State of Queensland (Department of Corrective Services) v Together Queensland, Industrial Union of Employees
[2014] QIRC 176
•3 November 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | State of Queensland (Department of Corrective Services) v Together Queensland, Industrial Union of Employees [2014] QIRC 176 |
PARTIES: | State of Queensland (Department of Corrective Services) v Together Queensland, Industrial Union of Employees |
CASE NO: | B/2014/11 |
PROCEEDING: | Application for Arbitration |
DELIVERED ON: | 3 November 2014 |
HEARING DATE: | 11 June 2014 |
MEMBER: | Industrial Commissioner Thompson |
ORDERS : | Proposed roster is not approved. |
| CATCHWORDS: | INDUSTRIAL LAW - CERTIFIED AGREEMENTS - PROCEDURES FOR PREVENTING ANS SETTLING DISPUTES - ARBITRATION BY INDUSTRIAL COMMISSION UNDER A CERTIFIED AGREEMENT - Application for arbitration regarding proposed roster for Custodial Correctional Officers at the Escort Security Branch - Queensland Corrective Services - Correctional Employees' Certified Agreement 2013 - Witness evidence - Matters for determination - Whether Corrective Services followed procedure and policy required by the Certified Agreement - ACTU Code of Conduct - Rejection of roster proposal - Financial impact on employees - Managerial prerogative - Proposed roster unjust and unreasonable - Proposed roster not approved. |
| CASES: | Industrial Relations Act 1999, s 159 The Australian Workers' Union of Employees, Queensland v Redcliffe City Council (1997) 156 QGIG 266 Metropolitan Gas Company v The Federated Gas Employees' Industrial Union and Another [1925] HCA 5 Re: Cramm, Ex parte N.S.W. Colliery Proprietors' Association Ltd and Other (1987) 163 CLR 117 BHP Employees (Payment of Wages) Case (1972) 158 39 S.A.I.R. 158 Seamen’s Union of Australia v Adelaide Steamship Co. Limited (1976) 46 FLR 444 L Schuler A.G. v Wickman Machine Tool Sales Ltd [1973] UKHL 2 Short v F W Hercus Pty Ltd [1993] FCA 51 Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 Kucks v CSR Limited (1996) 66 IR 182 State of Queensland (Department of Community Safety) v Together Queensland, Industrial Union of Employees [2014] QIRC 034 Australian Federated Union of Locomotive Enginemen v State Rail Authority of NSW (1984) 295 CAR 188 |
| APPEARANCES: | Mr L. Casey for the Applicant. |
Decision
Background
On 21 March 2014 Kerrith McDermott (McDermott), Acting Deputy Commissioner, Statewide Operations, Queensland Corrective Services (Corrective Services) lodged an application with the Industrial Registrar seeking:
"The proposed roster for Custodial Correctional Officers (CCOs) at the Escort Security Branch (attached at 'Attachment 1') be implemented effective as at the date determined by the Commission."
The affidavit of McDermott, in setting out a chronology of the events leading up to the lodgement of the application, specifically identified why the current roster arrangements were not operationally suitable, advancing the following reasons:
· "the existing afternoon shifts are not sufficient to efficiently operate the control room, secure equipment room and return offenders to their correctional centre within a reasonable timeframe;
· the current roster provides for unnecessary staffing coverage during very low demand periods (i.e. 7.30 pm to 9.00 pm Monday to Friday); and
· the new roster will more effectively and efficiently accommodate required staffing levels and operational demand."
The affidavit further referred to a roster panel consisting of the Acting Manager, Escort and Security Branch, a Custodial Correctional Supervisor and a representative of Together Queensland, Industrial Union of Employees (Together) that assessed amended rosters submitted by staff and selected the roster that best suited the Escort and Security Branch's operational requirements.
In accordance with clause 3.1.5(d)(ii) of the Queensland Corrective Services - Correctional Employees' Certified Agreement 2013 (the Certified Agreement) a ballot of staff was held and concluded on 9 February 2014 which saw the rejection of the proposal.
Pursuant to clause 3.1.5(e) of the Certified Agreement, the matter was referred to the Queensland Industrial Relations Commission (the Commission) for arbitration.
The Relevant Terms of the Certified Agreement
The relevant provisions for roster changes are set out at clause 3.1 of the Certified Agreement and are reproduced below:
"3.1 Rosters
3.1.1 The ordinary hours of shift workers will be inclusive of meal times worked in shifts that average 38 hours per week over the life of the roster.
3.1.2 Shifts will be worked in accordance with a roster established by the Department.
3.1.3 The Department will establish rosters, and deploy employees to rosters, to meet the operational needs of the work area.
3.1.4 Prior to creating or amending any roster, the Department will consult with the Union and with employees directly affected by the roster.
3.1.5 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 3.1.5(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 urgent arbitration."
Corrective Services
Peter Coyne (Coyne) gave evidence on behalf of Corrective Services.
