State of Queensland (Department of Community Safety) v Together Queensland, Industrial Union of Employees

[2014] QIRC 34

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	State of Queensland (Department of Community
Safety) v Together Queensland, Industrial Union of
Employees [2014] QIRC 034
PARTIES:	State of Queensland (Department of Community
Safety)
(applicant)
v
Together Queensland, Industrial Union of Employees
(respondent)
CASE NO/S:	B/2013/25 & B/2013/26
PROCEEDING:	Application under a certified agreement for
arbitration of new/flexible shift arrangements
DELIVERED ON:	14 February 2014
HEARING DATE:	5 August 2013
MEMBER:	Deputy President O'Connor
ORDERS:	1.  In relation to the application with respect to

the Maryborough Correctional Centre
(B/2013/25), I approve the roster; and

2.       In relation to the application with respect to the Townsville Men's Correctional Centre (B/2013/26), I approve the roster.

CATCHWORDS:	INDUSTRIAL LAW - CERTIFIED AGREEMENTS - PROCEDURES FOR PREVENTING AND SETTLING DISPUTES - ARBITRATION BY INDUSTRIAL COMMISSION UNDER AN AGREEMENT - Application for arbitration of new/flexible shift arrangement under the Queensland
Corrective Services - Correctional Employees'
Certified Agreement 2010 - Where the certified agreement required approval by ballot of directly- affected employees whenever new/flexible shift arrangements are proposed - Where the Department proposed to introduce new/flexible shift arrangements in the form roster changes - Where the proposal would result in loss of shift penalty payments - Where the proposal was rejected at ballot
- Where the certified agreement required referral to
the Industrial Commission - Whether the "custom" or "practice" of shift penalty payments in correctional centres may be considered implied terms of correctional employees' contracts of employment - Whether the facts justify interference with the right of the Department to manage its own business - Where the evidence did not suggest that the Department's roster change proposals sought to impose upon correctional employees anything unjust or unreasonable
CASES:	Industrial Relations Act 1999 (Qld), s 159, applied
Queensland Corrective Services - Correctional
Employees' Certified Agreement 2010, applied
Queensland Corrective Services - Correctional
Employees' Certified Agreement 2013, cited
Australian  Federated Union of Locomotive
Enginemen v State Rail Authority of NSW (1984) 295 CAR 188, followed
Australian Iron & Steel Ltd v The Federated
Ironworkers' Association of Australia [1960] AR (NSW) 670, cited
Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cairns
Base Hospital (1995) 150 QGIG 1401, applied
Federated Ironworkers' Association of Australia, New South Wales Division v Australian Fertilizers
Ltd [1977] AR (NSW) 17, cited
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales
v Zoological Parks Board of New South Wales [2007] NSWIRComm 1080 (23 October 2007), distinguished
Queensland Treasury Department v Queensland
Public Sector Union of Employees (2002) 171 QGIG 20, considered Re Metropolitan Meat Industry Board [1972] AR (NSW) 80, cited
The Australian Workers' Union of Employees,
Queensland v Redcliffe City Council (1997) 156 QGIG 266, followed
APPEARANCES:	Mr L. Casey for the applicant. Mr B. Watson for the respondent.

Background

[1]     This decision concerns two applications for arbitration of new/flexible shift

arrangements pursuant to cl 4.1.5(e) of the Queensland Corrective Services -

1

Correctional Employees' Certified Agreement 2010 ("the agreement"). The first application (B/2013/25) relates to proposed roster changes for the Maryborough Correctional Centre. The second (B/2013/26) relates to proposed roster changes for the Townsville Men's Correctional Centre. Both applications were made by the Department of Community Safety ("the Department"). Both are opposed by the other party to the agreement: Together Queensland, Industrial Union of Employees ("the Union"). By agreement between the parties, both applications were heard together.

The relevant clause of the agreement

[2]      Clause 4.1.5 of the agreement relevantly provides:

"4.1.5	New/Flexible shift arrangements.
(a) Where new/flexible shift arrangements are proposed, the written consent of greater than 50% of employees directly affected will be required. This is achieved via a ballot of directly affected employees. However, this will only be required where the new/flexible shift arrangements will involve a major or substantial change to working arrangements.
(b) Where the Department proposes the introduction of new/flexible shift arrangements resulting in a major or substantial change to working arrangements the following fourteen (14 day) consultative process will occur prior to any ballot:

(i) The Department will put the proposal in writing to the

Union.

