CPSU, the Community and Public Sector Union v G4S Custodial Services Pty Ltd

[2014] FWC 4684

[2014] FWC 4684

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

CPSU, the Community and Public Sector Union
v
G4S Custodial Services Pty Ltd
(C2014/5221)

Corrections and detentions
COMMISSIONER BISSETT	MELBOURNE, 29 JULY 2014

Alleged dispute about matters arising under the enterprise agreement - failure to consult - change in rosters - interim order sought - application dismissed.

[1] The CPSU, the Community and Public Sector Union (CPSU) has made an application for the Fair Work Commission (the Commission) to deal with a dispute in relation to consultation under the G4S Custodial Services Pty Ltd. Correctional Services Enterprise Agreement 2011 (the Agreement). The application was made at 6.14pm on Tuesday, 1 July 2014

[2] The dispute relates to a notification sent to employees of G4S Custodial Services Pty Ltd (G4S) employed at Port Phillip Prison on or about 16 June 2014 in which staff were notified of a new work roster (the new roster) to apply at Port Philip Prison and associated work locations including St Augustine’s secure ward at St Vincent’s Hospital. The new roster was to take effect from Sunday, 6 July 2014.

[3] The dispute was subject to a conciliation conference on 3 July 2014. The dispute was not resolved at that conference and the CPSU sought to have an interim order issued to halt implementation of the new roster until the dispute was resolved. The hearing for the interim order was held at 4.15pm on Friday, 4 July 2014.

[4] At the completion of that hearing I advised the parties that the application was refused and I did not intend to issue the interim order sought. I provided brief reasons as to why I had reached that decision and advised that detailed reasons would be provided in due course. These are the full reasons for my decision.

Background

[5] In June 2013 G4S advised employees and the CPSU of its intention to review the rosters that operate at both the Prison and the secure hospital ward. In January 2014 G4S advised employees and the CPSU that it had engaged Shift Work Solutions to review the roster system.

[6] On 5 May 2014 (the May letter) G4S wrote to the CPSU and advised it was in position to provide a detailed set of roster proposals to the CPSU delegates and staff and that a ballot or similar process would be used to allow staff to select their preferred option. The letter also gave notice, as required under the Agreement, that the roster changes would be implemented on 1 June 2014.

[7] By letter dated 16 May 2014 (although acknowledged by all that it should have been dated 16 June 2014 (the June letter)) the Respondent advised staff that it intended to introduce the new roster from 6 July 2014. Attached to the letter was the relevant roster for the employee.

Matters to be decided

[8] In deciding whether or not to issue interim orders I must be satisfied that firstly, there is power to make the order sought, second, there is a serious question to be answered and third, the balance of convenience supports making the order as sought. I consider each of these issues in turn.

Jurisdiction

[9] Section 589 of the Fair Work Act 2009 (the Act) gives power to the Commission to ‘make an interim decision in relation to a matter before it’. Such a decision can be made on the Commission’s own initiative or on application. Section 598(4) of the Act provides that a decision of the Commission may be made by order.

[10] The matter before me arises pursuant to the dispute settling procedure of the Agreement. Clause 33 of the Agreement makes it clear that, in settling disputes pursuant to the Agreement, the Commission may deal with the matter by conciliation and/or arbitration and, in dealing with the matter, the Commission can exercise the procedural powers of the Act.

[11] I am therefore satisfied that the dispute is over a matter arising under the Agreement and that the requirements of the dispute settlement procedure of the Agreement have been met such that jurisdiction exists for the Commission to arbitrate the matter in dispute.

Serious question to be tried

[12] The CPSU submits that the serious question to be tried is: whether, in accordance with the requirements of clause 35.5(a) of the Agreement, the Respondent has (a) discussed with effected employees, and (b) informed those employees of the effects of the introduction of the new roster system after having made a definite decision to introduce the new roster system.