Coyne
Coyne, the General Manager of the Escort and Security Branch since August 2013, gave evidence that the current operational arrangements were not operationally suitable due to:
· "the existing afternoon shifts are not sufficient to operate the control room, secure equipment room and return offenders to their correctional centre within a reasonable timeframe;
· the current roster does not accommodate current staffing levels (e.g. it is a 22 person roster);
· the current roster has a poor match to operational demand;
· the current roster has unnecessary staffing coverage during very low demand periods (e.g. 7.30 pm to 9.00 pm Monday to Friday);
· the new roster will accommodate required staffing levels; and
· the new roster better matches operational demand."
Coyne's evidence in terms of the chronology confirmed the content contained within the application going, in particular, to exchanges between Corrective Services and Together in respect of achieving a negotiated position around the new roster arrangements. The timelines of the negotiation were as follows:
· September 2013 - roster committee established;
· September - October 2013 - roster committee consults with staff directly affected by proposed roster arrangements;
· 17 October 2013 - final version of proposed roster arrangements agreed by roster committee;
· 7 November 2013 - proposed roster approved by Acting Deputy Commissioner - Statewide Operations;
· 20 November 2013 - Corrective Services provided proposed roster to Together for commencement of 14 day consultative period;
· 27 November 2013 - Corrective Services meet with Together - to discuss staff concerns;
· 3 December 2013 - Deputy Commissioner and others meet with Together to discuss staff concerns;
· 4 December 2013 - affected staff members given further opportunity to submit amendments for proposed roster;
· 3 February 2014 - Ballot opens; and
· 9 February 2014 - Ballot closes roster proposal rejected by staff.
Coyne indicated the Branch had consulted extensively with staff during the entire roster negotiation process and the implementation of the proposed roster would lead to improved efficient work practices.
There were two affidavits in reply to (the then) unsworn affidavits of Gregory Tanner (Tanner) and Scott Mawhinney (Mawhinney) [Exhibits 2 and 3] tendered in the proceeding by Coyne which provided commentary on the content of their proposed evidence in numerous of areas. This included issues such as:
· Tanner
·overtime;
·fatigue and fatigue reduction;
·call in of staff;
·staffing levels;
·control room staffing;
·risk assessment processes;
·mitigation strategies;
· Mawhinney
·proposed roster panel included a "local union representative" who took the lead following the establishment of the parameters and corporate needs;
·questions regarding shift and other penalties;
·limited operational activity after 7.30 pm;
·12 hour shifts;
·roster panel union representative ceased to be the union representative and was replaced by Tanner and Mawhinney;
·proposed roster compared to current roster has slightly less afternoon penalties - decrease represents approximately 192 hours per annum that attracts a 15% penalty;
·no staff member ever required to work in highly adverse or unsafe conditions;
·two rosters were submitted to staff where benefit and dis-benefit were considered;
·Coyne made no attempt to influence the roster ballot in any form,
·Escort Unit has very little operational requirements after 7.30 pm;
·proposed roster had taken into consideration two escorts trips to Maryborough Correctional Centre per week;
·proposed roster would prevent 30 hours per week of financial waste related to control and secure equipment rooms;
·proposed roster is fair and reasonable given the operational requirements of the Escort Unit; and
·fatigue management is an important consideration of any roster.
Under cross-examination, Coyne identified the activities undertaken by the Escort Unit [Transcript p. 1-6]. Provincial prisoner transfers were limited to Maryborough (in terms of distance). In designing a roster there was a need to accommodate regular prisoner movement and to be flexible to accommodate emergency situations [Transcript p. 1-7]. The current roster (it was conceded) was made up of eight and nine hour shifts whilst the proposed roster had shifts ranging from eight to 12 hours [Transcript p. 1-8]. The 12 hour shifts were proposed by John Eagleton (Eagleton), the union representative on the roster committee, and had not been supported by Corrective Services at the time however the 12 hour shift did accommodate prisoner transfers to Maryborough that currently are undertaken on nine or ten hour shifts with overtime paid [Transcript p. 1-10]. Coyne accepted the proposed roster whilst proposed by Eagleton had not been approved by Together [Transcript p. 1-11].
Coyne's evidence was that the proposed roster had complied with rostering guidelines but in the course of the process he had not consulted the Australian Council of Trade Unions (ACTU) Code of Conduct on 12 hour shifts [Transcript p. 1-14]. The proposed roster was rejected by the staff but according to Coyne they were not specifically required to vote on the question "Do you want a 12 hour shift in the roster?" [Transcript p. 1-17]. On 12 hour shifts, Eagleton had informed him that he had polled staff and that a majority (not all) of staff wanted 12 hour shifts [Transcript p. 1-20].
In re-examination Coyne stated the proposed roster did not have more than three consecutive 12 hour shifts.
Together
The following witnesses gave evidence on behalf of Together:
· Tanner; and
· Mawhinney.
Tanner
Tanner, an Escort Security Officer having been in the role since 1992. He described the duties of the position as having to escort prisoners to and from Correctional Centres, Courts and transfers to hospitals. These activities occurred both at regular scheduled and irregular scheduled times depending on unexpected circumstances requiring staff on occasions to work overtime at the completion of their shift. Tanner's current roster consists of a 22 week cycle of various shifts spanning Monday to Friday and includes rostered days off.
