CPSU, the Community and Public Sector Union v State of Victoria (Department of Justice)

[2014] FWC 4010

[2014] FWC 4010 [Note: An appeal pursuant to s.604 (C2014/5059) was lodged against this decision - refer to Full Bench decision dated 19 September 2014 [[2014] FWCFB 6153] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

CPSU, the Community and Public Sector Union
v
State of Victoria (Department of Justice)
(C2013/5122)

DEPUTY PRESIDENT SMITH MELBOURNE, 17 JUNE 2014

Alleged dispute concerning new roster proposal.

[1] On 12 June I issued a decision 1 in which I found uncertainty to exist in the Victorian Public Service Workplace Determination 2012 (the Determination). Yesterday, solicitors representing the State of Victoria (Department of Justice) wrote pointing out:

• The Fair Work Act 2009 does not permit any variation to the Determination (see s.279 (2)(f) and s603(3) (c), and,



• Both counsel appearing agreed on this point.

[2] This is undoubtedly correct and therefore the decision is wrong. I am grateful that this has been drawn to my attention in the way that it has. I am asked to determine the agreed question which was:

“For a custodial officer shift worker who works a roster pattern of 80 ordinary hours over a 9 day fortnight period, does the Determination permit the Department to change the roster pattern in the form of a change to the number of days in the fortnight over which the 80 hours are worked?”

[3] It is not necessary for me to recite the earlier decision, but this decision should be read in conjunction with that one.

[4] Notwithstanding the basis upon which the original clause was developed and the custom and practice in Victorian Public Prisons, there is a provision in the Determination to alter rosters and that provision is not constrained. Further, it is not possible to read clause 33.1.1 as limiting a fortnight to nine days. A fortnight must be read in its ordinary context namely 14 days. Indeed the 9/80 roster is fixed for a 14 day period. The term ‘9 day fortnight’ is almost a term of art and is intended to convey a meaning that only 9 days are worked within the 14 days thus allowing for additional days off. To ascribe a meaning of nine days to the word “fortnight” would also create a tautology within the clause.

[5] This aspect of the Determination was not in contest when it was made and now it may give rise to issues which were not envisaged when the provisions were formed. It will also be introduced at a testing time for both employees and the Department. The structure around rostering arrangements goes further than the simple proposition that managerial prerogative was exercised. If that had been the case, the Commission has long taken the view that it will not interfere with the prerogative of management to run and organise the business in the most efficient manner subject to that prerogative, not being exercised in a manner which is harsh, unjust or unreasonable 2

[6] In the present matter I must find that the answer to the question is “yes”. The history of the provision does not overcome the express power under the Determination to alter the roster arrangement.

DEPUTY PRESIDENT

 1   ([2014] FWC 1717)

 2   Re:Cram; Ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28

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