[13] The CPSU says that the Respondent has failed to meet these requirements. Further, the CPSU submits that the Respondent has failed to comply with the obligations in clause 21 of the Agreement which requires that consultation on any changes to rosters be carried out consistent with the consultation provisions of the Agreement. On this basis the CPSU submits that, even if the change proposed to rosters is not a ‘major change’ such that clause 35 is not invoked by right, clause 21 requires the matter be dealt with in accordance with the procedures in clause 35 and this has not occurred.

[14] Clause 35 of the Agreement provides (in part):

35. Introduction of changes

35.1 This term applies if:

(a) the employer has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise; and

(b) the change is likely to have a significant effect on the employees of the enterprise.

35.2 The employer must notify the relevant employees of the decision to introduce the major change.

35.3 The relevant employees may appoint a representative for the purposes of the procedures in this term.

35.4 If:

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative; the employer must recognise the representative.

35.5 As soon as practicable after making its decision, the employer must:

(a) discuss with the relevant employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the employees; and

(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

(b) for the purposes of the discussion—provide, in writing, to the relevant employees:

(i) all relevant information about the change including the nature of the change proposed; and

(ii) information about the expected effects of the change on the employees; and

(iii) any other matters likely to affect the employees.

(emphasis added)

[15] The CPSU submits that the definite decision referred to in clause 35.1 in this matter is the definite roster proposal put to staff in the June letter. Having made that definite decision it submits that the obligation to provide all relevant information and inform staff of the expected effect of the changes under clause 35.5(b) and to hold the discussion with staff on the effect of the change and steps to avert or mitigate adverse effects (clause 35.5(a)) is then enlivened.

[16] The CPSU submits that the advice in the May letter was not advice of any definite decision but rather advice of proposals. As such it says that the obligations under clause 35.5, in particular, were not necessarily enlivened at that point. Before the June letter the CPSU says that there was nothing more than a range of possibilities that were being considered and no definite decision had been made by the Respondent. Further, as per the advice of the May letter, the CPSU expected that some proposals would be put to staff and they would be given an opportunity to indicate their preferred roster. (In any event the Respondent says that it discovered its alternative proposal would have breached the provisions of the Act. It was therefore not possible to put it to employees.)

[17] The CPSU submits that the Respondent, having advised staff that a definite roster change was to be implemented in the June letter, was then required to hold discussion with the employees on the introduction of the new roster, its effect and measures the Respondent intended to take to avert or mitigate the adverse effects of the change. This, it submits, has not occurred.

[18] The CPSU says therefore that the Respondent has not met its obligations under clause 35 of the Agreement.

[19] Alternatively, the CPSU says that the requirement to consult arises from clause 21.2 of the Agreement. Clause 21.2 states:

21.2 Rostering and Operational Requirements

(a) Dispositions

(i) Daily dispositions will be completed in a timely manner...

(ii) ...

(iii) Rosters will be reviewed as and when required and altered in order to ensure that Weekends and Night rosters are evenly spread across all relevant lines, whilst maintaining the good order of the prison. Consultation on any changes make will occur through the established processes, involving employees and consultative committees and consistent with the consultation provisions of Part 4 of this agreement.

(iv) ...

(v) Changes to rostering is based on operational and customer requirements provided that the consultation provisions of Part 4 of the Agreement have been complied with.

(emphasis added)

[20] The CPSU submits that clause 21 requires that the Respondent consult as it would otherwise be required to do in accordance with clause 35 and that, for the reasons given above, it has failed to do so.

[21] The Respondent submits that there is no serious question to be tried in respect to clause 35 or 21 of the Agreement.

[22] The Respondent submits that the definite decision made by the employer was the decision to review the rosters. This decision, it submits, was made and communicated to staff and the CPSU in June 2013. Following this it says there was extensive consultation with employees and the CPSU.