Transferring prisoners between locations was not the same as transporting goods as it provides opportunities for prisoners to unlawfully escape with outside assistance and requires staff on escort duties to maintain considerable concentration and situation awareness. Increasing fatigue issues would have dire consequences not only to staff but the public at large.
The current roster as it stands was preferred by Tanner because the eight and nine hour shifts are consistent and provides a good work-life balance. The roster is within his fatigue management awareness having standard and uniform non-working periods within each week. The proposed roster (rejected by a majority of staff) was said to be poorly designed for the following reasons:
· too much variance in weekly roster, some days are eight hours, some nine hours, some ten hours as well as the 12 hour shift;
· varying starting and finishing times on certain days within a particular week of the roster;
· particularly lines 3, 4, 12, 14, 15, 19, 22 and 24 have days when the start time for the shift is early than the start time of the previous day, this is particularly disruptive for shift workers;
· lines 2, 5, 8, 11, 17, 21, 23 and 26 finish the week with a ten hour day after four preceding days being longer days (nine hours); and
· the number of hours worked in each week is highly variable and essentially has no repeating pattern.
The proposed roster would not minimise fatigue issues.
Under cross-examination, Tanner accepted there was "little" or "few" operational duties after 8.00 pm [Transcript p. 1-25]. Tanner accepted he had no qualifications in respect of fatigue management skills but having 22 years at the Escort Unit driving and doing long hours he knew what fatigue was and when it caught up with you [Transcript p. 1-28]. He acknowledged the differing start times for the 12 hour shifts allowed for more than a ten hour break between shifts [Transcript p. 1-28]. The current roster with eight hour shifts was better for fatigue management [Transcript p. 1-29].
In re-examination Tanner gave evidence about management's view of little work occurring beyond 8.00 pm was likely have been due to a local arrangement where people worked through the meal break.
Mawhinney
Mawhinney, a Corrective Services Officer of some 26 years, had spent the last three to four years at the Escort Unit. His evidence was that the proposed roster had been presented to staff on the basis it had been approved by head office and the union and that staff would only lose $50 due to a cut back in afternoon shift penalties as there was no work after 8.00 pm.
Mawhinney's own calculations were that staff actually would lose between $2,500 to $3,000 per year. There were issues around the first ballot with suggestions that the union was aware of the ballot taking place not being accurate. There had been pressure applied by management to staff to support voting early so as to wrap up the count with the ballot being counted two days early. This ballot was eventually vetoed as it turned out management had not spoken to the union.
Following the failure of the first ballot there was a new round of rosters and a number of meetings between management and staff. A number of issues were raised about 12 hour shift cycles and staff feeling they had been ambushed. Prior to the second ballot Coyne had a few meetings with staff, mostly when the union delegates were not around where on one occasion Coyne was alleged to have said that if the proposed roster did not go through he would change the afternoon shift to a 10.00 am start which would exclude them from being paid shift penalties and not have an entitlement to a meal break and meals.
The vote was eventually held and the proposed roster was voted down by a large margin.
Mawhinney addressed a number of issues said to be relied upon by management as reasons for a change in rosters. They included:
· no work after 8.00 pm;
· Maryborough trips;
· control and special equipment rooms; and
· overtime.
Issues around overtime according to Mawhinney was because the roster was not fully staffed.
The proposed roster was deficient for the following reasons:
· inconsistent shift patterns eg. 6-6, 7-7, 6-6 or 7-7, 6-6, 7-7;
· staff lose some $3,000 in penalties;
· no compensation for working longer hours;
· should not be losing money to implement a roster;
· no repeating cycle within the roster; and
· in some weeks work commences earlier than the previous day, especially on twelve hour days this reduces the time between shifts, if there is a requirement to work overtime on those shifts the requirement for a ten hour fatigue break could disrupt the entire shift cycle.
The current roster with eight and nine hour days provides a good work-life balance and manages fatigue issues.
In respect of Eagleton (union representative on the roster panel) he was no longer the union "rep" and was now an acting supervisor.
Under cross-examination, Mawhinney confirmed that management were pressuring staff when a proposed roster was being voted on for the first time [Transcript p. 1-37]. The pressure was more about voting than voting in a particular way and he made no report about the behaviour "because it was common that we would get pressured about that sort of stuff" [Transcript p. 1-37]. Mawhinney had worked at other correctional facilities and it was his evidence that perimeter patrols were fairly common and he had been forced to undertake a perimeter patrol at the Ethical Unit because he had refused to vote in line with management's timeframe [Transcript p. 1-38].
Longer hours caused problems with driving both to Maryborough and locally particularly with fatigue [Transcript p. 1-40]. In the meeting between management and the union prior to the second ballot he conceded there were some changes made [Transcript p. 1-41]. On the claim that Coyne had told staff if the roster did not go through he would change the start time for the afternoon shift to 10.00 am, Mawhinney accepted he was not present at the meeting and had been told this by other staff [Transcript p. 1-42]. He was aware that roster variations could be done with employees, provided that notice was given [Transcript p. 1-42]. In terms of the process relating to the second ballot, Mawhinney had no concerns stating "No, No. The second was run pretty much to as it's required to be run". [Transcript p. 1-43]
Mawhinney was surprised the second vote had gone down by a bigger swing because the first vote had got up by one. The proposed rosters in each ballot were pretty much the same, however second time around people were starting to understand the roster and in his case he was going to lose around $2,500 over a 12 month period [Transcript p. 1-44].