(ii) The Department and the Union will meet to discuss the proposal within fourteen (14) days of the proposal being received.

(iii) The Department will receive a reply from the Union within

that fourteen (14) day period.

(iv) Where the Union raises real and serious concerns the Department will seriously consider those concerns prior to referring the proposal to a ballot of directly affected employees.

(v) If the Department changes the proposal as a result of consultation with the Union the amended proposal can proceed straight to ballot without further consultation.

(c) For the purposes of 4.1.5(a) the obvious meaning of the term 'employees directly affected' will be applied i.e. those staff rostered to work when the Department seeks to change the roster and who are obviously and directly affected by the proposed change. The ballot will not include those employees absent on leave when the Department seeks to change the roster.

(d) Timeframes - The ballot for the above purposes will be limited to:

(i) A seven (7) day period where the change relates to a Correctional Centre as a whole, or a number of Correctional Centres.

(ii)     A four (4) day period where the change relates to a section, or sections, of a Correctional Centre.

(iii) For the purposes of this clause Correctional Centre shall mean any Centre or workplace where staff covered by this Agreement are employed.

(e) In situations where the proposal is rejected (i.e. does not receive the approval of greater than 50% of directly affected employees) the matter will be immediately referred to the Queensland Industrial Relations Commission for arbitration."

The relevant facts

[3]      The parties agreed that matters B/2013/25 and B/2013/26 would be heard together as both originate from the decision to restructure the operations of prison industries within five Queensland Corrective Services ("QCS") correctional centres, which was announced on 16 August 2012 by the Minister for Police and Community Safety, the Honourable Jack Dempsey MP.

[4]      The restructure was based on the premise that the industry workshops would be altered from the existing 12 hours-a-day, seven days-a-week prisoner employment regime, to a standard 38-hour working week, Monday-to-Friday, unless the workshop was generating sufficient revenue to offset the additional costs required to operate on a seven-day roster of two shifts a day.

[5]     By letter dated 16 August 2012, the Deputy Commissioner of Queensland Corrective Services, Mr Peter Bottomley, invited the General Secretary of the Union to discuss the detail and effects of the proposed restructure.

[6]      Over the following months, regular discussions were held between Queensland Corrective Services, Union representatives, and trade instructors from the various correctional centres.

[7]     Two rosters were submitted for the Maryborough Correctional Centre for assessment and approval, and to ensure compliance with the applicable rostering guidelines as detailed in the agreement and the "QCS Policy for Rostering and Workforce Management Systems".

[8]      The roster proposed by the General Managers of the Maryborough and Townsville Correctional Centres was approved by the QCS Executive on 15 November 2012.

[9]      In accordance with cl 4.1.5(b) of the agreement, a 14 day consultative process began when the Department provided the proposed rosters in writing to the Union. The Union was invited to advise of their availability to meet and discuss the roster within 14 days of receiving the proposed rosters, as required by cl 4.1.5(b)(ii), but this invitation was declined. Instead, the Union submitted written feedback on 27 and 29 November 2012.

[10]    On 3 December 2012, the Department advised the Union that, in accordance with cl 4.1.5(d) of the agreement, Maryborough Correctional Centre would commence the four-day ballot process on 4 December 2012.

[11]    In response to a request from the Union dated 14 December 2012, representatives of the Department, the Union, and staff affected by the proposed roster met on 20 December 2012.

[12]   On 2 January 2013, the Department advised the Union that, in accordance with cl 4.1.5(d)(ii) of the agreement, Townsville Men's Correctional Centre would commence the four-day ballot process.

[13]   The result of each ballot was the same: staff at both the Maryborough Correctional Centre and the Townsville Men's Correctional Centre rejected the roster proposals.

[14]    In light of these results, the Department was required, pursuant to cl 4.1.5(e) of the

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agreement, to refer both matters to the Commission for arbitration.

The parties' arguments and the evidence

[15]   The Department's case is that it has complied with the consultative process for proposed roster changes required by the agreement and that there are sound reasons why it should be permitted to exercise its managerial prerogative to implement the proposed roster changes to meet the operational requirements of the correctional centres.

[16]   It is not contested that the restructuring of prison industries at Lotus Glen, Townsville, Capricornia, Maryborough, and Brisbane Women's Correctional Centres would result in a saving of $1.7 million in the 2012 financial year and $3.3 million annually in subsequent years.

