CPSU, the Community and Public Sector Union v Department of Treasury and Finance

[2013] FWC 9849

[2013] FWC 9849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute

CPSU, the Community and Public Sector Union
v
Department of Treasury and Finance
(C2013/7241)

State and Territory government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 16 DECEMBER 2013

Clause 10—communication, consultation and dispute resolution; clause 61.

[1] The CPSU, the Community and Public Sector Union (CPSU) has notified a dispute about the proper application of Clause 10 of the Victorian Public Service Workplace Determination 2012 [AG895510] (the Determination) in relation to the reorganisation of the Shared Services Provider (SSP).

[2] From the materials it is said that services managed by SSP are:

● Facilities management;

● Real estate management;

● Accommodation projects co-ordination;

● Service centre delivery incorporating conference centre management service and some accommodation projects; and

● Portfolio management, incorporating whole of Victorian Government office accommodation planning, security and contract management.

[3] On 8 July 2013, the Deputy Secretary of the Department of Treasury and Finance (DTF), wrote to Ms Karen Batt, the Secretary of the CPSU, advising that DTF proposed to release a Request for Tender (RFT) to the market place for the management of a range of office accommodation property services for the Victorian Government. The letter noted that the services were jointly managed by the SSP and external service provider—Brookfield Johnson Controls (BJC). The letter outlined the rationale for the change, the benefits of the proposed change and the proposed consultation process.

[4] The attachment to the letter stated:

“The commercial contract with BJC for the provision of services concludes at the end of March 2014. As a part of Government business as usual processes, an open and transparent tender process is required to allow Government to consider and assess a range of options for ongoing service delivery.”

[5] The 8 July 2013 letter, a version of which was also sent to staff, advised of briefings and invited alternative proposals. On 22 July 2013 the CPSU wrote to DTF seeking documents and more information on:

● Brief to engage consultants to develop the Expression of Interest (EOI) and RFT.

● The EOI and rationale for its contents.

● Brief following evaluation of EOI and rationale/recommendation for going out to select tender.

● The RFT.

● Data used for comparative analysis for service delivery costs and where this was sourced.

● Comparison of costs of like service requests between internal providers (SSP service centres) and external providers (BJC contractors/subcontractors).

● Volume and breakdown of work requests dealt with by BJC over the last three years.

● Organisation chart for BJC that shows staff numbers and responsibilities.

● Minutes from Executive Committee meetings that relate to discussions concerning the outsourced business model.

[6] By letter dated 26 July DTF wrote back to CPSU providing a level of information which was in its possession although it advised that it would not provide the RFT.

[7] In July and August a number of alternative proposal were forwarded by staff of SSP and by the CPSU. The CPSU now argue that because it and its members are not aware of the full scope of what is sought by DTF, then it cannot sensibly be said that DTF had consulted to the extent that employees had been given an opportunity to influence the decision maker. It relied upon the following:

“In deciding whether or not to make the orders sought I have considered the importance of consultation. Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. Section 170GA(1)(b) of the Act speaks of measures to avert or minimise terminations or to mitigate the adverse effects of the terminations. Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may affect the employment prospects of individuals. The opportunity to seek to avoid or mitigate the effects of a termination cannot be underestimated by those who wield power over those and their families who will be the subject of the exercise of that power.” 1

[8] For DTF it was argued that staff had full and ample opportunity to comment on the proposal for change and did so. It argued that it considered the views of staff but decided, against that background, to put a RFT to the market to provide certain services. In addition, DTF argued that, in any event, it was too late in the day to raise the application given that it proposed to take a decision on 16 December 2013 for implementation early in 2014 and that tender probity was paramount.

[9] This is not an easy matter.

[10] On the one hand DTF take the view that it canvassed the full scope of what it was putting out to the market and it considered the views in opposition to that course. CPSU argue that the detail of what was being sought was not provided so it and its members could not give particular thought to what DTF had in mind. It argued that the lack of detail hampered considered responses. CPSU point to information provided to staff that has been referred to earlier. It was argued that if DTF had not settled in the scope of the of ongoing service delivery, how could proposals be made to either prevent or mitigate the effects of redundancy.

[11] It must be remembered that the reason why consultation is so necessary is because of the impact on staff. As Dr Brendan Nelson observed:

“Australia is a country in which we define ourselves through our work. Within minutes of meeting one another, the question is asked: “What sort of work do you do?” Work puts us in a social context, defines the framework of our lives and gives each of us a sense of balance and meaningful purpose. Being without a job devastates not only personal finances; it exacts a heavy social and human toll. Albert Camus said: ‘Without work, all life goes rotten’.

Losing your job after two or three decades of continuous work is a major life event. It can be as devastating for some as the loss of a limb or even a family member. Employers must take seriously the need to manage redundancy in an orderly and humane way. The displacement of employees is handled well by some employers, but appallingly by others. The long term consequences are devastating for the individual and ultimately significant for the public purse. 2”

[12] In this matter, the Commission is not asked, nor should it, 3 to determine how DTF should run its functions but to give the staff an opportunity to maintain employment.

[13] In large measure the resolution of this matter involves a judgment about what the consultation was about in the first instance. On balance I am prepared to hold that the consultation was about whether or not the proposal of the RTF was to contract out all or any functions currently undertaken by SSP and simply see what could be done by the market. Seen in this context, the CPSU and the staff knew the scope and commented upon it. This would be consistent with the evidence of Ms Stork which said the RFT was the “what” was being considered and the market would respond with the “how” it could be implemented. Each case will turn on its own facts but it seems to me that DTF had made a decision to contract out the work without knowing whether or not an external provider could provide the service any better. I have come to that view because there is nothing before me which would support a conclusion that the work of staff could be undertaken in a more cost effective and productive manner by an external provider.

[14] This is why this is such a difficult matter about consultation. One the one hand staff and the CPSU are being asked to “compete” with the notion that an external contractor can do it better without knowing on what basis the department believes this to be the case. There are general headings in the “clause 10 letter” but it is light on detail.

[15] I have reached that conclusion that I will not seek to interfere with the process put in place by DTF because:

● The history of the matter has involved discussions with staff and CPSU.

● I am satisfied that DTF did make a genuine effort to consult and its conduct is not vitiated by any failure to provide information which would have been the subject of probity considerations in a tender process.

● The timing of the application does not favour intervention. In circumstances such as this, it may have been better to seek to deal with consultation requirements prior to the commencement of any tender process.

[16] In all the circumstances of this case I dismiss the application.

DEPUTY PRESIDENT

Appearances:

K. McFarlane on behalf of the CPSU, the Community and Public Sector Union.

B. Murray Solicitor for the Department of Treasury and Finance.

Hearing details:

2013.

Melbourne:

November, 29.

 1   PR911257 at paragraph 25.

 2   Australia Parliament Standing Committee on Employment, Education and Workplace Relations; an inquiry into issues specific to mature-age workers, published 14 August 2000.

 3   Re: Cram and Others; Ex parte NSW Colliery Proprietors’ Association Limited and Others [(1987) 163 CLR 117 ] XPT Case [Print F6941].

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<Price code C, AG895510  PR545742>