Department of Corrective Services v The Queensland Public Sector Union of Employees [2006] QIRC 14 (2006) 181 QGIG 149

[Extract from Queensland Government Industrial Gazette, dated 3 February, 2006, Vol. 181, No. 5, pages 149-154] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 274 general powers Department of Corrective Services AND The Queensland Public Sector Union of Employees (B/2005/1229) (Maryborough Correctional Centre) VICE PRESIDENT LINNANE 23 January 2006 Application for arbitration seeking a determination regarding the implementation of a rotational roster at the Maryborough Correctional Centre - Application made pursuant to the "trial" established in the Department of Corrective Services - Correctional Employees Determination 2004 - A new roster proposed by Maryborough management requiring all permanent officers to rotate through the correctional centre was voted down at ballot - The Department commenced arbitration seeking a ruling on the roster - Staff concerned with rotational aspect of roster, implementation date and the level of training required - Undertakings given with respect to training - Implementation date extended - Roster approved with implementation date to coincide with the Stage 2 expansion of Maryborough Correctional Centre but not before 3 April 2006. DECISION [1] This is an application by the Department of Corrective Services (Department) for an immediate arbitration of new/flexible shift arrangements or rosters for the Maryborough Correctional Centre in accordance with clause 4.1.5(e) of the Department of Corrective Services - Correctional Employees Determination 2004 (Determination). Clause 4.1.5 of the Determination relevantly provides as follows: "4.1 Rosters ... 4.1.5New/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. -- 1 of 7 -- 2 (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 Determination 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.". [2] The Determination arose out of a decision of a Full Bench of this Commission (Linnane VP, Edwards C and Blades C) in The Queensland Public Sector Union of Employees v Department of Corrective Services (2004) 175 QGIG 1225. In that decision the Full Bench relevantly concluded the following at paragraphs [123] and [124]: "[123] Rosters: Whilst we acknowledge the difficulties being experienced by the DCS in the area of rostering, the Full Bench is most concerned that the DCS did not, at any time during the currency of the Department of Corrective Services Certified Agreement 2000 refer those difficulties to this Commission for arbitration. The reason for not so referring the matters to arbitration has been said to be the delay in having such matters arbitrated. The ballot process to date has also been responsible for inordinate delays. We propose the following: (i) in clause 4.1 of the Determination we will include a definition of the term 'directly affected' for the purposes of clause 6.2.2 of the Department of Corrective Services Correctional Employees' Interim Award - State. That definition will reflect the objective and obvious meaning of the term 'directly affected' i.e. only those employees rostered to work when the DCS seeks to change the roster are to be entitled to vote on the proposal to change the roster. Given the particular difficulties faced by the DCS in conducting ballots the vote will not include those persons absent on leave at the time the DCS seeks to change the roster; (ii) in restricting the persons entitled to vote in the secret ballot we anticipate that the time taken for the secret ballot will be considerably reduced. In that regard we are prepared to insert a provision in clause 4.1 of the Determination which would place a limit on the time taken for secret ballots under clause 6.2.2 of the Award to a period of seven (7) days where the change relates to a Correctional Centre as a whole or a number of Correctional Centres. Where the change relates to a section or sections of a Correctional Centre then the ballot should be concluded within four (4) days. It is the responses received within those time frames that will determine whether the 'written consent of greater than 50% of Employees directly affected' has been achieved; (iii) we will also include in clause 4.1 of the determination a definition of 'new/flexible shift arrangements' for the purpose of clause 6.2.2 of the Award. In our view it should only be where the 'new/flexible shift arrangements' involve a major or substantial change to the working arrangements that the 'written consent of greater than 50% of Employees directly affected' will be required; (iv) clause 6.2.1 of the Award currently provides that the roster established by DCS be in consultation with the QPSU. We expect that if 'new/flexible shift arrangements' are to be proposed by DCS, that consultation with the QPSU occur prior to any vote of 'employees directly affected' occurring. Such proposal should be in writing to the QPSU. There would be an expectation that the DCS and