CPSU, the Community and Public Sector Union v State of Victoria (Department of Justice)
[2014] FWC 1717
•12 JUNE 2014
[2014] FWC 1717 |
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)
State and Territory government administration | |
DEPUTY PRESIDENT SMITH | MELBOURNE, 12 JUNE 2014 |
Alleged dispute concerning new roster proposal.
Introduction
[1] This is an application to resolve a dispute in relation to proposed changes to ordinary hours of work for shift worker custodial officers at the Dame Phyllis Frost Centre (DPFC). The dispute requires consideration of a number of clauses of the Victorian Public Service Workplace Determination 2012 [AG895510] (the Determination). There is no jurisdictional impediment to a determination of the matter.
[2] The matter involves custodial officer members of CPSU, the Community and Public Sector Union (CPSU) and the State of Victoria—Department of Justice (Justice).
[3] At the commencement of proceedings permission to appear was given to Mr M. Harding of counsel, for the CPSU and Mr J. Forbes of counsel, for Justice.
[4] The parties agreed that the question for resolution is:
“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?”
[5] It is submitted by CPSU that the answer to the question is no, and that conclusion can be drawn from the history of the provision and by removing an ambiguity.
[6] For Justice, it is argued that the answer is yes, and that is from applying the plain meaning of the words.
The relevant provisions of the Determination
[7] To begin it is appropriate to set out the relevant provisions of the Determination which require consideration.
[8] The definitions clause in the Determination defines shift work as:
3.14 “Shift Work” means rostered ordinary hours of work averaging 76 hours per fortnight and which regularly includes Sundays and Public Holidays (or, in respect of Custodial Officers in the Custodial Officers Structure, rostered ordinary hours of work averaging up to 80 hours per fortnight and which regularly includes Sundays and Public Holidays, subject to clause 3 of Appendix 1).
[9] In Part 5 of the Determination, hours of work and related matters are dealt with and what then follows is the definition under the shift work clause and how rosters are altered.
33.1 What is Shift Work
33.1.1 Shift Work is when an Employee is required to perform rostered ordinary hours of work averaging 76 hours per fortnight, except for Custodial Officers in the Custodial Officers Structure whose ordinary hours of work may be up to 80 hours per fortnight over a roster cycle, subject to clause 3 of Appendix 1. Ordinary hours of work must include as part of a regular pattern or regular roster cycle.
33.4 Alteration to roster arrangements
33.4.1 The Employer may change the Shift Work roster following consultation with the affected Shift Workers.
33.4.2 Changes to the roster will take into consideration both the operational requirements of the Employer and the personal requirements of the affected Shift Workers to ensure that such changes are implemented in a smooth and harmonious manner.
33.4.3 Where the Employer proposes to change the character of the Shift Work roster (such as an alteration to the number of days worked in any roster cycle), at least 14 days’ notice will be provided prior to the implementation of the Shift Work roster to allow any objection to be raised which goes to the character of the Shift Work roster consultation with the affected Shift Workers.
33.4.4 The Employer may change the Shift Work roster without written notice, if the Employer is of the reasonable opinion that an emergency exists.
33.4.5 A Shift Worker may request the Employer approve a change to rostered Shift Work times by giving to the Employer 48 hours’ written notice of the proposed change
33.4.6 The Employer must display a roster for Shift Workers in a convenient area fourteen days prior to the effective date.
