not been demonstrated that there was a failure to provide paid breaks to Mr Wilkinson of at least 30 minutes for each shift.

180    Therefore, I reject Claim (8).

Claim (9): The classification provisions of the Awards

181    Mr Wilkinson claims that he was classified as a Level 2 Security Officer when, under the Awards, he should have been classified at Level 4, alternatively Level 5 and paid accordingly. He also says that the terms of the Awards required Wilson Security to inform him that he had been classified by Wilson Security as a Level 2 Security Officer for the purposes of determining his pay and that it breached the Awards by keeping that fact a 'secret'. In consequence he says that Wilson Security contravened s 45 both by not telling him about the classification and not paying him at the correct classification. He also says that the underpayment was a contravention of s 323.

182    For reasons already given, a failure to pay an entitlement under the Awards would not, of itself, amount to a contravention of s 323.

183    As to whether there was an obligation on the part of Wilson Security to tell Mr Wilkinson that he had been classified as a Level 2 Security Officer, there is no provision to that effect in the Awards. Rather, the classifications operate to determine the extent to which a person employed in the security services industry is covered by the Awards. Further, they determine the minimum weekly wages for ordinary hours to which employees covered by the Awards are entitled. Consequently, the classifications operate to determine whether Mr Wilkinson is to be paid under the Awards and the minimum amount that he is to be paid. The classification provisions do not operate on the basis of some form of determination made by the employer. They are to be applied objectively and operate according to their terms.

184    As to the 2010 Award, Mr Wilkinson relied upon the terms of cl 13.1 which provide that 'an employee performing work falling within the classification descriptions in Schedule C must be employed in a classification in Schedule C'. At most, the clause requires the classifications to be used for all employees undertaking work falling within the classification descriptions in Schedule C. It does not give any significance to the making of a determination by the employer as to the applicable classification. If the employer did not employ in an applicable classification that would be a breach of the 2010 Award, not the failure to undertake the classification for that purpose. Put another way, it does not matter whether any determination was made by the employer as to the appropriate classification provided the employee is employed to undertake work in one of those classifications (being the applicable classification) and the Awards provisions are applied accordingly.

185    As to the 2020 Award, Mr Wilkinson relied upon the terms of cl 12.1 which are as follows:

An employer must classify an employee covered by this award in accordance with Schedule A - Classification Definitions

186    However, despite that terminology, I do not consider the 2020 Award to be giving any operative significance to the making of a determination by the employer but rather requires the employer to use the classifications. Again, an employer who did not classify would not breach the Awards because of the failure to classify but would breach the Awards because the employer did not apply the Awards to the employee according to the classifications. A different conclusion would give significance to the employer's classification which would mean that the rights of employees under the Awards would depend upon that subjective classification rather than the objective application of the Awards according to the classifications.

187    For those reasons, I do not accept the part of the Claim that there was a breach of the Awards because Wilson Security did not communicate to Mr Wilkinson in express terms its view that he was properly classified and covered on the basis that he was a Level 2 Security Officer.

188    Therefore, the remaining issue is whether Mr Wilkinson was properly paid in circumstances where he was paid by Wilson Security on the basis that he was to be classified as a Level 2 Security Officer for the purposes of the Awards. The classifications are in Schedule C to the 2010 Award and Schedule A to the 2020 Award. They are set out in the appendix to these reasons. For present purposes there is no material difference between the 2010 Award and the 2020 Award.

189    In determining whether a person's employment was within a particular classification it appears to be accepted that it is necessary to ascertain whether the 'principal' or 'primary' purpose for which the employee was employed falls within the classification (at least in determining the appropriate award to apply): Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [269] (White J); see also NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [120] (Flick J).

190    The claim advanced by Mr Wilkinson was to the effect that he was undertaking the duties of a Level 4 Security Officer when he worked for Wilson Security for the first year and that after that, the experience he had obtained meant that he should have been paid at the Level 5 classification. He made no claim that Level 3 was the appropriate classification.

191    Mr Wilkinson's case focussed upon two aspects of the tasks specified as being indicative of what a Level 4 and Level 5 employee may be required to perform. First, 'keyboard operation to alter the parameters within an intelligent building management or security system' and second, monitoring or recording the activities of security officers 'within a monitoring centre'.

192    The evidence established that the duties required to be performed by Mr Wilkinson included operating the computer-based 'EBI system' which was the security system for the Woodside site where he worked. He and other officers were trained in the use of the EBI system. Some administrative tasks, such as the issue of access cards involved creating new EBI profiles with an individual's access permissions.