[17]   The Union draws attention in its submission to the evidence of Mr Paul Davis, Mr Craig Smith, Ms Sarah Cutts and Mr Gordon Monro to support its contention to the proposed rosters will bring about some significant changes including, in particular, changes to shift length and condensing of the working week, an increase in the number of times employees will be required to attend for duty, and a reduction in income of 28.5%, which equates to an average of $18,000 per annum. There is no dispute between the parties that the affected employees will also lose the extra weeks annual leave afforded to shift workers.

[18]    The Department properly concedes that a consequence of the proposed roster is that fewer officers would be required as Trade Instructors, with the result that those officers selected to remain in their role would, as Monday-to-Friday employees, no longer be entitled to receive the 28.5% aggregated shift allowance.

[19]   Mr Drage and Mr Pike both gave evidence that the activity officers at both the Maryborough Correctional Centre and the Townsville Men's Correctional Centre will, if the proposed rosters are implemented, have penalty payments reduced from 28.5% to approximately 15% and the general staff will attend duty more often because they would be working an 11-hour shift rather than a 12-hour shift.

[20]   Clause 3.1.3 of the agreement requires the Department to advise the Agency Consultative Committee ("the ACC") and/or the Local Workplace Consultative Committee of an intention to implement changes that affect the conditions of employees.

[21]   The evidence before the Commission, as contained in the affidavits of Mr Peter Drage and Mr Andrew Pike, is that working groups were established to discuss the proposed roster at both the Maryborough Correctional Centre and the Townsville Men's Correctional Centre, comprising the General Manager, the Deputy General Manager, delegates of the Union, and affected industries staff members.

[22]    The affidavit of Mr Drage confirms that the roster for the Maryborough Correctional Centre was developed on a consultative basis.

[23]   The statement of the Minister set the parameters within which the rosters for both Correctional Centres were framed. Nevertheless, I accept that the evidence before the Commission is that both nine-day and eight-day fortnight rosters were considered by Correctional Centre management. However, for the reasons given by Mr Drage and Mr Pike, an eight-day roster was approved by the Department and submitted to the Union for ballot.

[24]   In cross-examination, Mr Drage articulated the rationale for the adoption of an eight-day roster over a nine-day roster in the following terms:

"Did you give consideration to an eight day per fortnight roster?---The TIs put

forward an eight day roster which would see, as opposed to the nine day roster –

nine day fortnight roster, the consequence of the eight day a fortnight roster was would see the TIs working slightly longer days with no increase in the amount of

prisoner contact hours. Over a nine day fortnight the changes – the difference

between the eight and the nine day fortnight, the eight day fortnight has a reduction of 5.2 hours of actual prisoner contact, even though the TI's are working longer days and having every Friday off."

[25]   Part 4 of the agreement requires the Commission to determine whether the rosters for both Correctional Centres are suitable for implementation having regard to the relevant industrial instruments, including the rostering guidelines that form part of the agreement. The Union submitted that this is not the sole test to be considered, and the Commission should consider other factors such as the impact on employees and the industrial landscape.

[26]    The Union submitted that, should the Commission be minded to approve the rosters, then any implementation of the new rosters should be delayed so as to reduce the impact they will have on the current workers and provide some time for them to adjust to the reduction in income and having to attend for duty more regularly.

[27] In that regard, the Union referred to the decision of Commissioner Brown in

3

Queensland Treasury Department v Queensland Public Sector Union of Employees.

This case involved a change in roster arrangements for casino inspectors who were

no longer required to work weekend shifts. Commissioner Brown decided that the

change to the roster should be delayed for approximately eight months. That

decision allowed the inspectors affected by the change to maintain their block pay at

their current level until the nominal expiry date of the certified agreement. Having

found that "[t]he evidence adduced from the QPSU witnesses has not convinced the

Commission that there would be significant impact or indeed any adverse impact on

the work, social and family life of inspectors as a result of working in the fashion

4

proposed." Commissioner Brown went on to conclude:

"This, however, is not the case with respect to the accompanying reduction in take home pay which would eventuate should the 'block pay' currently paid be adjusted to account for the reduction in the number of night shifts worked.

Disposable income does have a direct impact on inspectors and their dependants and would certainly impact, at least to some degree, on the inspector's social life if the reduction in pay was in the order of 5% before tax or 3% after tax.