Note: Mawhinney did not produce the calculations he relied upon in estimating his financial loss.
On the matter of a ten hour break between shifts, he acknowledged if for some reason he was directed to commence work without the ten hour break he would be on overtime payments until he got a ten hour break [Transcript p. 1-46]. On the loss of afternoon shift penalties, it was accepted it would not impact on fatigue [Transcript p. 1-47].
In re-examination, Mawhinney repeated concerns regarding the 12 hour shift component of the proposed roster.
Submissions
Corrective Services
The matters to be addressed by the Commission were identified as:
"Whether the Department has followed the procedure and process required under the Queensland Corrective Services - Correctional Employees' Certified Agreement 2013 (the relevant Agreement) for the Escort and Security Branch roster changes; and where the answer is held to be in the affirmative; and
Whether there are any sound reasons why Queensland Corrective Services (QCS) should not be permitted to exercise its managerial prerogative to implement the roster to meet the operational requirements of the Escort and Security Branch."
The relevant provisions of the Certified Agreement for roster changes were:
· clause 3.1 Rosters; and
· clause 3.1.5 New/Flexible shift arrangements.
Consultative Process Undertaken
The evidence before the proceeding was that the first time the roster was voted upon it was accepted with a 15-14 vote however it is of fact that the ballot was voided on the basis of Corrective Services having erred in negotiating with the local union delegate with Coyne misunderstanding the union status of Eagleton. Coyne was not a person who usually dealt with the union per se and his failure to recognise the difference between the union delegate and the union was a result of an honest mistaken belief.
The reinstated process commenced with a meeting between staff and the union on 27 November 2013 and in the course of the submission a number of other meetings that occurred were detailed to the extent of explanations around differing views of particular meetings that "may have been honestly held" by Mawhinney. The claim that in the course of negotiations staff were ambushed or denied advance notice of the purpose of some meetings, was denied. The evidence demonstrates that there was consultation over the content of the proposed roster and amendments made although it was acknowledged that the amendments did not resolve all of the issues.
Corrective Services submitted the evidence demonstrated that whilst the roster was not approved at ballot it was nevertheless developed within the consultative manner envisaged by clause 3.1.4 of the Certified Agreement - roster guidelines. This was indeed conceded by Mawhinney in his evidence. An opportunity was provided to staff to have meaningful input before the roster was sent to ballot.
In CEPU v Optus Administration Pty Ltd[1], Smith C had stated:
"Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may affect the employment prospects of individuals."
[1] CEPU v Optus Administration Pty Ltd [2001] PR912122 AIRC 1291 (4 December 2001)
Reduced Afternoon Shift Hours
The evidence before the proceedings failed to demonstrate that Together raised the reduced afternoon shift hours or the 12 hour shift elements of the proposed roster during the meeting of 3 December 2013 and in respect of Mawhinney's evidence that management had informed staff they would only lose $50 due to the cut back in afternoon shift penalties if there was no work after 8.00 pm, this was denied by Coyne whose evidence was staff were not advised of any monetary decrease in penalties because such amounts would vary according to the roster.
Mawhinney's evidence that staff would lose between $2,500 to $3,000 a year as a result of the reduced afternoon shift was not supported by the production of the calculations used as a basis for his claim.
The submission referred to the afternoon shift provisions of the Department of Community Safety - Queensland Corrective Services Correctional Employees' Award - State 2012 (the Award) and undertook an assessment (based on rates of pay applicable at 13 December 2013) of Mawhinney's position on the monetary loss which indicated for him to suffer a "ball park" per annum loss of between $2,500 to $3,000 he would need to work between 614 and 737 afternoon shifts to suffer such a loss. Given that there are 30 afternoon shifts in the proposed 28 week roster the reduction in penalties over two shift cycles would be an amount of $244 per annum.
12 Hour Shifts
Whilst maintaining the union had provided no evidence of having raised concerns around the 12 hour shift element of the proposed roster prior to 4 December 2013 it was conceded by Corrective Services that the 12 hour shift would:
· reduce the requirement for overtime currently payable under the current roster; and
· for Maryborough escorts may all but eliminate the requirement for overtime.
The elimination of overtime was not a barrier to the introduction of a roster incorporating 12 hour shifts.
There was no evidence that the breaks between the 12 hour shifts were of a kind to contribute to fatigue with all breaks being compliant with the minimum 10 hour fatigue break provided for at clause 6.10.1 of the Award. The claim by Mawhinney linking fatigue with the repeating or non-repeating cycles was at all times baseless.
ACTU Code of Conduct on 12 Hour Shifts
Coyne in evidence conceded that in developing the proposed roster he had not read the ACTU Code of Conduct on 12 hour shifts pursuant to clause 1.3 of Appendix 2 of the Certified Agreement:
"The Department shall be guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12 Hour Shifts and relevant publications of the Department of Employment and Industrial Relations."
This concession was not a determining issue and did not indicate Coyne was wrong to certify:
"…the proposed roster has been developed to meet operational requirements and complies with the QCS rostering guidelines and that all payments and entitlements will be made in accordance with the relevant Industrial Instruments."