[23] The Respondent says that, on the CPSU’s construction, the definite decision was not made until the June letter. This would mean there was no requirement to consult with employees or the CPSU until June 2014 when a decision had been made on the final rosters to be implemented. This would severely curtail the capacity of the CPSU and employees to influence the final decision of the Respondent before that decision was made. Further, it says that the CPSU’s own view of when the ‘definite’ decision was made is narrow and contrived.

[24] The Respondent submits that the CPSU has not identified any flaws in the consultation process that took place between June 2013 and June 2014. It submits it has consulted and that, ultimately, the employees just do not want the change proposed by the new rosters.

[25] The Respondent says that there is no question to be answered, it has met its obligations and the consultation requirements have been properly undertaken.

Consideration

[26] The matters raised by the CPSU go to what the ‘definite decision’ is made by the Respondent, when this was made and at what point in time the obligations under clause 35.5 are enlivened. The timing of this decision is critical to the timing of the consultation which then must occur.

[27] Consultation has a purpose and it cannot be conducted for mere show. If the consultation does not provide the CPSU and effected employees with an opportunity to influence the decision it is of no value and the requirement to consult and the consultation is hollow.

[28] By the same token at some point management must be able to settle on its ‘final’ position and determine to proceed, having taken into account the views of the CPSU and employees expressed through consultation.

[29] I acknowledge the substantial consideration of a similar matter in the decision in Ingersole v Castle Hill Country Club Limited 1(Ingersole). In that matter his Honour Judge Barnes considered the obligations imposed by a consultation clause in an award. That clause is not substantially dissimilar in form to that under consideration in this matter although clause 35 in the Agreement has made some modifications to the model consultation clause that appears in the award.

[30] His Honour found in Ingersole that the Award term in that matter did not impose a consultation obligation in relation to mere proposals that had not been decided upon by the employer. 2 The same is true in the Agreement clause. He found:

If the only relevant definite decision is a decision to terminate employment of an employee or employees the obligations will not arise prior to that decision. In contrast, if the employer engages in a two-step decision-making process, the obligation will arise when the initial “definite decision” to introduce major change is made by the employer. 3

[31] His Honour observed that the consultation clause contained in the Award:

would clearly encompass a two-step process involving a definite general policy decision to introduce major changes in organisation or structure on which consultation would be required before any subsequent impacts, such as particular redundancies, were put into effect... 4

[32] Whilst his task, as he described it, was to determine when a definite decision had been made that activated the consultation obligations, he found in the matter before him that it had not been established that there was an initial and separate decision to introduce workplace change to the decision to make the Applicant’s position redundant.

On the evidence before the Court there is no warrant for finding that a “definite decision” was made by the Club (that is, by relevant decision-makers on behalf of the Club) to make Ms Ingersole’s position redundant before the redundancy resolution was passed on 29 February 2012. It has not been established that the Club (through its decision-makers) made a definite decision (such as a decision to restructure its management) separate from and prior to the decision it made to make two positions, including the Applicant’s position, redundant. While there are circumstances in which an employer’s decision-making in relation to a change which could eventuate other changes such as redundancy may involve a two-step process (as may be seen to have occurred in 2010) this is not such a case. 5

[33] On this basis he found that there was only one relevant definite decision which then enlivened the obligations under the consultation clause of the Award.

[34] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited 6 (QR), Logan J, after considering a number of decisions from the AIRC on the requirement to ‘consult’, observed at [44], that those decisions:

serve to confirm an impression as to the content of an obligation to “consult” evident from the dictionary meaning of the word. A key element of that content is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

[35] The decision in Ingersole recognises that there may be a two-step process in the decision making - an initial definite decision that then invokes the requirement to consult in accordance with the consultation procedures of the relevant industrial instrument and then a final decision influenced by the consultation that has occurred. The determination of the matter before me will involve a consideration of when the definite decision was actually made that then invoked the consultative requirements of the Agreement.

[36] I do not need to decide now when the definite decision was made to introduce the changed rosters. It is enough to recognise that this is a real question on which there is substantive dispute, such that one of the conditions for granting the interim order is satisfied.