the QPSU would meet and discuss the proposal within 14 days of the proposal being received and that a response by the QPSU, in writing, be received by the DCS within a 14 day period. Where the QPSU raises real and serious concerns with the proposal we would expect the DCS to seriously consider those concerns prior to referring the proposal to ballot. Where the DCS changes its proposal as a result of consultation with the QPSU, we do not expect that the amended proposal needs to be further discussed with the QPSU prior to it being put to ballot. If either party wishes to utilise the dispute settlement procedure in the Award for the assistance of the Commission in conciliation, it may do so within that 14 day period; and (v) a further provision will be incorporated into clause 4.1 of the Determination that amends clause 6.2.2 of the Award in that, if the DCS proposal does not receive the approval of '50% of Employees directly affected', then the matter will be immediately referred to arbitration to be dealt with urgently. Such arbitration will be conducted by a single Member of the Commission. Without limiting that Member's discretion, we propose some guidelines for the urgent arbitration of such matters: -- 2 of 7 -- 3  has the DCS met with the QPSU and disclosed its reasons for the 'new/flexible shift arrangements'?  has the QPSU raised a serious and substantial basis for rejecting the proposal e.g. does the proposal have a serious and substantial health and safety concern, does the proposal raise some serious and substantial lifestyle concern for employees etc.  has the DCS complied with what are referred to as 'Departmental Guidelines for Rostering Shift Work' which are now incorporated into this Determination; and  acknowledgement that the DCS has a managerial prerogative in this area. [124] We envisage the urgent arbitration process to be expeditious and of short duration. We propose a trial of the proposal that the Commission urgently arbitrate such matters. The trial period would be the nominal period of the determination. We propose that there be a review and an evaluation of rostering practices and the process outlined above approximately two years and six months into the life of the determination.". [3] It is in that context that the Department has sought an urgent arbitration of this matter. It was anticipated that the proposed rosters would be implemented effective 28 November 2005, however, the Department's position on the implementation date has changed given that this matter was only heard on 11 January 2006. History - General [4] Following the decision of the Full Bench on 1 April 2004 and the release of the Determination on 15 May 2004 the Department decided to clearly establish the operational requirements of each of its correctional facilities and to develop a consistent approach throughout such facilities to rostering practices. In order to achieve this, the Department embarked on a state-wide review process. The Department developed a set of Guiding Principles to clearly establish the operational and rostering requirements that would need to be met at any correctional centre. [5] Whilst recognising that the operational requirements were a matter for the Department to determine, the Department undertook a consultative process with The Queensland Public Sector Union of Employees (QPSU) in establishing those operational requirements. Essentially, the principles were statements derived from the Determination and the Department of Corrective Services - Guidelines for Rostering Shift Work (Rostering Guidelines) which is Schedule 2 to the Determination. [6] Those Guiding Principles were forwarded to the QPSU under cover of a letter from the Department dated 24 May 2005. In that correspondence the Department advised the QPSU that it was about to commence a state-wide review of rosters in accordance with the Determination. A Joint Consultative Committee was established comprising both QPSU and Departmental representatives as a means of keeping the QPSU informed of the roster review process. The Department then established a roster review project team (project team). [7] That Joint Consultative Committee first met on 20 June 2005 where a copy of the Guiding Principles was tabled. The QPSU representatives at that meeting agreed that the Guiding Principles accurately reflected the provisions of the Determination. [8] The project team conducted a state-wide visit to correctional centres. That project team was comprised of Lisa Clearly - Principal Consultant with the Department of Corrective Services, Karen McNab - Human Resource Manager, Maryborough Correctional Centre and Jim Searoth - an external consultant from Shiftwork Solutions. The project team met with management and rostering representatives at each correctional centre to discuss the operational requirements and the current workforce and rostering processes in each centre. [9] The project team then developed two documents - the Addendum to DCS Shiftwork Rostering