[10] Finally Appendix 1 is the agency specific aspect of the dispute. Appendix 1 contains the following:
3 HOURS OF WORK AND ADDITIONAL SALARY INCREASES
3.1 In addition to clause 32.1 of Section 1 of this Determination, the hours of work and additional salary increases for Employees of Corrections Victoria will be subject to the principles set out below which were preserved by the Public Service (Non Executive Staff—Victoria) (Section 170MX) Award 2000 arising from Commissioner Hingley’s decision in Print P2157:
3.1.1 Any person employed as an ongoing or fixed term Custodial Officer within Corrections Victoria may indicate a preparedness to be rostered by the Employer on a trial basis to work up to 80 ordinary hours over 9 days per fortnight (“the trial”);
3.1.2 An Employee shall notify his or her preparedness to work up to 80 ordinary hours over a 9 day fortnight in accordance with sub-clause 3.1.1 of this Appendix by giving written notice to his or her appropriate Manager;
3.1.3 Upon receiving written notification in accordance with sub-clause 3.1.2 of this Appendix, the Employer shall consult as soon as practicable with the Employee(s) and the Union to determine whether it is practicable for the Employee(s) to participate in the trial rostering arrangements;
3.1.4 If the Employer, the Employee(s) and the Union (“the parties”) agree that it is practicable for a trial to operate in relation to the Employee’s workgroup, the Employer shall implement, as soon as possible but within 28 days of receiving notification in accordance with clause 3.1.2 of this Appendix, trial rostering arrangements pursuant to which the Employee(s) will work up to 80 hours on 9 days per fortnight;
3.1.5 Where an Employee indicates a preparedness to work up to 80 ordinary hours he or she will, unless already in receipt of the 5.2 per cent payment for the extra 4 hours per fortnight, receive a salary increase of 5.2 per cent (being pro rata payment for the additional 4 hours per fortnight worked) from the date the trial is implemented;
3.1.6 Employee(s) participating in the trial will, unless already in receipt of the 3 per cent payment for translation into the Custodial Officer (COG) structure, receive an additional 3 per cent pay increase from the date the trial is implemented;
3.1.7 The criteria for assessment of the trial will be determined by the employer, in consultation with the Employee(s) and the Union, in advance of the trial. The criteria shall be based on, at least, the pre-trial level of service;
3.1.8 The Employer will monitor the operation of the trial in consultation with the Employee(s) and the Union throughout the trial period. Consultation will involve the employer providing all relevant information to Employee(s) and the Union, on a regular basis, to allow them to monitor the trial against the agreed criteria;
3.1.9 The parties agree that they will co-operate in good faith to address any difficulties that may arise during the trial period;
3.1.10 If:-
3.1.10.1 it does not prove possible to address major operational difficulties in the conduct of the trial; and
3.1.10.2 after consultation with the relevant Employee(s) and the Union on the major operational difficulties
then the trial may be terminated by the Employer providing four weeks’ notice to the relevant Employee(s) and the Union;
3.1.11 The trial will be reviewed before the end of the six month period. This review will be conducted by reference to criteria determined in accordance with sub-clause3.1.7 of this Appendix, with a view to determining whether modified shift arrangements should remain in place;
3.1.12 If the review in sub-clause 3.1.11 of this Appendix demonstrates that the trial was successful, the relevant Employee(s) will adopt the hours arrangement used during the trial period as the normal rostering practice and will continue to be paid the rates of pay which operated during the trial;
3.1.13 If the review in sub-clause 3.1.11 of this Appendix demonstrates that the trial was unsuccessful, the relevant Employee(s) will revert to their pre-trial roster arrangements and the rates of pay pertaining thereto.
The contentions
[11] The CPSU argued that custodial officers may work up to 80 hours per fortnight over a roster cycle subject to clause 3 of Appendix 1. It argued that clause 3 of Appendix 1 is facilitative to enable a trial to take place. It argued that the trial was 80 hours over 9 days and this became the rostering practice in circumstances where Custodial Officers indicated a preparedness to work up to 80 hours. In addition, given the history of the matter, it was argued that the term “per fortnight” could only mean over 9 days. This, it argued, was the basis of the provisions in the Determination.
[12] Therefore the CPSU submitted that the answer to the question agreed upon was “no”. It submitted that the Determination did not permit Justice to alter the number of days that it could roster custodial officers beyond 9 per fortnight.
[13] Justice argued that it wanted to change the roster arrangements so that custodial officers could work 80 hours over 7 days each fortnight on the basis that this would align shifts with the 11.5 unlock hours per day when inmates required supervision.