In the view of the Commission certainty is one of the most positive aspects of the

Enterprise Bargaining system. For employees, certainty of work patterns and

certainty of the levels of income are extremely important not only for the

personal impact that these issues have on employees at the time of any change but

on the confidence that employees have in the system of Enterprise Bargaining. To

allow an immediate and negative impact on inspector's wages of 5% as a result of

this exercise would inevitably create, at best, cynicism and, at worst, open

hostility towards the next round of Enterprise Bargaining and the Enterprise

5

Bargaining system as a whole."

[28]    With respect, I do not accept the reasoning and approach of Commissioner Brown in the Treasury Case. It follows, therefore, that I do not accept the Union's submission in the matters presently before the Commission that the Department's proposed roster changes should be implemented in a staged way over a three-year period.

[29]   The Department concedes that the new rosters would result in fewer officers being required as trade instructors, and that those selected to remain would, as Monday-to- Friday employees, no longer be entitled to receive the 28.5% aggregated shift allowance. In addressing this point, I respectfully adopt the following reasoning of Commissioner Bloomfield (as his Honour then was) in The Australian Workers' Union of Employees, Queensland v Redcliffe City Council:

"Whilst their new duties might not involve access to the same allowances or

overtime as that to which they were previously entitled that is but an unfortunate

outcome of the Council's decision to redeploy them. No employee is entitled to

regard allowances as part of their ordinary and regular income and nor is

overtime. Such payments are to provide recompense for the disabilities and

inconveniences associated with the performance of such work and once the work

ceases to be performed, or the disabilities cease to be experienced, the allowances

6

are no longer receivable."

[30]    The Union further submits that the Department's proposed roster changes should not be implemented because the evidence before the Commission supports a conclusion that the rostering of correctional employees on shifts that attract the payment of penalties in the form of aggregated shift allowances of 28.5% has been in place for some time at both the Maryborough Correctional Centre and the Townsville Men's Correctional Centre and, as a result, has become the "custom and practice" at those centres.

[31]   In support of that submission, the Union referred to the decision in Public Service

Association and Professional Officers' Association Amalgamated Union of New

7

South Wales v Zoological Parks Board of New South Wales, where Commissioner

Ritchie found that the "flexi day" - which the employer had "deleted" when varying

the employees' rosters - could be implied into the employees' contracts of

employment "by reason of the custom and practice applying within [the workplace]

8

during their period of full time employment." In his reasons for decision, Commissioner Ritchie referred to Federated Ironworkers' Association of Australia, New South Wales Division v Australian Fertilizers Ltd [1977] AR (NSW) 17, where Watson J wrote:

"In discussing 'custom' and 'practice' the issue arises whether it is shown to exist in such a way that it is part of the contract of employment and if so not inconsistent with the award. The test applied in this regard in the Furnace Demolishers Case as approved by the Commission in Court Session in the Collective Responsibility is based on a statement of the relevant principles from Halsbury's Laws of England quoted in the Furnace Demolishers Case as follows:

'In Halsbury's Laws of England,3rd ed.,vol X1,p. 182, the following appears:

"Usage my be broadly defined as a particular course of dealing or line of

conduct generally adopted by persons engaged in a particular department of

business life, or more fully as a particular course of dealing or line of

conduct which has acquired such notoriety, that where persons enter into

contractual relationships, in matters respecting the particular branch of

business life where the usage is alleged to exist, those persons must be

taken to have intended to follow that course of dealing or line of conduct,

unless they have expressly or impliedly stipulated to the contrary; that is to

say that a rule of conduct amounts to a usage; if so generally known in the

particular department of business life in which the case occurs, that unless expressly or impliedly excluded, it must be considered as forming part of

9

the contract."'

[32]   In the matters presently before the Commission, there is no evidence to support a

conclusion that, by way of either "custom" or "practice", that the payment of the

aggregated shift allowance forms part of the affected employees' contracts of

employment. The payment is an allowance for the performance of shift work that is

performed and once that shift work ceases to be performed, the allowance is no

10

longer receivable.

[33]   The Zoo Case is distinguishable from the matters presently before the Commission in a number of significant ways. There was no evidence before the NSW Commission that the Zoo had suffered any long term difficulty in providing the "flexi day" to the relevant group of employees, nor was there any evidence adduced by the Zoo justifying a change in the roster. In particular, the evidence before the NSW Commission demonstrated a history which clearly showed that the "flexi day" could be implied into all of the employees' contracts of employment within the Purchasing Department of the Zoo by reason of "custom" and "practice" during their period of full time employment. Commissioner Ritcher further found that the Award had been varied to permit the "flexi day" to be taken.