[37] I am therefore satisfied that there is a question to be answered, that is, at what point in time did the Respondent make a ‘definite decision’ as envisaged in clause 35.1 such that the obligations under clause 35.5 are enlivened.

Status quo

[38] The CPSU puts an alternative to the Commission, should the above matters go against it. It says that the dispute settling provisions of the agreement, on its own, requires that the status quo should be maintained to allow further consultation and/or arbitration of the matter in dispute. The interim order should therefore be granted to allow that to occur.

[39] Clause 33 of the Agreement sets out the dispute settlement procedure for the purpose of resolving disputes about the Agreement. Clause 33.5 states:

33.5 It is a term of the Agreement that while the dispute resolution procedure is being conducted work will continue normally unless an Employee has a reasonable concern about an imminent risk to his or her health and safety.

[40] The Respondent submits that at the time the CPSU made its application for the Commission to deal with the dispute the Respondent had notified employees of the new roster in accordance with clause 21.6 of the Agreement and that the new rosters would be implemented on 6 July 2014. In fact, at the time the application was made the employees had been advised some 11-15 days earlier of the intended new roster.

[41] The Respondent therefore says that the continuation of work as normal, as contemplated by the dispute settlement procedure, is the implementation of the new rosters as this is the ‘normal work’ that was being undertaken at the time the application was made.

[42] The Respondent says that its submission on this point is supported by the comments of Counsel for the CPSU who, when asked by the Bench as to why the dispute was not notified earlier, stated that the CPSU had been in discussions with the Respondent since 20 June 2014 in an effort to resolve the dispute. If those discussions had commenced post 20 June 2014 then the dispute being discussed must have been the new roster.

[43] In the circumstances, having found that there is a question to be answered in respect of when the ‘definite’ decision had been made I do not consider it necessary to consider the alternative matter.

Balance of convenience

[44] The third matter to determine is where the balance of convenience lies.

[45] The CPSU submits that there are a substantial number of issues associated with the introduction of the new roster such that the rosters have a direct adverse effect on its members. These effects are such that the balance of convenience favours the granting of the interim order.

[46] The CPSU rely on the evidence of Mr Antoun Raphael, a correctional officer and the President of the CPSU sub-branch committee at Port Phillip Prison. Mr Raphael identified a number of issues with the new roster that would affect specified staff in the week following its introduction. This included rostering of an employee on days it is agreed she would not be rostered and where she has family responsibilities, the introduction of the roster resulting in an employee going from night to day shift without a break and a couple who have traditionally been rostered on the same shifts who are now rostered on different shifts.

[47] Further general issues go to the number of officers allocated to the general duties roster, crib relief; the introduction of an additional shift in each year without a commensurate increase in pay; and the combination of the St Augustine’s and escort rosters. His evidence is that the new roster will create confusion for staff and uncertainty for prisoners.

[48] Mr Raphael gave evidence that it would not be difficult to advise staff effected of the reversion to the old roster if the interim order was granted. He estimated that a total of 60-80 staff would need to be advised and this could be done through the control room 7 and with the assistance of the union.

[49] The Respondent submits that often, in considering the balance of convenience, the question being considered is whether the action the interim order is designed to stop can be undone if the subsequent order is not granted. In this case it submits that, if the interim order is not made and the new roster comes into play, should the CPSU ultimately be successful in its application the old roster can be reinstated.

[50] The Respondent also submits that the requirements of clause 35 are to consult. There is no obligation to reach agreement. It says that the consultation process has been proceeding since June 2013 when it advised of its intention to change the rosters. To not grant the interim order will only result in the union losing the right to one technical aspect of consultation in an environment where consultation has been occurring for 13 months. Should the CPSU ultimately be successful it would only require that G4S listen to what the CPSU has to put. It does not need to accept what is put. The injustice it says would be greater on G4S than on the CPSU were the interim order granted. The balance of convenience therefore lies in not granting the interim order.