[14] Justice submitted that clause 33.4 provided unambiguous support for the proposition that it could alter the number of days worked in a roster cycle [see clause 33.4.3]. Justice rejected the CPSU’s assertion that the “per fortnight” concept could only mean 9 days and not 14 days. Further, it argued that the history of the clause did not support the contention of the CPSU that the operation of the 80 ordinary hours was restricted to 9 days.
The evidence
[15] The CPSU called three witnesses, they were:
- Mr Andrew Capp, the Team Leader for Police and Prison with the CPSU;
- Mr Julian Kennelly, the Media and Communications Manager for the CPSU, and
- Mr Wayne Townsend, Senior Industrial Officer for the CPSU.
[16] Mr Capp gave evidence on the roster pattern at DPFC and that it had been 80 hours over a 9 day fortnight since 2000 when DPFC became part of the Victorian Public Service. His evidence was that prior to the 2000MX Award which covered custodial officers, shift workers either worked ordinary hours of 76 over a 9 day fortnight or 80 ordinary hours over a 10 day fortnight, for those who were on individual contracts of employment.
[17] It was the evidence of Mr Capp that the 2000MX Award implemented an arrangement of 80 ordinary hours over a nine day fortnight on a trial basis.
[18] Mr Kennelly’s evidence went to the political objectives of the then Kennett Government where prison officers, to access transfers, promotions or employment were required to enter into individual employment agreements. His evidence covered the circumstances surrounding the decision 1 of Commissioner Hingley where access to a 3% increase in salary only applied to persons who were prepared to increase their ordinary hours to 80 per fortnight but within the context of a 9 day fortnight. Prior to that there had been disputes about rostered hours of either 76 ordinary hours over 9 or 10 days or 80 ordinary hours over ten days.
[19] The evidence of Mr Townsend went to the history of negotiations in relation to the number of ordinary hours worked over 9 or ten days. His evidence was that, on the employers figures, the vast majority of custodial officers worked a roster cycle of 80 hours over 9 days and that a number work 76 hours over 9 days and that only 73 custodial officers do not have a 9 day fortnight out of a population of 2,131 custodial officers.
[20] Mr Townsend recited his involvement in enterprise bargaining and stated that he believed the standard hours for custodial officers was based on a 9 day fortnight. His evidence was that this was the basis for the use of the word fortnight in the determination and that he had never heard the Department put forward any other understanding of the term “fortnight”.
[21] Justice called:
- Mr Nick Harding—Manager Workplace Relations for the Department of Justice;
- Mr Brendan Money—Assistant Commissioner, Sentence Branch for the Department of Justice
- Mr Alan Chadwick—Manager Employee Relations in the relevant area from February 1985 until 28 October 2004.
[22] The evidence of Mr Harding acknowledged that the predominant roster arrangement for Custodial Officers was 80 ordinary hours over 9 days of each 14, but there were other roster arrangements which included: 9/76, 10/80, and 8/80. His evidence went to the establishment of these rosters.
[23] In dealing with the reason why Justice wished to change the roster arrangements at DPFC, Mr Harding stated that Justice wanted to change the roster for custodial officers from a 9/80 to a 7/80 roster comprising six 12 hour shifts and one 8 hour shift per fortnight. He added that the reason why this change is sought is to allow Justice to better align the hours of duty of custodial officers at DPFC with the 11.5 unlock hours per day with inmates requiring out of cell supervision.
[24] Mr Harding also reviewed the history of the desire by Justice to increase ordinary hours to 80 from 76 and that over time the 9/80 would become the normal rostering practice. Mr Harding stated that the history demonstrated that the 9/76 was a legacy roster.
[25] Mr Harding agreed that Justice did not seek to bargain on rostering arrangements and the instruments contemplated that the employer could change rosters with notice and appropriate consultation.
[26] The evidence of Mr Money was a factual recital of the shift arrangements at DPFC. He was not called.
