National Tertiary Education Industry Union v Edith Cowan University
[2011] FWA 1903
•2 MAY 2011
[2011] FWA 1903 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
National Tertiary Education Industry Union
v
Edith Cowan University
(C2010/5433)
COMMISSIONER CLOGHAN | PERTH, 2 MAY 2011 |
Application to deal with a dispute.
[1] This is an application by the National Tertiary Education Industry Union (NTEU) (“the Applicant”) for Fair Work Australia (FWA) to deal with a dispute.
[2] The application is made pursuant to s.739 of the Fair Work Act 2009 (“the FW Act”).
[3] The NTEU is in dispute with Edith Cowan University (ECU) (“the Employer”).
[4] The dispute is referred pursuant to Clause 56 Grievance Resolution Procedures of the Edith Cowan University General Staff Union Collective Agreement 2009.
[5] Clause 56 Grievance Resolution Procedures provides at 56.7 that:
“If the matter still remains unresolved it may then be notified to the relevant statutory tribunal for conciliation or adjudication on its merits. The parties to the grievance reserve the right to make whatever submission or call whatever evidence to the tribunal they wish.”
[6] At a conciliation conference on 23 November 2010, the parties agreed that conciliation had been exhausted and the Tribunal was requested to adjudicate on the dispute.
[7] Both parties agreed that the question to be answered by the Tribunal is as follows:
“Should the three (3) parking bays previously allocated to library shift working staff at Mount Lawley campus of Edith Cowan University be reinstated?”
[8] Further, both parties agreed, at my suggestion, that the answer to the question be determined in the absolute - all or nothing.
[9] The application was the subject of procedural directions issued on 1 December 2010 and 10 January 2011.
[10] At the request of the NTEU, the original hearing on 3 February 2011 was postponed, by agreement, to 3 March 2011.
[11] On 3 March 2011, the following persons gave evidence for the NTEU:
- Mr Lee Jones, Maintenance Officer.
- Dr Lynette Bloom, NTEU WA Divisional Secretary.
- Mr Perry Coles, Library Technician, OSH Representative and NTEU Workplace Delegate.
- Ms Judy Harris, Library Supervisor.
- Mr Swee Kit Wong, Senior Librarian.
- Ms Jayne van Dalen, Organiser, NTEU.
- Mr Tony Cooke, Managing Director, Metanoia Consulting Pty Ltd.
[12] The following persons gave evidence for ECU:
- Mr Dan Archibald, University Librarian.
- Mr Glenn Sutton, Manager Security and Traffic Services.
- Mr Brian Yearwood, Director, Facilities and Services.
- Mr Mike Gavin, Manager, Occupational Safety and Health.
[13] To assist the proceedings, both parties provided a substantial amount of documentation which was incorporated into proceedings. Having received this material, heard submissions and oral evidence, I reserved my Decision. In reaching this Decision, I have given appropriate weight to all the material provided to the Tribunal.
RELEVANT BACKGROUND FACTS
[14] This application relates to the use of three (3) parking bays at the Mount Lawley campus of ECU.
[15] Up until 12 July 2010, the three (3) parking bays were for the exclusive use of afternoon/evening library shift staff at the Mount Lawley campus.
[16] Afternoon/evening shift staff at the library work 1:30pm to 9:30pm Monday to Thursday and to 6:00pm on Friday. During “extended hours” staff work until 10:00pm, Monday to Thursday.
[17] Three (3) staff generally work from 1:30pm to 9:30pm or 10:00pm (“afternoon shift”).
[18] Approximately 15 staff are available to work the afternoon shift, although only three (3) staff work the shift at any one time.
[19] The majority of library shift work staff are female.
[20] ECU operates two campuses in the Perth metropolitan area: Mount Lawley and Joondalup campuses.
[21] Parking bays for the exclusive use of library afternoon shift staff at the Joondalup campus was discontinued in 2009. No dispute occurred with respect to the removal of the dedicated bays at the Joondalup campus.
[22] The dedicated parking bays for library afternoon shift staff at both campuses had been in existence, until their removal, for the entire life of the campuses.