Consideration

[51] I have given careful consideration the question of where the balance of convenience lies. I am satisfied, in this case, that, should I not grant the application for interim orders and that the roster changes should proceed. In this case the ‘egg’ can be ‘unscrambled’. That is, with appropriate notice, the old rosters can be restored.

[52] The ‘urgency’ of the application made by the CPSU is undermined by the fact that it, along with its members, was aware of the proposed roster changes more than 14 days before the change was to be implemented (the advice to employees was in the letter erroneously dated 16 May 2014 which was sent on 16 June 2014 but received some time after that date and perhaps as late as 20 June 2014). The application to the Commission to deal with the dispute, which was identified as the introduction of the new roster, was made at 6.14pm on Tuesday 1 July - effectively 2 July 2014 - requesting an urgent conference. That conference was conducted on Thursday 3 July 2014 where the matter failed to settle, resulting in an urgent hearing on at 4.15pm on Friday 4 July 2014, less than 36 hours before the new roster was due to commence.

[53] Whilst the Commission does appreciate the time required to digest what was being proposed by the employer and to determine the most appropriate way of dealing with it, an application at the time the new roster was advised may well sway a balance of convenience argument in favour of the CPSU because of the time between dealing with the matter and the intended introduction date of the new roster.

[54] I have considered that the employees of the Respondent could reasonably expect to be working the new roster on Sunday 16 July 2014 and will have made appropriate arrangements to do so. It seems to me that there are three distinct groups of employees, each of which will have made different arrangements. The first group comprises those employees who were rostered to work on Sunday under the old roster but are not required to work Sunday under the new roster - they will have made arrangements as to how they might use the previously unexpected leisure time. The second group is those not rostered to work on Sunday under the old roster but rostered on under the new roster - they will have made such arrangements as are necessary to attend work, including re-arranging what would otherwise have been leisure time. The third group is those whose circumstances have not changed for Sunday, the first day of the new roster - they are either still rostered on or still rostered off.

[55] To grant the application will result in advice having to be given to both the first and second group. There are employees who thought they would not be working who need to be called into work and those who thought they would be working who need to be told not to attend.

[56] The lateness of this hearing, and in particular that it is on the eve of the weekend, makes this task of notification much more difficult for the Respondent. Whilst I appreciate the assistance offered by the CPSU (and I have no doubt of its ability to get information to its members) this does not detract from the responsibility of the Respondent to advise its employees.

[57] Whilst I initially had some concerns that the granting of the interim order would result in the Respondent being required to introduce a roster (albeit the old roster) without the required 14 days notice, and this weighed against the CPSU in terms of the balance of convenience, I am satisfied that the CPSU, at least, would have waived this requirement as it has the power to do under the terms of the Agreement.

[58] These circumstances weigh the balance of convenience in favour of the Respondent.

[59] I have carefully considered all of the material before me including the evidence and submissions of the CPSU and G4S. In this case and in these particular circumstances I find the balance of convenience favours not granting the application.

Conclusion

[60] The application for interim orders is dismissed.

[61] Having reached this conclusion I encourage the Respondent to quickly and sympathetically deal with any unforeseen negative consequences of the introduction of the new roster such as those identified by Mr Raphael in his evidence.

COMMISSIONER

Appearances:

M. Albert of Counsel with E. Burgio for the Applicant.

M. Follett of Counsel with P. O’Halloran for the Respondent.

Hearing details:

2014.

Melbourne:

4 July.

 1 [2014] FCCA 450.

 2 Ibid [136].

 3   Ibid [136]

 4 Ibid [150].

 5 Ibid [175].

 6 [2010] FCR 591.

 7   The matter was heard late on Friday 4 July 2013. The new roster was scheduled to commence Sunday 6 July 2014. Any notification would need to be done on the Saturday which is not a normal work day for administrative staff of G4S so special arrangements would need to be made to enable notification to occur.

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