CPSU, the Community and Public Sector Union v Department of Justice

[2011] FWA 2279

[2011] FWA 2279

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

CPSU, the Community and Public Sector Union
v
Department of Justice
(C2011/3593)

COMMISSIONER ROE MELBOURNE, 13 APRIL 2011

Alleged dispute concerning status quo provision of the dispute settlement clause of the Victorian Public Service Agreement 2006 (as extended and varied in 2009) Clause 10.3.2.

[1] On 10 March 2011 the Community and Public Sector Union (CPSU) made application to deal with a dispute in accordance with the disputes settlement procedure in the Victorian Public Service Agreement 2006 (as extended and varied in 2009) (the Agreement). The Agreement was made under the Workplace Relations Act 1996 (the WR Act). Therefore, together with the operation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and Schedule 19 of that Act in particular, the provision of Section 170LW of the pre-reform version of the WR Act is able to be utilised to resolve disputes under the terms of the Agreement.

[2] The parties agreed and I am satisfied that the requisite steps of the disputes settlement procedure (Clause 10) of the Agreement had been complied with such as to enable the matter in dispute to be arbitrated by me in accordance with Clause 10.9 of the Agreement. The matter came before me for conciliation on 29 March 2011. The parties agreed and I am satisfied that conciliation was unsuccessful and has been completed.

[3] A CPSU member, Ms Lee Thomas, works at the Metropolitan Remand Centre and is employed by the Department of Justice in the VPS classification COG2A.

[4] Ms Thomas alleges that she reached an agreement with Mr Long, Business Services Manager of the Metropolitan Remand Centre, in early August 2010 that she would work her normal 9 hour shift on a public holiday provided that she notified the staff office in advance that she wished to work on that day.

[5] Ms Thomas alleges that around January 25 2011 the operations manager or prison governor, Ms Smith, advised her that no agreement to this effect exists or would be followed. Ms Thomas was advised that she could make herself available to be called in for overtime along with other workers where there was an operational requirement for overtime. The dispute over whether or not there was an agreement and whether or not that alleged agreement should be honoured has been the subject of several meetings between management and the CPSU. Ms Thomas has lodged a grievance in accordance with Clause 10.6 of the Agreement. That grievance will be dealt with through the internal process in the next few months.

[6] The CPSU and Ms Thomas submit that in the meantime “work must continue in accordance with usual practice” pursuant to Clause 10.3.2 of the Agreement. That clause provides that “whilst a dispute or grievance is being dealt with in accordance with this clause, work must continue in accordance with usual practice”. The only exception to this relates to situations of health and safety risk which are not relevant to this case. The CPSU submit that this means that Ms Thomas must continue to be offered work on public holidays until the dispute is resolved. The Department of Justice has refused to offer Ms Thomas work on every public holiday. Ms Thomas was not offered work on March 14 2011 and the Department does not intend to offer work on the upcoming Easter and Anzac Day holidays unless there is an operational demand for this and overtime is allocated in accordance with normal practice.

[7] I am not determining the merits of Ms Thomas’s grievance. That is a matter which has been referred to an internal grievance process through Clause 10.6 of the Agreement. That process having commenced it is only if that process is unsuccessful that the matter can be dealt with by conciliation and arbitration by Fair Work Australia.

[8] My role at this stage is simply to determine whether or not it is the “usual practice” for Ms Thomas to be given the right to work on every public holiday for her regular daily hours. If it is the “usual practice” then the Department of Justice must work in accordance with this practice until the matter is resolved. If it is not the usual practice then there is no requirement of the Department of Justice to offer Ms Thomas work on every public holiday during the period until the matter is resolved.