[23] In or around late 2008 to early 2009, library staff at the Mount Lawley campus were notified of the Employer’s decision to discontinue the exclusive use of parking bays for afternoon shift staff and their release for general parking purposes.
[24] As at 2010, the Employer provided parking bays at the Mount Lawley campus as follows:
| 1,110 |
| 337 |
| 57 |
| 1 |
| 20 |
| 128 |
| 20 |
| 30 |
| 2 |
| 14 |
| 5 |
| 1 |
| 21 |
| 8 |
| 5 |
| 1 |
[25] Due to increasing demand for parking bays, ECU has introduced a number of measures, including the decision to review, and if considered appropriate, remove dedicated parking bays for particular work areas.
RELEVANT BACKGROUND FACTS TO DISPUTE
[26] On 27 January 2009, the NTEU lodged a grievance with the University with respect to the application of Clause 68: Preservation of Accrued Rights and Privileges of the ECU General Staff Union Collective Agreement 2006. The application provided that no rights or entitlements currently granted to an employee shall cease unless expressly provided for in the Agreement.
[27] Both parties agreed to put the dispute “on hold” until negotiations for a replacement enterprise agreement had been completed. The replacement enterprise agreement was approved on 16 February 2010.
[28] Subsequent to approval of the replacement enterprise agreement, the parties agreed to refer the dispute to the Disputes Committee. The Disputes Committee received written submissions and interviewed persons who have been described as “witnesses”.
[29] On 25 March 2010, the Disputes Committee’s majority recommendation was that designated parking bays allocated to library afternoon shift staff be released to general use for a trial period of one year. The Employer declined to accept the recommendation.
[30] On or around May 2010, the University advised the NTEU that it intended to reallocate the three (3) library afternoon shift parking bays to general use during the June mid-year academic break.
[31] On 18 June 2010, the NTEU lodged a grievance in accordance with Clause 56: Grievance Resolution Procedures of the ECU General Staff Union Collective Agreement 2009.
[32] The parties met to discuss the grievance. The Employer maintained its position and on 12 July 2010, the three (3) parking bays were released for general use.
[33] On 13 July 2010, the University Librarian wrote to the library staff and provided them with four measures to assist with the removal of the dedicated parking bays.
[34] Notwithstanding the removal of the dedicated parking bays, the parties continued to meet. At a meeting on 3 August 2010, it was proposed that if the University Library purchased the three (3) parking bays, as other businesses are able to do, this would be an acceptable solution to all parties.
[35] The University Librarian, Mr Archibald declined to accept the proposal on the basis that the costs involved, could not be justified.
[36] In or around August 2010, an affected library staff member sought a meeting to further discuss the issue. A meeting was held on 15 September 2010. Following the meeting, the affected library staff employee was advised that the University would not reinstate the dedicated parking bays.
[37] On 3 November 2010, the NTEU lodged an application with FWA pursuant to s.739 of the FW Act to deal with a dispute made pursuant to Clause 56: Grievance Resolution Procedures. The parties agreed that the matter of jurisdiction would not be contested. The dispute was heard on 3 March 2011.
THE APPLICANT’S CASE
[38] The Applicant’s case can be divided into nine categories. They are as follows:
Occupational Health and Safety
[39] The NTEU submit that the University is required to, as far as practicable, provide and maintain a working environment in which employees are not exposed to hazards pursuant to the Occupational Safety and Health Act 1984 (WA) (OH&S Act).
[40] Further the University has a number of policies and procedures which require it to exceed the OH&S Act.
[41] Occupational health and safety is the major concerns of staff 1. Further, prior to the decision being made to remove the three (3) parking bays, the University should have complied with its “ECU Staff Plan, Risk Management Policy and Occupational Health and Safety Policies and Procedures”. In broad terms, the NTEU submitted that, “from our position there have been clear longstanding staff concerns about safety which are backed up by our witness statements and by examination2.
Practicability
[42] Shortly put, the submission was that, if all other parking bays are full, staff would have to park as far away as Inglewood Oval, which is approximately two kilometres away from the library. For practical reasons, library staff should not be required to walk the two kilometres in either the heat of the midday sun or the cold and wet of a winter. Further, it is not practical or safe for staff to walk to their cars at the end of the shift.