193    Those who were employed on site were issued with cards which gave them permanent access. The issue of those cards was not the responsibility of the security officers working for Wilson Security.

194    However, security officers were involved in issuing cards for people who had been hired or contracted to come on site for a time to undertake work. Cards for those people were issued mainly by security officers working at the main gate. In order to issue the card the officer had to first check the individual's details and authorisation before manually transferring information from an individual's authorisation form to the EBI system (by entering the information into various fields). As Mr Wilkinson said: 'First, we would need … an authorisation'.

195    The authorisation was provided by email from Woodside or, on occasions, the person would turn up with a copy of an email authorisation which would then need to be checked. As he said: 'there was only a handful [of] people on each site of a senior level who could authorise [an] individual to come on site'. The security officers could not provide that authorisation.

196    The security officer would check the authorisation and enter the person's details such as the name and address of the person to whom the card was to be issued and the relevant supervisor and contact details. The security officer would also take and upload photos and biometric hand scans to the system and check that the card was operational.

197    On the evidence, the EBI system controlled the access gates and was a system by which access cards could be programmed for use by people working on the site. Each card could be 'programmed' by adjusting settings within the system that corresponded with the access card. The card would then permit access through gates in accordance with those settings. The system would also record the time and date of access by holders of access cards and enabled audits to be conducted. In addition, the system included monitoring and recording by means of site surveillance video cameras. Inputs from the cameras could be accessed in real time at the computer consoles. The system also generated alarms which were notified to the computer consoles. It was also used to coordinate a muster of all people on site when required.

198    The evidence also established that the input of data into the EBI system determined the extent of an individual's access to particular areas of each site based on the permissions granted by Woodside. The data input function was undertaken by security officers using drop down menus to select the particular areas of the site for which the individual was to be given access. When it came to the issue of access cards, that involved entering details into the computer that had been emailed to the security officers for the issue of a new card.

199    On the evidence, I find that Mr Wilkinson was not entrusted with the task of evaluating the nature and extent of the areas to which a person may be allowed to have access. Rather an assessment of that kind was made by others and emailed to him. Then he would access the system and enter details using the dropdown menus that conformed to the information that he was provided.

200    Also, the evidence did not establish that Mr Wilkinson had a significant responsibility for coordinating, monitoring or supervising the activities of other security officers. He was required to maintain a form of running sheet record (described as a daily operation report) as to what was being done by security officers at the location where he was working. However, I would not characterise that task as being within the indicative description of the tasks for Level 4 or Level 5 in the classification.

201    It is also necessary to have regard to the evidence of the other tasks that occupied much of Mr Wilkinson's time when working for Wilson Security. He agreed that that his work involved conducting site access control, using hand-held metal detectors, responding to alarms, conducting vehicle inspections and bag checks, conducting site inductions for visitors and delivery drivers, conducting audits of access cards and equipment, administering alcohol tests, managing and issuing site keys, conducting site escorts, responding to medical or security incidents and conducting ambulance checks. It also involved patrolling the site by car and by foot, as well as completing paperwork and operating the computer to access the EBI system.

202    Other witnesses, including Mr Canadas, gave evidence to similar effect. The written position descriptions for security officers list similar tasks. They also refer to checking to ensure that a person working in the Maritime Security Zone which formed part of the Woodside site was in possession of a maritime security identification card or MSIC and reporting on any health or safety issues observed on the site. There was also evidence that the work involved issuing work orders where necessary and raising purchase orders.

203    In the case of a temporary visitor or a driver Mr Wilkinson gave evidence about obtaining information to allow temporary access. However, the evidence of Mr Corke was to the effect that there was an administration person who would usually undertake that task which was only done by security officers when the administration person was not present.

204    There were occasions when Mr Wilkinson spent much of his time during a day arranging the issue of new identification cards. However, based upon the whole of his evidence, it could not be said that was a regular occurrence because of his acceptance of the extent of other tasks that he performed.

205    Although Mr Wilkinson, Mr Corke, Mr Hamilton and Mr Gardiner gave affidavit evidence expressed in similar terms to the effect that most of their daily duties involved keyboard operation of the EBI system, I find that this evidence reflected the fact that for a considerable part of their day they were stationed where they could view a computer monitor displaying what could be accessed as part of the EBI system. In order to respond to alarms or look at different video input from cameras it was necessary to use the keyboard to navigate the system. In that sense they were regularly involved in the 'operation' of the EBI system using the keyboard. They also used the keyboards when setting up a new access card in the manner I have described.