[9] Mr Ansorge from the CPSU represented the Applicant. The Applicant gave evidence as did Mr Brett Stevens who, like the Applicant, is a prison officer employed by the Department of Justice at the Metropolitan Remand Centre. Mr Stevens was present during the making of the alleged agreement with Ms Thomas and he was the only other person to whom the agreement allegedly applied. Mr Stevens was not available for cross examination, however, it was agreed that cross examination was not required. The CPSU provided copies of the Staff Duty Lists for each of the public holidays during the period since the alleged agreement was reached with Mr Long in August 2010 until just after Ms Smith ended the arrangement. Those public holidays were 2 November 2010, 27 December 2010, 28 December 2010, 3 January 2011 and 26 January 2011. 1 The CPSU also provided copies of the relevant pay slips to show how Ms Thomas had been paid for working on these days.2

[10] Mr N Harding represented the Department of Justice. Ms Ross Smith, an operations manager or governor of the prison gave evidence. Mr Stephen Long, who had been the Business Service Manager of the prison and the person with whom the alleged agreement was made in August 2010 also gave evidence. Ms Smith put into evidence an email which she had been provided with by the Applicant on 27 January 2011. 3 That email attached a copy of an email exchange between the Applicant and a CPSU organiser on 28 July 2010.

[11] During the relevant period, August 2010 until February 2011, Ms Thomas and Mr Stevens worked in the Telecourt area. The Telecourt area only operates Monday to Friday during the day. Ms Thomas had previously worked on a 7 day shift roster between 1997 and 2007. In 2007 Ms Thomas had requested for personal reasons to move off the shift roster and she was accommodated in the Telecourt areas working 7.30am to 3.30pm. To further accommodate Ms Thomas’ needs her hours were 9 hours for 8 days of the fortnight and 8 hours on 1 day so that time could be accumulated to provide for a Rostered Day Off each fortnight.

[12] Overtime at the prison operates on the basis that employees can put themselves on the list of employees who are available to be called in for overtime on a day when not rostered for duty where this is required for operational reasons. Employees can also provide notice that they are not available for certain days and a record of this is kept on a “160” list. Ms Thomas had since 2007 made herself available for weekend overtime and had on occasions been asked to work such overtime. Ms Thomas had since 2007 made herself unavailable for overtime on occasions.

[13] Those employees who are on shift rosters are not rostered to work every weekend or on every public holiday. The roster spreads the available rostered weekend and public holiday work amongst employees on a particular roster. There are some workers who are on a shift roster and where that day on for work corresponds with a public holiday they are still required to work on the public holiday even though their section does not normally operate on that day. Those workers are listed on the staff duty list as “TP” or “to be placed” and may be redeployed to cover absences or other special needs. On the staff duty lists provided for the public holidays 4 there are four to six of such workers in the prison.

[14] The main area affected by this approach is the reception area. Like the Telecourt area the reception area does not generally operate on a public holiday. However, the situation for the reception area is different from the situation in the alleged agreement in respect to Ms Thomas and Mr Stevens. From the evidence I summarise that the main differences are as follows:

• The staff in the reception are on a roster unlike Ms Thomas.



• The staff in the reception area are rostered to work ordinary hours on weekends (although not as frequently as other shift workers). Ms Thomas’ ordinary working hours do not include weekends.



• The staff in the reception area work ordinary hours on both day shifts and extended (that is later finishing) day shifts. Ms Thomas only works ordinary hours within the regular spread of hours in the Agreement.



• The staff in the reception area do not have a choice whether or not to work on a public holiday if they are rostered to work on a public holiday. Ms Thomas and Mr Stevens say that the alleged agreement reached allowed them to work if they indicated to the Staff Office that they wished to work.

[15] Mr Stevens in his statement says:

“Mr Long said at the meeting that it was our choice to work public holidays if we wanted to and all we had to do was contact the Staff Office to advise them if we were going to work on that day. It was my understanding that it was at my discretion to either observe the public holiday or work it. This meant that I would be redeployed elsewhere in the prison given Telecourts is nonoperational on public holidays. I recall being called to work on Australia Day but elected to observe the public holiday on that day.” 5

[16] Mr Long gave evidence that he did agree in August 2010 that Mr Stevens and the Applicant could be considered for work on public holidays in the future. He understood this to mean that they would be considered on the same basis as other staff who were rostered off on that day and were available to be considered for work depending upon the availability of work. Mr Long said that he did not commit to Mr Stevens and the Applicant being able to work on every public holiday.