Productivity
[43] Two measures have been introduced to minimise safety concerns. They are for staff to move their cars closer to the library during work hours, or for the library afternoon shift staff, to use security officers to escort staff to their cars when they finish work.
[44] The NTEU asserts that both strategies to minimise safety concerns are, in the former, an unproductive use of library staff time, and in the latter, security officer time. For library staff, it could mean up to an hour away from their work and a lesser time for security officers 3.
[45] In the alternative, the NTEU submitted that if library staff have to “make up” for time moving their cars, it placed additional workload pressure on them.
Good Sense
[46] Simply put, the NTEU submitted, “there are a finite number of parks available at Mount Lawley and those people who bring their cars must park somewhere, so wouldn’t it make good sense for these staff to be able to park in a convenient location. There doesn’t seem to be able sense in making them park as far away as two kilometres when there is no need to do so” 4.
Custom and Practice
[47] It was uncontested that library afternoon staff, for a long time, maybe as long as 25 years, were provided with allocated bays close to their work area. Further, other universities provide allocated parking bays for “library shift workers” 5.
Verbal Contract of Employment
[48] The Applicant asserts that many staff were informed on commencing employment that the allocated bays were available for their exclusive use 6.
Cost
[49] In short, this submission stated that the amount to purchase the three (3) parking bays was relatively minimal and less than the cost of staff moving their cars closer to the library during work time. For this reason, the decision of the University Librarian was wrong.
Fairness and Equity
[50] This submission states that if there is good reason for designated parking in other areas of the campus, “a case can be made that there is justification and good reason for the library shift workers to retain their designated parks and if this is a matter of equity, as has been stated by ECU, why is it that the VC or Chancellery would have a designated park while other staff don’t?” 7 Put differently, the NTEU argue that the University had and was prepared to discriminate against the library staff.
Response to ECU’s rationale for removing the designated parking bays
[51] Shortly put, the NTEU believed that the decision by the University was ill considered, placed staff at risk, there is no real reason to do so and it is a bad decision 8.
THE UNIVERSITY’S CASE
[52] Ms Pugsley opened her submission by stating that:
“...It goes without saying, and this is why we're here, that employees don't like it when they're inconvenienced. They don't like it when they've had a long-held benefit which they hold dear and which they find inconvenient to have removed.” 9
Need to increase parking capacity
[53] It was uncontested that growth in demand for the Mount Lawley campus services has resulted in a need to increase parking capacity.
Existing rights
[54] The University concedes, without reservation, that the provision of designated parking bays for library staff has been a longstanding custom and practice 10. However, ECU rejects any assertion that employees have an enforceable right as a condition of their employment.
Process undertaken by the Employer
[55] The University submits that the process which resulted in the removal of the parking bays was lengthy and with due consideration.
Equity and consistency of treatment and potential flow on
[56] The University submits that reinstatement of the parking bays would result in a benefit to these library staff at the campus not available to other employees. In particular, the Tribunal was alerted to the flow on to the library staff at the Joondalup campus, and the potential for other staff at the Mount Lawley campus, to raise grievances about the removal of their dedicated parking bays.
Response to NTEU’s rationale for reinstating the designated parking bays
[57] The University submits that if occupational health and safety is the NTEU’s primary reason for reinstating the three (3) parking bays, why has the issue been progressed as an industrial grievance rather than under the provisions of the OH&S Act (WA).
[58] The University rhetorically infers that the reason why the NTEU did not pursue the issue through the OH&S Act is that if the prevailing conditions constitute an occupational health and safety hazard, then the hazard is applicable to all staff, students and visitors. Consequently, the reinstatement of the three (3) parking bays for library staff would not rectify the hazard.
[59] Further, and finally, the University has introduced a number of actions to improve overall safety concerns at the University, and in particular, for library staff.
Practicability and Productivity
[60] The University acknowledges that if staff do exercise the option of shifting their car closer to the library during working hours, there are implications for productivity, however, that is a matter for the Employer to manage.