The ACTU guidelines were in effect a "guide" and where they provide for no more than two consecutive 12 hour shifts both Corrective Services and Together had agreed despite that view, rosters may provide three consecutive 12 hour night shifts and four consecutive 12 hour day shifts. It was somewhat, in the circumstances, disingenuous for the union to imply that the ACTU guidelines should have been an element of Coyne's consideration and further to wait until the matter was before the Commission to suggest that the roster cycle was somehow in breach of the roster guidelines.
Rejection of Roster Proposal
The inference that the ballot failed because of the inclusion of 12 hour shifts has not been supported by evidence and indeed if the 12 hour shift was as contentious as suggested by the union then it must be noted the initial ballot that supported the roster (15 to 14) had considered a roster with 12 hour shifts. Further there was no evidence to suggest what influenced the officer's vote.
Financial Impact on Employees
Corrective Services does not accept the range of financial loss suggested by Mawhinney but does concede the proposed roster will curtail overtime, particularly with respect to Maryborough escorts. Neither overtime nor shift penalties can be regarded as part and parcel of an officers ordinary income or an ongoing entitlement unless the inconveniences are incurred.
In The Australian Workers' Union of Employees, Queensland v Redcliffe City Council[2] (the then) Commissioner Bloomfield in dealing with a similar situation stated:
"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 are no longer receivable."
[2] The Australian Workers' Union of Employees, Queensland v Redcliffe City Council (1997) 156 QGIG 266
Relevant Agreement and Case Law
Authorities cited in relating to the operation of the Certified Agreement said to assist Corrective Services' case were:
· QNU v Friendly Society Private Hospital, Bundaberg[3]; and
· Metropolitan Gas Company v The Federated Gas Employees' Industrial Union and Another[4].
[3] QNU v Friendly Society Private Hospital, Bundaberg (2005) 179 QGIG 150
[4] Metropolitan Gas Company v The Federated Gas Employees' Industrial Union and Another [1925] HCA 5
The submission identified the benefits of the Certified Agreement provisions as they applied to Corrective Services and the employees, however clause 3.1.5 should not be interpreted as an ability for employees or the union to simply veto the introduction of the proposed roster.
There was no evidence that the proposed roster posed any risks to workplace health and safety nor was there evidence to warrant the Commission interfering with Corrective Services' right to manage its business as it sees fit and according to operational need.
Managerial Prerogative
A number of authorities supporting the right to manage a business were cited including:
· Re: Cramm, Ex parte N.S.W. Colliery Proprietors' Association Ltd and Others[5];
· BHP Employees (Payment of Wages) Case[6];
· Bowen Coke Pty Ltd and Australian Workers Union of Employees, Queensland and Others[7]; and
· Re Appeal from Determination of Public Service Arbitrator (Re Shift Work)[8].
[5] Re: Cramm, Ex parte N.S.W. Colliery Proprietors' Association Ltd and Other (1987) 163 CLR 117
[6] BHP Employees (Payment of Wages) Case (1972) 158 39 S.A.I.R. 158
[7] Bowen Coke Pty Ltd and Australian Workers Union of Employees Queensland and Others (1994) 145 QGIG 125
[8] Re Appeal from Determination of Public Service Arbitrator (Re Shift Work) (1969) 128 CAR 319
Whilst the authorities supported the actions of Corrective Services, it was conceded at paragraph 133 of the submission:
"…the prerogative of management is subject to the limited caveat that the commission may interfere where safety issues arise or where unreasonable or unfair demands are being placed on employees."
There was no evidence of existing safety issues.
Together
The Commission is being requested to arbitrate on whether to impose rosters which include 12 hour shifts, that are not operationally required, were not sought by management and have been rejected by the majority of staff.
Requirements to approve/rejection application
The Commission in determining whether to grant or refuse the application has all the powers under the Act. There should be a two-step process exercised:
· firstly, the Commission should satisfy itself that the proposed rosters comply with the relevant industrial instrument; and
· secondly, the Commission needs to satisfy itself that approving the proposed rosters would be in accordance with the Objectives of Act.
Conversely the rosters should not be approved if they are in breach of the relevant industrial instruments or on the balance of probabilities approving the application would be contrary to the objects of the Act.
Breaches of rostering principles outlined in the Certified Agreement
The rostering principles for shift work rosters are at Appendix 2 of the Certified Agreement with clause 2.3 stating "Shifts should involve a short cycle with regular rotations".
Corrective Services are seeking in this matter to imply some definition based upon post agreement behaviour however the provisions for interpreting terms of a certified agreement simply do not allow for the use of post agreement behaviour. The following authorities were cited:
· Seamen’s Union of Australia v Adelaide Steamship Co. Limited[9];
· Watcham v Attorney-General of the East Africa Protectorate[10]; and
· L Schuler A.G. v Wickman Machine Tool Sales Ltd[11].
[9] Seamen’s Union of Australia v Adelaide Steamship Co. Limited (1976) 46 FLR 444
[10] Watcham v Attorney-General of the East Africa Protectorate [1919] AC 533
[11] L Schuler A.G. v Wickman Machine Tool Sales Ltd [1973] UKHL 2
The question then becomes what is meant by clause 2.3 of the rostering principles and what is a short cycle.