[17] An examination of the duty lists 6 and the pay slips7 provided illustrates the following:

• On 2 November 2010 Ms Thomas is listed as working from 7.30am to 3.30pm and is listed on the duty list together with “T.P” (To be Placed) employees. This is 8 hours rather than the 9 hours Ms Thomas usually worked on a Tuesday. However, Ms Thomas was paid for 9 hours. Mr Stevens is not listed.



• On 27 December 2010 Ms Thomas is listed as working from 7.30am to 3.30pm and is listed together with the “T.P” employees. This is 8 hours rather than the 9 hours Ms Thomas usually worked on a Monday. However, Ms Thomas was paid for 9 hours. Mr Stevens is not listed.



• On 28 December 2010 Ms Thomas worked from 7.30am to 4.30 pm and is listed together with “T.P” employees and is also shown as having been allocated to work to cover a shift for T McInnes who was on sick leave in the CMC area. Ms Thomas was paid for 9 hours. Mr Stevens is not listed.



• On 3 January 2011 Ms Thomas is listed as working from 7.30am to 3.30pm and is listed together with “T.P” employees. This is 8 hours rather than the 9 hours Ms Thomas usually worked on a Monday. However, Ms Thomas was paid for 9 hours. Mr Stevens worked in the Exford unit for the same hours.



• On 26 January 2011 Ms Thomas worked from 12.30pm to 8.30pm in the Attwood area covering A Addison who was on Long Service Leave. Ms Thomas actually attended to work at 11.30am in order to be consistent with her normal 9 hours of duty. However, Ms Thomas was not paid for the hour between 11.30am to 12.30pm. Ms Thomas is not listed with the “T.P” employees. Mr Stevens is not listed.

[18] The evidence of the Applicant and of Ms Smith is that on 25 January Ms Smith advised Ms Thomas that there was no arrangement for her to have the right to work on all public holidays. Ms Smith advised that there was work available on 26 January but not for her normal hours, only to cover an extended day shift.

[19] The Applicant gave evidence that she spoke to Mr Long twice about working on public holidays. The first occasion was on 28 July 2010 and the second occasion was in early August and Mr Stevens was present on that second occasion.

[20] In the first meeting the Applicant says that Mr Long said that she could work on public holidays if there was a position available. On the same day the Applicant wrote an email to the CPSU organiser about this conversation.

“I have just had Stephen Long attend the Telecourt area and inform the staff here that we are able to work the public holidays, providing that the roster sheet is not already full and be redeployed to other areas. I informed him that the reception area gets redeployed regardless if the running sheet is full or not. He did not really respond to this. We will see how this goes and if we are denied work when we request to work the public holiday.”  8

[21] In the second meeting the Applicant says that Mr Long said that they could work the public holidays for their normal rostered shift times if they wished and they had to contact the staff office to advise them if they wished to work.

[22] The evidence of Mr Long is consistent with what the Applicant says was the outcome of the first conversation. The evidence of Mr Stevens does not clearly state that Mr Long agreed that Mr Stevens and Ms Thomas could work on any public holiday regardless of whether or not work was available. 9

[23] The evidence discussed earlier clearly demonstrates that the Applicant worked public holidays consistent with what she says was the agreement reached in the second conversation with Mr Long between 2 November 2010 and 3 January 2011 inclusive.

[24] The Applicant contacted the Staff Office on each occasion and told them she was to be rostered for work on the upcoming public holiday or holidays.

[25] The Respondent says that the Applicant was only rostered for work on each of these holidays because the Applicant told the Staff Office that she was to be rostered and the Staff Office acted on this advice without checking with senior management. The Respondent says that once senior management, Ms Smith, became aware of the practice she stopped it.