Practice at other universities
[61] The University submits that if a comparison with other universities is relevant (it does not agree this is appropriate) a comparison of five (5) out of 39 public universities, that have some parking arrangements for library staff, does not make an argument for dedicated parking bays for afternoon shift library staff.
WITNESS EVIDENCE
Applicant witness evidence
[62] Three library staff gave evidence on behalf of the NTEU.
[63] Mr Coles, Library technician, has been employed at the library at ECU since 1995. Mr Coles is also an OSH Representative and NTEU Workplace Delegate. Mr Coles has, since the removal of the designated parking bays in July 2010, worked an afternoon shift regularly during semesters.
[64] Mr Coles conceded that he had not looked at his contract of employment to determine whether access to a dedicated parking bay was a contractual entitlement but gave evidence that it was “there for us” 11.
[65] Mr Coles gave evidence that as a result of general discussion in tearooms, he was able to say that some of the library staff feel vulnerable and unsafe walking to their cars at the end of afternoon shift 12.
[66] While Mr Coles emphasised the “issue” 13 of proximity to the student housing area, in his written evidence, he gave oral evidence that he had not actually walked past the student housing area at the end of an afternoon shift14.
[67] Further, although Mr Coles gave evidence of incidents in the library, he was unable to give similar examples outside the library involving staff walking to their vehicles at the end of afternoon shift 15. Mr Coles’ evidence was that prior to the removal of the dedicated parking bays, a security escort was provided for the “few steps to our car”16.
[68] In summary, Mr Coles’ evidence was that, “the further you have to travel to your car, then the more risk that’s involved” 17.
[69] Mr Coles conceded that he may be wrong in relation to his evidence relating to the number of security officers and that Inglewood Oval is no longer used for overflow parking.
[70] I find that Mr Coles’ evidence essentially reflected the “feelings” of library staff but there was little direct and objective evidence relating to safety concerns.
[71] Ms Judy Harris is a Library Supervisor who gave evidence that she commenced working at the library in 1990 and was told at her employment interview that bays were provided for afternoon shift staff 18.
[72] Ms Harris has worked twice on afternoon shift since the removal of the designated parking bays.
[73] Ms Harris’ evidence was that she reminds her staff to move their cars closer to the library 19 and that most staff would do so20.
[74] Although Ms Harris heard from other staff regarding incidents in car parks, in the vicinity of student housing and with “suspect people loitering around”, she had never witnessed an incident herself 21.
[75] Prior to the removal of the designated bays, afternoon shift would leave together 22. However, Ms Harris gave evidence that only “sometimes” was it necessary to have a security escort.
[76] Mr Swee Kit Wong is a Senior Librarian at the library. Mr Wong has been a member of the library staff since 1997. Mr Wong’s evidence was brief and that he felt unsafe with the removal of the allocated parking bays. With respect to the provision of security escorts “over the years”, there are “many occasions where the security service is not available 23.
[77] In summary, Mr Wong has worked an afternoon shift on one occasion since the removal of the bays 24, is unaware of whether staff shift their cars closer25, heard stories on the “grapevine”26 and no member of the library staff had said to him that they personally had experienced an unsafe incident27.
[78] Mr Anthony (Tony) Cooke, Managing Director, Metanoia Consulting Pty Ltd provided a report to the NTEU which, in turn, was submitted as evidence to the Tribunal 28. Mr Cooke has extensive practical, academic and Commission experience in occupational health and safety. The NTEU requested Mr Cooke’s assistance following the removal of the reserved parking bays “and any possible associated issues of occupational health and safety29. Mr Cooke perused background documents, met with library staff and undertook a site inspection.
[79] For all staff interviewed by Mr Cooke, the provision of designated parking bays was directly related to security considerations. Consequently, the withdrawal of the bays resulted in, to varying degrees, an apprehension of risk. The notable variable factors which affected the degree of apprehension, were age and gender.