[34]   In my view, the Department has the right to manage its business affairs in such a way as it considers appropriate. The test to be applied is that enunciated by McKenzie P in Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cairns Base Hospital:

"The proper test requires a concession of the right of an employer to manage his

business, subject to the safeguard that intervention may occur if the demands

11

made of employees are unjust or unreasonable."

[35]    In addition to the caveat contained in the Federated Clerks' Union Case, cl 4.1.5 of the agreement provides a further fetter on management prerogative by requiring any change in a roster which is rejected by ballot to be subject to review by the Commission.

[36]   In Australian Federated Union of Locomotive Enginemen v State Rail Authority of NSW the Full Bench wrote:

"It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement of an employer for an employee to perform work which was unsafe might damage the health of the employee would be both unjust

12

and unreasonable."

[37]   In the evidence of both Mr Davis and Mr Smith concerns were raised that the proposed roster may have an impact on safety within the Maryborough and Townsville Correctional Centres. There concerns related, in broad terms, to potential risks for offenders, staff and visitors. Both witnesses indicated that they had raised concerns with their Industries Manager but conceded in cross-examination that they had not been raised in a formal way in the Workplace Health and Safety forum or the Local Workplace Consultative Committee. The submissions of the Union did not pursue the question of safety.

[38]   The evidence does not support a conclusion that the proposed roster regime will impose an increased risk to the safety of the employees within the Correctional Centres. Indeed, the evidence of Mr Davis and Mr Smith demonstrates a significant level of confidence in management to deal with and respond appropriately to any safety issues that might eventuate as a direct consequence of a change to the roster regime.

[39]    I am satisfied on the evidence before the Commission that the Department has, in all material respects, complied with the process and procedures set out in the agreement.

Conclusion and orders

[40]   In applying the test in the Federated Clerks' Union Case, and having regard to the totality of the evidence before the Commission, I have formed the view that the proposed rosters for the Maryborough Correctional Centre and Townsville Men's Correctional Centre should be approved. Accordingly, I make the following orders:

1.  In relation to the application with respect to the Maryborough Correctional

Centre (B/2013/25), I conclude that, in all the circumstances, I am prepared to

approve the roster, which is included as the exhibit marked "PZD3" in the

13

affidavit of Mr Peter Zane Drage;

2.  In relation to the application with respect to the Townsville Men's Correctional

Centre (B/2013/26), I conclude that, in all the circumstances, I am prepared to

approve the roster, which is included as the exhibit marked "AP-6" in the

14

affidavit of Mr Andrew Pike.

1

Although the agreement under which the present applications for arbitration were made has since been superseded by the Queensland Corrective Services - Correctional Employees' Certified Agreement 2013, the 2013 agreement did not come into operation until 25 July 2013. Accordingly, despite the fact that the 2010 agreement contained a nominal expiry date of 31 March 2013, and the present applications were filed on 20 May 2013, they must be arbitrated according to the provisions of the 2010 agreement as they remained in force at that time.

2

See also Industrial Relations Act 1999 (Qld) s 159, which provides that the procedures for preventing and

settling disputes contained in a certified agreement may authorise the Commission to settle a dispute.
3

(2002) 171 QGIG 20 ("Treasury Case").

4

Ibid, 22.

5

Ibid, 23.

6

(1997) 156 QGIG 266, 268 (emphasis in original) ("AWU v Redcliffe").

7

[2007] NSWIRComm 1080 (23 October 2007) ("Zoo Case").

8

Ibid [64].

9
Ibid [65], quoting Federated Ironworkers' Association of Australia, New South Wales Division v Australian Fertilizers Ltd [1977] AR (NSW) 17, 22 (citations omitted), citing Australian Iron & Steel Ltd v The Federated Ironworkers' Association of Australia [1960] AR (NSW) 670, 681-2 ("Furnace Demolishers Case"); Re Metropolitan Meat Industry Board [1972] AR (NSW) 80, 98 ("Collective Responsibility Case").
10

AWU v Redcliffe (1997) 156 QGIG 266, 268.

11

(1995) 150 QGIG 1401 ("Federated Clerks' Union Case").

12

(1984) 295 CAR 188, 191.

13

Exhibit 1 in matter B/2013/25.

14

Exhibit 1 in matter B/2013/26.