Regular rotations were said to infer that the cycle repeats numerous times within a 12 month period with the argument in this case being the regular rotations should repeat at least three times, assuming 48 weeks are worked and the cycle should occur at least four times, which means a maximum period is 12 weeks. A short cycle cannot be greater than 12 weeks in duration and to define the duration of such a cycle as greater than 12 weeks in duration and to define the duration of such a cycle as greater than 12 weeks would strain the ordinary grammatical meaning of the phrase.
The language of clause 2.3 is clearly a mandatory provision, the word "should" occurs elsewhere within the Appendix and is clearly mandatory rather than directory. The roster cycle in this case of 28 weeks would not even repeat within a 12 month period.
The rostering principles at clause 1.3 state:
"The Department shall be guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12 Hour Shifts and relevant publications of the Department of Employment and Industrial Relations."
In evidence Coyne admitted:
· not viewing the ACTU Code of Conduct on 12 hour shifts;
· not viewing the relevant safety publications - Department of Employment and Industrial Relations;
· not knowing what a short cycle meant; and
· ignoring clause 1.3 of the guidelines.
Corrective Services in paragraphs 124 to 135 of their submission referred to management prerogative however there was no evidence led that management sought to assert its management prerogative. Coyne's evidence was of total management abdication on the design of the rosters leaving it up to one employee.
The rosters are in breach of clauses 1.3 and 2.3 of Appendix 2 of the Certified Agreement leading to the conclusion that the proposed rosters breached the abovementioned industrial instrument and on that basis should not be approved by the Commission.
The approach of Corrective Services that unless the breach of the industrial instrument was raised with them previously then the Commission should not rely on the breach to refuse to approve the application, was argued to be entirely the wrong approach to adopt. In respect of the breach of clause 1.3 Coyne never alluded to that breach and when he said he had personally checked to ensure the rosters complied with the rostering principles in Appendix 2 of the Certified Agreement, he had completely ignored the requirements of clause 1.3.
Approving application contrary to objectives of the Act
The submission identified certain objectives of the Act that would be breached if the proposed roster was approved. They were:
"Clause 3
(a) providing for rights and responsibilities that ensure economic advancement and social justice for all employees and employers;
…
(e) helping balance work and family life;
(f) promoting the effective and efficient operation of enterprises and industries; and
…
(p) ensuring that, when wages and employment conditions are determined by arbitration, the following are taken into account -
(i)for a matter involving the public sector - the financial position of the State and the relevant public sector entity, and the State’s fiscal strategy".
The areas of the proposed roster that were affected by the abovementioned objectives were identified as:
· breach of relevant industrial instrument - working through meal break;
· increased fatigue issues;
· additional overtime to be worked; and
· no material before the Commission in respect of the financial position of the State or the relevant public sector entity.
In summary, it was submitted the Commission should refuse the application on the following grounds:
· that clauses 1.3 and 2.3 of Appendix 2 of the Certified Agreement have been breached;
· approving the application would be contrary to 3(a), (e) and (f) of the Act; and
· the Commission cannot be satisfied that approving the application would meet 3(p)(i) of the Act.
Corrective Services Submissions in Reply
Corrective Services, on 14 August 2014 lodged with the Industrial Registrar a submission in reply pursuant to directions given by the Commission following the evidentiary phase of the proceedings.
On 15 August 2014, Together lodged with the Industrial Registrar an objection to the submissions in reply on the basis the submissions contained material that related to:
· facts not in evidence;
· misstating the facts; and
· misstating the law.
Together argued objections can only be made to correct impermissible statements in closing arguments.
The objection referred directly to the following paragraphs in the submission said to be objectionable:
· paragraphs 39, 40, 41, 45, 47, 48, 49 and 50.
Corrective Services in correspondence noted the objections, leaving the matter for the Commission to determine.
The Commission does not dispute the fundamental objections of Together with regards to the highlighted content of Corrective Services' submissions in reply and did not take into consideration content which is found to be objectionable.
In Reply
The submission addressed a range of issues that included:
· 12 hour shifts;
· Maryborough transfers;
· Fatigue;
· Little activity beyond 8.00 pm;
· Certified Agreement - Appendix 2, clause 2.3;
· Interpretation of a Certified Agreement - cited authorities including:
·Short v F W Hercus Pty Ltd[12]; and
[12] Short v F W Hercus Pty Ltd [1993] FCA 51
·Transport Workers’ Union of Australia v Linfox Australia Pty Ltd[13];
[13] Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829
· construction of Awards - cited authorities including:
·Kucks v CSR Limited[14];
[14] Kucks v CSR Limited (1996) 66 IR 182
·Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd[15]; and
[15] Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208
·Amcor Ltd v Construction, Forestry, Mining and Energy Union[16];
[16] Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10
· short cycle - narrow interpretation by Together;
· ACTU guidelines;
· meal break;
· overtime;
· Objects of the Act;
· safety;
· managerial prerogative - cited authorities including:
·State of Queensland (Department of Community Safety) v Together Queensland, Industrial Union of Employees[17]; and
·Australian Federated Union of Locomotive Enginemen v State Rail Authority of NSW[18].