[80] Mr Cooke gave written evidence that employees acknowledged that security escort was available, but only available after the library was “secured” which incurred the inconvenience of waiting 30. Mr Cooke considered the car park lighting adequate where the two employees had parked their cars on a night inspection. He also observed that there was minimal shrubbery and other obstructions. Mr Cooke, as part of his report, set out a “case study” which reflected an individual library staff worker’s concerns for her personal safety. These concerns reflected similar apprehension of staff generally regarding the withdrawal of the reserved bays.
[81] The case study library employee advised Mr Cooke that she does not park further away than 250 metres. The walk to this car park, Mr Cooke observed, is “generally well lit and relatively open. There are some areas of shrubbery on the way but no buildings or restricted spaces” 31. On the evening in question, Mr Cooke’s report identified a number of car park lights which were not illuminated.
[82] In summary, Mr Cooke reached the conclusion:
“The absence of data on recorded instances regarding personal security makes testing “reasonableness” of the employees’ concerns very difficult...
Apprehension of risk by its nature a subjective matter influenced by a number of variables.
However, it appears to varying degrees the employees...hold genuine apprehension regarding their personal security when doing the evening shift” 32. (my emphasis)
[83] Ms Jayne Adele van Dalen is a Branch Organiser with the NTEU. Ms van Dalen has been employed with the NTEU since 2005. Ms van Dalen’s relevant evidence was in two parts. Firstly, parking arrangements at five other universities and a series of photographs at night of the campus.
[84] With regard to the comparison with other universities, I have been given evidence of varying practices, cost and security arrangements. However, with the exception of one university, no information has been provided regarding the reasons for the introduction of these practices.
[85] Ms van Dalen conceded that, “of the 12 replies almost half of them came back in the affirmative and they’re the ones I’ve included in the statement” 33. The remaining seven (7) did not provide support for the proposition being put by the NTEU34.
[86] With respect to the photographs, Ms van Dalen did not feel qualified to provide evidence as to whether an actual occupational health and safety hazard existed, but had a sense that there were dark areas, and without her colleague being present, she would have felt afraid 35.
[87] Dr Bloom, Secretary, NTEU WA Division, gave evidence of her involvement in the dispute and that the University, at the time (26 July 2010), was “willing to make a decision that would potentially put staff at risk, as well as ignoring a longstanding custom and practice 36.
[88] Mr Lee Jones, Maintenance Officer, gave extensive evidence of “happenings” at the University both day and night. Mr Jones could only recall feeling unsafe on one occasion and conceded, in his “folksy” way, that he could say “more unsafe things happen or there are more risks after 7pm and before 10pm” than at other times 37. Mr Jones gave evidence of the frequency of faulty lights and the process of rectifying light failures.
Employer Witness Evidence
[89] Mr Dan Archibald is the University Librarian and has held this position since 2008. Mr Archibald has been employed by the University and its predecessors since 1976. Mr Archibald, in my view, gave honest and unequivocal evidence. For example, when asked about the removal of the parking bays, he gave evidence:
“...as university librarian from an operational point of view I guess my preference would be to have dedicated parking so that the staff can come in, you know, with convenience and find a parking bay so they are not late for their shifts and so they don't have to use library time to go out and move their cars before their shift begins. I guess having that condition for so many years it seemed to me on the fact of it unfair that it was taken away. But having said that, you know, the university has changed and in the end I was prepared to accept that.” 38
[90] Given Mr Archibald’s length of service, he was able to state, that to his recollection the provision of dedicated parking bays was for safety reasons at a time when the library was the only service open at night and security staff were not available when library staff were leaving work 39.
[91] Mr Archibald acknowledged that on occasions some library staff arrive late because of the unavailability of car parking spaces. Further, he gave the direction that library staff could move their vehicles closer during working hours and, consequently, there is a slight reduction in productivity.
[92] Mr Archibald’s direction to library staff was as follows:
“...The Library’s view has always been that we would like designated parking bays for our shift workers, but as the university has grown with more activities at night Facilities and Services has found it impossible to meet the demand for designated bays from the IT staff, lecturers and others who have requested dedicated shift worker bays. To be fair to everyone Facilities and Services has advised that there will be no dedicated parking bays for any staff.