206    For example, Mr Hamilton explained how he spent more time operating the EBI computer system because he had been working at the Woodside site for so long and knew the system. He explained how the EBI system included cameras and door alarms and tamper alarms and fence alarms. If an alarm was triggered then it would activate the camera and the image generated by the camera at the location could be checked on the computer screen in the gate house (or at other locations where the security officers were deployed). In that context, Mr Hamilton explained what he meant by setting up parameters for site access. He explained how an access card was programmed using the EBI system. He agreed that it involved 'clicking on a dropdown menu or inputting data into that particular field about what related to access'. The selection as to access would then allow the card to be used to gain access through a particular gate. He explained how the selections were made depending upon whether the person had permission to access part of the site.

207    As to the issuing of cards for access, having regard to the evidence of all the witnesses concerning the EBI system, I accept the following account of the work done by security officers (described as FPOs) when it came to the issuing of access cards given by Mr Canadas:

Use of the EBI system was a part of the role of an FPO. The data that the FPOs had to input into the EBI system were details of people entering the Site when setting up their access cards (specifically, their name, date of birth, their company, their position, and the name of their contact at Woodside). The access card was then programmed by the EBI system. Depending on the nature of the role that the individual performed, there might be some additional matters that needed to be entered into the EBI system - but these details were all provided by Woodside or the contractor. For example, if the individual was going to drive a vehicle onto the Site, then his or her licence number would also be entered into the EBI system along with other details; and if the person needed to access a jetty then his or her Maritime Security Identification Card (MSIC) number would also be included. But only name, date of birth, company, position, and Woodside contact point was required. This was referred to as 'making up a profile'.

208    Mr Corke agreed that the EBI system was primarily operated by the supervisor at the main gate.

209    Otherwise, the operation of the computer system so that it could lock and unlock access to particular areas by use of the access cards was entrusted to Honeywell (the information technology provider for the EBI system). It was Honeywell that was responsible for the programming which determined which parameters were required to be completed for each access card. Therefore, the establishment of the parameters that applied to different personnel when it came to access was entrusted to others.

210    Mr Wilkinson was cross-examined about what was done by him when he arranged for the issue of a card. It involved entering the data for each field as required by the EBI system. It did not involve adding new parameters or changing the way in which the EBI system would enable access to particular areas of the Woodside site. It was clear from that evidence that Mr Wilkinson was using the term 'parameter' to refer to the fields that had to be completed within the EBI system in order to issue an entry card. As he said: 'we're talking, basically, about the same thing. One word is it's a parameter, and another way of saying it is it's a field'.

211    However, in my view, the references in the classification provisions of the Awards to 'keyboard operation to alter parameters within an intelligent building management or security system' are to work which involves determining the parameters of access; that is to say where a person would be allowed access, the gates through which a person would be allowed to pass and the way in which the system might record the occasions on which access was obtained. Mr Wilkinson and the other security officers were not involved in altering such parameters. Rather, their responsibility was to enter data into existing fields of the EBI system for the purpose of ensuring that the parameters of access for the person corresponded with approvals as to the parameters of access that had been determined by others. Further, Mr Wilkinson and the other security officers were not given the task of determining the nature of the parameters that might apply.

212    Further, as I have explained, Mr Wilkinson's allocated responsibility from time to time of keeping a daily record of the activities of security officers during a shift was not the performance of a task that could be described as 'co-ordinat[ing], monitor[ing] or record[ing] … the activities of security officers'. In my view, the language in the Awards points to tasks which are supervisory and involve one officer discharging a responsibility to direct or supervise the activities of other officers by means of a system for communication between officers. The kind of record keeping undertaken by Mr Wilkinson was not a task of that kind.

213    For those reasons, Claim (9) must be rejected.

214    For completeness, I note that Mr Barugh gave evidence to the effect that the work done by security officers was 'basic data input'. I would not describe the work done by them in that way. It required training as to the system and the way in which to operate the EBI system, to respond to alarms and to ensure that the information that was entered into the fields was appropriate having regard to the authority that had been given. Therefore, I do not accept Mr Barugh's characterisation.

Claim (10): Permanent night work allowance

215    Clause 22.3 of the 2010 Award provided for penalty rates in respect of 'ordinary hours worked' of 21.7% for 'Night span' and 30% for 'Night span (permanent night work)'.

216    Clause 22.1 defined 'Night span' as:

0000 hrs to 0600 hrs and 1800 hrs to 2400 hrs throughout the period from 0000 hours Monday to 2400 hours Friday (excluding hours on a day that is a public holiday)

217    Clause 22.2 defined 'Permanent night work' to mean:

work performed during a night span over the whole period of a roster cycle in which more than two thirds of the employee's ordinary shifts include ordinary hours between 0000 hrs and 0600 hrs.