[27] Mr Chadwick too was able to provide some historical context to the regulation of public sector run prisons and in particular DPFC. In particular Mr Chadwick dealt with the decision of Commissioner Hingley where he provided an avenue for translation to a 9/80 fortnight and access to a 3% pay rise. Mr Chadwick gave some evidence as to the shift arrangements in private prisons.
Construction of agreements
[28] There appears to be little difference between the parties as to the principles which should be applied to construction. Reference was made to the often used decision of Madgwick J in Kucks v CSR Ltd [(1996) 66 IR 182 @ 184]:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award.”
[29] It is also true that when seeking to construe industrial instruments the first rule is to look at the words but this is not done in isolation from its context and setting (Project Blue Sky Inc v Australian Broadcasting Authority [(1998) 194 CLR 355 @ 381]). Relevantly Mason J in Codelfa Construction v State Rail Authority of NSW [(1982) 149 CLR 337] concluded that in seeking to give meaning to an agreement it is not the subjective intentions of the parties, but rather what is the presumed mutual intention of the parties following an objective review of the circumstances surrounding the making of the agreement.
Conclusion
[30] Without seeking to oversimplify the issue between the parties, it is appears that the CPSU rely on the history of negotiations about hours of work and rosters to put forward the proposition that at no stage in the making of various agreements did it agree to an open-ended approach to rostering custodial officers on any days over an 80 hour fortnight. It argues that from an irregular base which existed through the application of Australian Workplace Agreements, there was a negotiated and arbitrated approach to having custodial officers move to an 80 hour fortnight from a 76 hour fortnight but that agreement was reached that such hours would be performed over 9 days. Indeed, it is argued that the conduct of the parties demonstrates what was the mutual intention of the parties. With very little variance, the most common roster is the 9/80.
[31] Justice argues that a fortnight means what is says, namely 14 days and that rosters for 80 hours can be constructed over that time. It submits that its view is confirmed by the fact that with certain notice it can alter the roster. It follows from this submission that there is no ambiguity. Justice can alter the roster given consultation and appropriate notice.
[32] It is plain from the evidence that Agreements were made against the background of a roster for the overwhelming number of custodial officers of 9/80. There is no evidence to suggest that Justice or its predecessor was seeking to have a regime where it could, in an adhoc way, alter the structure of a roster.
[33] However rosters have been altered and the Determination clearly contemplates a method by which rosters can be altered. Clause 33.4.3 provides:
33.4.3 Where the Employer proposes to change the character of the Shift Work roster (such as an alteration to the number of days worked in any roster cycle), at least 14 days’ notice will be provided prior to the implementation of the Shift Work roster to allow any objection to be raised which goes to the character of the Shift Work roster consultation with the affected Shift Workers. (The emphasis is mine.)
[34] If clause 33.4.3 has any work to do it would appear that action under that clause would disturb the history and context of the operation of rosters for custodial officers. On the other hand, taking the submission of the CPSU to its logical conclusion clause 33.4.3 has no work to do as 80 hours and 9 days are the norm and reflects the mutual intention of the parties when aspects of the Determination were negotiated.
[35] I find that there is an uncertainty in the operation of the Determination.
[36] The circumstances facing Justice arise from the economic, capacity and efficiency pressures on the prison system at present. Further, the approach by private prisons has also added weight to the impetus for change. However change cannot be at large as the evidence of Mr Townsend sought to demonstrate.
[37] At this stage I will not vary the Determination without further submission as to how it should be varied to remove the uncertainty. To this end I direct the parties to serve on each other and lodge the Commission any proposed order to remove the uncertainty. The matter will be listed for further hearing at 2.15 p.m. on 2 July 2014.
DEPUTY PRESIDENT
Appearances:
M. Harding of counsel for the CPSU, the Community and Public Sector Union.
J. Forbes of counsel on behalf of the State of Victoria (Department of Justice).
Hearing details:
2014.
Melbourne:
March, 5, 6 and 7.
1 Print F2157
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