To assist staff adjust to this change I offer the following for Library shift workers:
• If you arrive late and can only find parking in the pay parking area the Library will reimburse your fees to 5pm, at which time you will need to move your car into a non-pay bay. I suggest you save up your receipts and apply for reimbursement via the staff kiosk periodically. We will review this offer later in the year.
• Staff can move their vehicle to a closer spot in work time. I suggest that you do this as close to 5pm as possible since according to Glenn Sutton staff and students do not start leaving the university until around 4.45.
• Staff can move their vehicles to reserved parking bays after 4.30.
• For your safety, security staff will accompany staff to their vehicles at the end of a shift. Glenn Sutton encourages library staff to take advantage of this service.” 40
[93] With respect to the proposal for the library to “buy” the dedicated car parking bay, he declined, in the context of the library facing budget cuts 41.
[94] Mr Archibald in his evidence simply faced up to the fact that library staff who work afternoon shift are no different to other staff and students who have to find parking bays when arriving during the day and leaving at night 42. Lectures are until 9:00pm43. There is an element of inconvenience44. Security staff are available to escort library staff, if requested45. Finally, he considered the dedicated parking bays a privilege, “it was certainly never part of any written contract”46.
[95] In short, Mr Archibald recognised that the University had changed, demand for parking had increased and the library could not be immune from these changing circumstances.
[96] Mr Glenn Sutton, Manager, Security and Traffic Services gave detailed evidence of the University’s strategies to mitigate risks, promote a secure environment and ensure the safety of all staff, students and visitors. These include:
- 24/7 security presence both foot and vehicle;
- 24/7 security operations command and support;
- security escort services to relocate vehicles to reserved bays after 4:45pm;
- detailed standard operating procedures;
- dedicated security telephones;
- security advice and information, for example, “Alone on campus” and “personal safety” 47 and “safer walkways program”48.
[97] Data from the Incident Reporting Information System (IRIS) indicates that since 2008, there had been 242 escort requests of which one came from a Mount Lawley library staff member on 30 July 2009 at 6:30pm. Since the removal of the dedicated parking bays, there had been no requests from the Mount Lawley library staff for a security escort 49. Since 2008, there has been no incident recorded involving the Mount Lawley library staff in a car park50.
[98] Mr Sutton gave evidence that the Inglewood Oval overflow car park ceased operations in 2008 51. Since 2008, there had been no incidents of staff being assaulted at the Mount Lawley campus52.
[99] Similar to Mr Archibald, Mr Sutton gave honest evidence that the removal of the dedicated parking bays for library staff increases the risk to the safety but that the security escorts mitigate that risk.
[100] In summary, Mr Sutton’s considered view was that the data does not support legitimate security concerns 53. The data from IRIS is based on a security officer’s role and responsibilities to formally log each and every formal request for an escort or an incident on campus in which they are involved. Mr Sutton was not aware of any circumstances where a security escort service was unavailable54. Finally, Mr Sutton gave evidence on the regime of parking as outlined in paragraph [24].
[101] Mr Brian Yearwood is the Director, Facilities and Services and has been employed in this role since July 2007.
[102] Mr Yearwood gave evidence that parking is an issue for all universities. In 2003, there were 4.4 car spaces per staff Full Time Equivalent (FTE). By 2009, this had reduced to 3.0 car spaces per FTE 55. With the increase in students and the requisite buildings, it is expected that the trend of reducing ratio of car spaces to staff FTE will continue56.
[103] The university is managing the increasing demand by examining the current allocation of parking bays. The University came to the view that it was inequitable to provide a specific group of staff dedicated bays and the Library staff are of the last remaining group to have the provision removed 57.
[104] Mr Yearwood gave evidence that it was his suggestion regarding the purchase of the parking bay by the University Librarian. The proposal was an option under the University by-laws. And if the Librarian exercised the option under the by-laws, he would have had no choice but to accept the decision irrespective of the overall managing down strategy 58.
[105] Mr Yearwood gave evidence that although there is a comprehensive framework in place to assess risk at the University, a discrete risk assessment was not made in terms of removing the three parking bays - as he states “No. Why would you?” 59.
[106] Mr Michael Gavin is the University’s Manager of Occupational Safety and Health and has been in this role since 1994.