[26] Ms Smith gave unchallenged evidence that she was not aware of any agreement reached between Mr Long and the Applicant until January 2011. Ms Smith gave evidence that when she became aware that the Applicant had been allocated work on public holidays when there was no vacancy on the staff duty list, that is no work which was required to be covered, she took steps to rectify the situation by advising the Applicant on 25 January that she would only be brought in to work on a public holiday when there was work which was required to be covered. Ms Smith was on leave over the Christmas and New Year period and so I accept that Ms Smith was not aware that the Applicant had been allocated work on public holidays where she was super-numerary until after Ms Smith returned to work in January. I am satisfied that Ms Smith acted to rectify what she saw as inappropriate allocation of work on public holidays to the Applicant as soon as possible.

[27] There is no doubt that whilst the dispute over the alleged agreement is being resolved “work must continue in accordance with usual practice”. What is the usual practice in this situation is not a simple question.

[28] The difficulty can be shown by considering the following imaginary scenario:

• Prior to November 2010 in the reception area employees were always rostered to work on a public holiday if this was a normal working day for the employee even though the reception area was not operating.



• In August 2010 a supervisor decided that to save money this practice would be changed and employees would only be called in if there was work available. The supervisor discussed this with a local CPSU delegate but their version of what happened in this conversation differ.



• In the period between November 2010 and Australia Day 2011 some employees got to work public holidays but others did not when there was no work available.



• In January 2011 the CPSU organiser was contacted by an irate member about the fact that they had not been allocated work on Australia Day and the supervisor advised the CPSU that there had been an agreed change of practice so that public holidays were now not always available.



• The CPSU lodged a dispute about the matter and claim that whilst the dispute is being resolved the custom and practice operating prior to November 2010 should apply. The Department of Justice claim that whilst the dispute is being resolved the custom and practice operating during the period since the discussion between the delegate and the supervisor in August 2010 should apply.

[29] In the real situation the “usual” practice alleged by the CPSU was only in effective operation between November 2 2010 (Melbourne Cup Day) and 25 January 2011 when Ms Smith advised that the agreement did not exist or was not being recognised. Prior to this period there is no contest that the usual practice over the preceding years had been that the Applicant and others in the Telecourt area did not work on public holidays.

[30] There is real doubt as to the nature of the agreement reached between Mr Long and the Applicant. If there was no real doubt then of course the usual practice would be to work consistent with the agreement currently in place.

[31] Mr Long says that the agreement was that the Applicant could work on public holidays when work was available whilst the Applicant says that the agreement was that she could work on any public holiday she wished. The Department of Justice gave unchallenged evidence that no other employees are rostered to work on every public holiday and unless they are rostered to work no other employees have the right to work on a public holiday unless there is work available for them to be called in to do. This suggests that there is some real doubt as to whether or not the agreement was of the sort that the Applicant suggests. However, I do not and should not make any finding as to what was the nature of the agreement reached since this is a matter to be determined through the grievance process. I simply make a finding that there is real doubt about the nature of the agreement.

[32] In all of the circumstances I find that the “usual” practice for the purposes of dispute settlement procedure, and Clause 10.3.2 in particular, is the situation which existed for a number of years prior to 2 November 2010 and not the situation which existed between 2 November and 25 January 2011.

COMMISSIONER

Appearances:

Mr Ansorge from the CPSU represented the Applicant.

Mr N Harding represented the Department of Justice

Hearing details:

2011
Melbourne
12 April

 1   Exhibit CPSU -1.

 2   Exhibit CPSU-2.

 3   Exhibit DOJ-1.

 4   CPSU-1.

 5   Statement of Mr Stevens, paras 10-12.

 6   CPSU-1.

 7   CPSU-2.

 8   Exhibit DOJ-1.

 9   See paragraph 15.

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