[17] State of Queensland (Department of Community Safety) v Together Queensland, Industrial Union of Employees [2014] QIRC 034
[18] Australian Federated Union of Locomotive Enginemen v State Rail Authority of NSW (1984) 295 CAR 188
In concluding, it was submitted the union had provided no evidence to demonstrate that the proposed roster will involve officers undertaking shifts which are excessive, unsafe, unjust or unreasonable. Further the proposed roster was not at odds with the Certified Agreement or the Act.
Conclusion
Background
The employment terms and conditions of the Escort Unit are regulated by both an Award and Certified Agreement with any inconsistency between the Certified Agreement and the Award being found to exist, then the Certified Agreement prevails.
The Certified Agreement in respect of rostering arrangements contains specific content with regards to both the establishment and amending of rosters. At clause 3.1.4 of the Certified Agreement it states:
"Prior to creating or amending any roster, the Department will consult with the Union and with employees directly affected by the roster."
In this particular case it emerged that on a non-specified date in 2013 a process to amend the roster applicable to staff in the Escort Unit was commenced by Corrective Services with the establishment of a roster panel comprising of three persons, one of whom was the "local" union representative (Eagleton).
Coyne gave evidence that in the course of deliberations Eagleton had proposed the inclusion of 12 hour shifts in the amended roster and at some stage Coyne was informed by Eagleton he had polled staff with a majority wanting 12 hour shifts. It is a matter of fact the roster was put to a ballot without any involvement of Together (aside from Eagleton) and accepted by the narrowest of margins. Ultimately the ballot was voided due to amongst other things the failure to involve Together. The failure of Coyne to consult Together was argued to have occurred as a direct result of him misunderstanding Eagleton's union status and of not being a person who usually dealt with the union per se.
In an area such as Corrective Services, which historically has a high level union presence and involvement, I do not accept that a person of Coyne's standing would inadvertently have failed to contact Together at any stage of the process.
A second process was commenced in or around September 2013 with Eagleton not being a member of the roster committee on this occasion. On the face it would appear the consultation activities of the roster panel were in line with established practice and there was a direct involvement of Together at various stages of the process. The proposed roster that emanated from the process as was the case with the "voided" roster contained provision for 12 hour shifts which according to Coyne had been included at the sole instigation of Eagleton and not supported by Corrective Services at the time.
On 9 February 2014 the ballot was counted and the roster proposal rejected by staff. Corrective Services pursuant to clause 3.1.5(e) referred the matter to the Commission.
Matters for Determination
The proposition annunciate by Corrective Services on the following matters being the focus of the Commission in deliberations is accepted:
"Whether the Department has followed the procedure and process required under the Queensland Corrective Services - Correctional Employees' Certified Agreement 2013 (the relevant Agreement) for the Escort and Security Branch roster changes; and where the answer is held to be in the affirmative; and
Whether there are any sound reasons why Queensland Corrective Services (QCS) should not be permitted to exercise its managerial prerogative to implement the roster to meet the operational requirements of the Escort and Security Branch."
Note: Whilst the voided proposed roster change was deficient in many respects that particular process was not the subject of considerations as the recommenced process in September 2013 effectively "kick started" the proposed roster that led to this arbitration. Nevertheless the issue of 12 hour shifts is an ongoing residue of the voided process with the intentions of Corrective Services to have such shifts included in the second proposed roster despite the evidence of Coyne it was not initially supported by Corrective Services.
Whether Corrective Services followed procedure and policy required by the Certified Agreement
To undertake changes to an existing roster there is a requirement of a mandatory nature (clause 3.1.4 of the Certified Agreement) for Corrective Services to consult with the union and employees directly affected by the roster. There is evidence from both parties of consultations at various levels which satisfies the Commission of compliance in this respect of the process.
The Certified Agreement at Appendix 2 contains guidelines that were developed by representatives of Corrective Services and Together specifically for rostering shift work.
Acknowledging the meaning of guidelines contained within the Macquarie Dictionary and the fact that the parties have included in Appendix 2 to the Certified Agreement, such guidelines, it is sufficient to establish there is a legitimate reason why such guidelines should not be ignored:
"guideline…(usually plural) a statement which offers advice on the implementation of a policy…"
Appendix 2, clause 1.2 of the Certified Agreement states:
"The Department acknowledges that it has an obligation to implement work rosters which lessen any unwanted effects on the physical and psychological well-being of staff who are required to undertake shift work."
In this particular case Corrective Services have argued that the current operational arrangements were unsuitable hence the decision to implement an amended roster. The current roster, which is made up exclusively of eight and nine hour shifts with the proposed roster containing a number of 12 hour shifts which, in effect will increase an employee's time in the workplace in some instances by 30 per cent per shift. In terms of the obligation upon Corrective Services to lessen any unwanted physical or psychological effects on staff, one would assume the requirements of clause 1.3 of Appendix 2 of the Certified Agreement would be of some importance in the decision making process:
"The Department shall be guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12 Hour Shifts and relevant publications of the Department of Employment and Industrial Relations."