[107] Mr Gavin gave evidence of his discussion with Mr Sutton, prior to the removal of the three parking bays, as to whether it posed a safety hazard. After conducting an analysis of the information and controls to mitigate the risks associated with the removal of the bays, he came to the conclusion that it was not a “safety issue” 60. Further, he relayed this view to the NTEU before the bays were removed for library staff.
[108] Mr Gavin also gave evidence that other staff, besides the Library afternoon shift workers, would have to walk to their cars in the dark, including himself 61. Students, if on campus, would also have to walk to their cars62. Further, the removal of the car park spaces was not raised formally as a “hazard” under the State’s OH&S Act63 and that he had never received, in 16 years, a workers’ compensation claim from a staff member relating to an assault64.
[109] Mr Gavin’s authoritative position was given in cross examination when he stated:
“... However, from my opinion with respect to safety, there is no - I did not believe there was a need to undertake a formal risk assessment in this case because the level of risk with the controls that were in place was considered exceptionally low - in fact non-existent.” 65
[110] Finally, while Mr Gavin’s own experience is that there is no difference in risk between day and night, he acknowledged that perception of risk changes during these times 66.
DISCUSSION AND CONCLUSION
[111] From a historical context, it is uncontested that library staff on afternoon shift have had access to dedicated parking bays. Further, it appears that the provision of these bays was based on safety concerns. I say “appears”, because there was no definite evidence and all the Tribunal has is the recollection of some of the witnesses.
[112] The recollection of the witnesses was that the provision of dedicated parking bays occurred at a time when the library was the only University service opened until late at night and security officers were not available, and obviously, security escorts were not in place.
[113] However, the historical context is only part of the picture.
[114] If I came to the conclusion that the dedicated bays should remain based on custom and practice only, it would not do justice to the changing nature of universities and for that matter most other industries. The changing nature of the Mount Lawley campus is significant and the University cannot avoid the increasing demand for parking bays. It was, and still is, an issue which has to be addressed. Having considered the changing circumstances which include: increasing night time use of facilities, 24 hour security, security escorts and safety/security strategies, lighting and increased presence of students/staff on campus, I find the historical justification unable to be legitimised in current circumstances. However, and importantly, the University Librarian went further than these changes and introduced measures to mitigate safety and security concerns of the staff affected.
[115] As a single observation, having considered all the evidence, the University’s actions were fair and reasonable. However, the issue is more complex and I now turn to some other matters raised in the proceedings.
[116] First, there was no evidence to demonstrate that the provision of discrete parking bays for the afternoon library staff is a condition of a contract of employment, and I find accordingly.
[117] Secondly and significantly, some of the NTEU’s witnesses gave evidence to the effect, that the removal of the dedicated parking bays had increased the feeling of an unsafe working environment.
[118] How have these feelings of an unsafe working environment occurred? In the main, I would apprehend that this feeling of safety has occurred simply because, for so long a period, the reserved parking bays were within a few steps of the library, especially when security officers were present. In short, the feeling of safety and security was acquired over a long period through practice and that practice has now changed. While the feelings with regard to increased personal risk may be real, there is no evidence to provide a rational basis for such feelings.
[119] I accept, without reservation, Mr Cooke’s conclusion that employees hold a genuine apprehension regarding their personal safety. However, the reasonableness of that apprehension needs to be tested because, if not, the Tribunal would reach a conclusion based on subjective assessment of library staff which may be self fulfilling.
[120] Objectively, the evidence presented by the NTEU to the Tribunal was that one witness had worked an afternoon shift on one occasion, and another witness, on two occasions since the removal of the parking bays. Neither witness who gave evidence had been subject to an unsafe or insecure incident. However, both witnesses had heard “stories”.
[121] Mr Coles, for the NTEU, did work a number of afternoon shifts since the removal of the parking bays, but his evidence was that some staff feel vulnerable and unsafe walking to their cars.
[122] In short, while some NTEU witnesses gave evidence of incidents in the library, no witness gave me direct evidence which would lead me to conclude that afternoon library staff walking to their cars is unsafe.
[123] In contrast, the objective evidence the Tribunal received from the University is that: since 2008 there had been only one request for a security escort from library staff; no requests from library staff for a security escort since the removal of the dedicated bays; no recorded incidents, since 2008, involving library staff in the campus car park and that the University had not received, in 16 years, a workers’ compensation claim relating to an assault on staff.
[124] While the NTEU had some dissatisfaction with the data that was provided to the Tribunal, it was sufficient for my purposes and valuable in testing the reasonableness of the library staff’s feelings. Despite the NTEU’s reservations, this data is part of the evidence which, objectively, question the reasonableness of the “feelings” of the library staff.
[125] Data is a vital decision making tool, however there is one variable which the University is unable to control and that is human behaviour. And while I conclude that the question in paragraph [7] should be determined in the negative, it is essential or the University to continually monitor and improve those variables within its control to ensure that attributes of a safe working environment relating to this issue remain.
[126] While it is not essential or desirable for the Tribunal to address each and every contested issue raised in proceedings, I make the following observations. The procedural process to arrive at the decision by the University, while flawed, was reasonable. The NTEU could have approached the issue within the provisions of the OH & S Act and chose not to; that is a matter for the NTEU and does not detract from its primary position that the application was about a safe working environment. Further, in view of the NTEU’s approach to the issue, in these circumstances, the conclusion reached by Worksafe Inspectors was not relevant for my purposes. Productivity or unproductive hours is a matter for the University. The evidence relating to the position in other universities, while of interest, was minimal and, in its entirety, not persuasive to the NTEU’s argument. Finally, I do not consider the decision to remove the dedicated parking bays discriminatory considering the evidence and explanation of the current parking regime in place.
[127] In conclusion, the vast majority of the community attend the Mount Lawley campus for law abiding reasons. I find that the University recognised the unfavourable reaction to the decision to remove the parking bays, and the minority in the community disposed to unlawful activities, and put in place measures to mitigate some of the negative consequences of the decision. The University had tried to achieve a balance.
CONCLUSION TO APPLICATION
[128] The Tribunal determines that the question:
“Should the three (3) parking bays previously allocated to library shift working staff at Mount Lawley campus of Edith Cowan University be reinstated?”
be answered in the negative.
COMMISSIONER
Appearances:
Ms J McCulloch and Mr A Lee on behalf of the National Tertiary Education Industry Union.
Ms C Pugsley with Ms L Rosa and Ms C Allman on behalf of Edith Cowan University.
Hearing details:
2011:
Perth:
3 March.
1 PN 48
2 PN 1695
3 PN 86
4 PN 97
5 University’s Outline of Submission
6 NTEU Outline of Submission
7 PN 100
8 PN 102
9 PN 824
10 PN 837
11 PN 316 and PN 317
12 PN 397 and PN 399
13 Exhibit A2(e)
14 PN 349
15 PN 357
16 PN 362
17 PN 362
18 Exhibit A2(b)
19 PN 509
20 PN 514
21 PN 525
22 PN 537
23 Exhibit A2(f)
24 PN 649
25 PN 669
26 PN 661
27 PN 682
28 Exhibit A2(h)
29 Exhibit A2, page 2
30 Exhibit A2, page 7
31 Exhibit A2, page 9
32 Exhibit A2, page 10
33 PN 705
34 PN 799
35 PN 789
36 Exhibit A2(d)
37 PN 216 and PN 217
38 PN 871
39 Exhibit R1(b)
40 Exhibit R1(b)
41 PN 911
42 Exhibit R1(b)
43 PN 956
44 PN 963
45 PN 967
46 PN 978
47 Exhibit R1(d)
48 PN 1132
49 Exhibit R1(d)
50 Exhibit R1(d)
51 Exhibit R1(d)
52 PN 1048 and PN 1049
53 PN 1345 and PN 1192
54 PN 1262
55 Exhibit R1(a)
56 Exhibit R1(a)
57 Exhibit R1(a)
58 PN 1448
59 PN 1442
60 PN 1496
61 PN 1513
62 PN 1514
63 PN 1517
64 PN 1536
65 PN1576
66 PN 1586
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