Coyne in the course of cross-examination gave evidence that he had not consulted the occupational health and safety provisions of the ACTU Code of Conduct on 12 hour shifts nor was there evidence of having accessed relevant publications of the Department of Employment and Industrial Relations (DEIR) on the same topic. Submissions on behalf of Corrective Services put forward argument that DEIR had not been in existence for some time due to Machinery of Government changes, however the changes mentioned did not have the effect of "null and voiding" any such material mentioned in the relevant cause.
The actions of Corrective Services to completely ignore the abovementioned occupational health and safety provisions in the formulation of the proposed roster is found to be a significant breach.
At clause 2.3 of Appendix 2 of the Certified Agreement, there is reference to shifts that "should" involve a short cycle, stating:
"Shifts should involve a short cycle with regular rotations".
It is not my intention on the limited material before the proceedings to determine the "duration" of a short cycle, suffice to say in this case the proposed roster of some 28 weeks duration seeks to replace an existing roster of 22 weeks duration and could not in the circumstances be reasonably defined as a short cycle but more to the point it would (if implemented) be a significant increase to the existing shift cycle.
There was on the evidence deficiencies in the conduct of Corrective Services in regards to the failure to be guided by the relevant provisions of Appendix 2 of the Certified Agreement.
Managerial Prerogative
The Certified Agreement states at clause 3.1.3:
"The Department will establish rosters, and deploy employees to rosters, to meet the operational needs of the work area."
However whilst providing such a discretion to the employer, it is not of a unilateral nature in that there is a requirement to ballot "employees directly affected" by the rosters and in this case the affected employees chose a course that rejected the proposed roster. Where a proposal is rejected the matter is referred to the Commission for arbitration and a case must be made for the implementation of the proposed roster.
[100]There effectively was no evidence in the proceedings of the type that identifies with clarity the reasons for rejection of the proposal in the ballot, although the evidence of Tanner and Mawhinney (as individuals who participated in the ballot) was from their perspective there were concerns around the issue of the 12 hour shifts. It is not my intention to speculate the reasons for rejection suffice to say the affected employees did not offer support to the proposed roster.
[101]It is not of question that an employer has the right to manage the operational needs of the business and this has been reflected in numerous cases in years past including Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cairns Base Hospital[19] where McKenzie P identified the test to be applied in such circumstances:
[19] Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cairns Base Hospital (1995) 150 QGIG 1401
"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 made of employees are unjust or unreasonable."
[102]In this case Coyne's evidence was that the current operational arrangements were not satisfactory for the following reasons:
· "the existing afternoon shifts are not sufficient to operate the control room, secure equipment room and return offenders to their correctional centre within a reasonable timeframe;
· the current roster does not accommodate current staffing levels (e.g. it is a 22 person roster);
· the current roster has a poor match to operational demand;
· the current roster has unnecessary staffing coverage during very low demand periods (e.g. 7.30 pm to 9.00 pm Monday to Friday);
· the new roster will accommodate required staffing levels; and
· the new roster better matches operational demand."
[103]Close examination of the evidence in the proceedings would indicate significant reliance was placed upon the task of work involving the transfer of prisoners from Brisbane to Maryborough which was said to occur around two to three occasions per week. This task was generally not completed within the shift times available in the current roster therefore attracting an overtime payment for the three officers involved. Whilst this may be an operational arrangement that requires some consideration, I am not satisfied the approach of Corrective Services to propose a 28 week roster cycle including 12 hour shifts is reasonable in terms of addressing this particular issue.
[104]The roles of officers in the Escort Unit involve a high level of responsibility and exposure to levels of risk to not only themselves but potentially to the community to the extent it is necessary that the roster governing their employment allows for considerations regarding management of fatigue issues. The proposed roster, in my view, falls short of adequately responding to these issues and is therefore unjust and unreasonable.
Principle Object of the Act
[105]Together, in submissions, argued that approving the proposed roster would be contrary to the objects of the Act however the evidentiary case for Together did not provide a particular focus on this aspect of their submissions that would warrant an extensive response by the Commission.
Financial Impact on Employees
[106]The evidence regarding any financial disadvantage for employees if the proposed roster was to be introduced was limited to Mawhinney's evidence-in-chief and not supported with the tendering of substantive factual evidence to confirm the alleged losses of up to $3,000 per annum. In any event the fact that the introduction of a new roster may have the consequence of loss of income, on its own it is not sufficient to stop the introduction of new hours of work and in this case it allegedly related to either shift penalties or overtime which would no longer be required to be worked. Thus the employee would not have suffered the disruption that attracted such payments (see The Australian Workers' Union of Employees, Queensland v Redcliffe City Council[20]).
[20] The Australian Workers' Union of Employees, Queensland v Redcliffe City Council (1997) 156 QGIG 266
Findings
[107]Having considered the evidence, material and submissions before the Commission, it has not been established on the requisite standard of proof that:
· Corrective Services have complied with the process and procedures contained within the Certified Agreement (including Appendix 2); and
· a case has been made for the approval of the proposed 28 week roster cycle on operational grounds.
[108]Accordingly, the proposed roster is not approved.
[109]I so order.
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