Guidelines (Addendum) and the DCS Workforce and Roster Management Guidelines (Workforce and Roster Management Guidelines). The Addendum was developed to address the specific shiftwork and rostering matters described at Parts 4 and 6 of the Determination, whilst the Workforce and Roster Management Guidelines were developed as a management tool to ensure a fair and consistent state-wide approach to roster administration was achieved. Together these documents formed the Department's proposal for a new roster model. [10]According to the evidence of Ms Cleary, the Addendum outlined the requirements for the main roster pool, reserve/relief rosters, specialist rosters and roster design. Further the Addendum provided for the posts/work areas which were to be included in the main roster, how the roster was to be grouped and detailed that a minimum number of main rosters were preferred. The Addendum required that individuals in the main roster pool were to be rotated through all posts within their assigned roster and through all rosters in the main roster pool. Further it detailed that -- 3 of 7 -- 4 reserve or relief rosters were to contain all of the spare and reserve shifts, that such shifts were to be deployed to meet the operational requirements as determined by the Department and that vacancies on the reserve roster would not be replaced. The Addendum further provided that under roster design the rostered shift allocation would be done in accordance with existing Departmental shiftwork Rostering Guidelines and the provisions of the Addendum. The Addendum further required that the shift allocation and design of new roster patterns must be on the basis of short cycles with regular rotations. [11]The Addendum and the Workforce and Roster Management Guidelines were then provided to the QPSU on 3 August 2005 requiring a response by 16 August 2005. The Department then met with the QPSU at an Agency Consultative Committee (ACC) on 5 August 2005, to discuss the proposal. Timeframes were given for the QPSU to respond and those timeframes were extended to enable a written response from the QPSU. Notwithstanding the extension of the timeframe to respond the QPSU did not respond within the twenty-one day time period allowed. [12]The QPSU did however respond on 1 September 2005 and raised the following concerns about the proposal:  the proposed implementation date for the new rosters;  the consultation process undertaken by the Department; and  the principles reduced the opportunity for staff to be rostered off duty for a long break i.e. up to 8 days. [13]The Department considered the concerns raised by the QPSU but continued to hold the view that:  the implementation date was prospective and beyond the 72 hours' notice of roster changes required by the Determination;  the consultation process was reasonable and that such process would continue;  the concerns over the "long breaks" in rosters were inconsistent with the guidelines from the Department of Corrective Services Correctional Employees' Interim Award - State (Award) and the Determination. [14]The Department advised the QPSU in correspondence dated 5 September 2005 that it would not change the proposed model on the basis of the concerns raised. [15]The Department again met with the QPSU at an ACC meeting on 7 September 2005 wherein the QPSU raised further concerns which were responded to by the Department. The QPSU sought a further extension to provide additional feedback about the Addendum and the Workforce & Roster Management Guidelines. The QPSU also requested that the Department delay the implementation of the new rosters until after Christmas. The Department advised that they would not agree to the delay. [16]The Department corresponded with the QPSU on 7 September 2005 advising that whilst they could not facilitate the QPSU's request to delay implementation it was prepared to grant a further seven day extension noting that the Department required rosters to be implemented from end of November 2005 rather than the previous deadline of 31 October 2005. [17]On 16 September 2005 the Department again met with the QPSU following receipt of correspondence from the QPSU on 15 September 2005. As a result of the meeting on 16 September 2005 the Department made a number of amendments to the Addendum and the Workforce and Roster Management Guidelines. As a result of QPSU representations, the Department made changes to the following elements of the Workforce and Roster Management Guideline:  training;  roster variations process;  managing unplanned leave; and  allocation of overtime. [18]The Department also took note of the concerns raised by the QPSU in relation to specialist rosters and work patterns. According to Ms Cleary, the Department acted reasonably and made changes that would not compromise the -- 4 of 7 -- 5 operational requirements of the Department. These changes were communicated orally to a QPSU representative who, according to Ms Cleary, indicated that the documents were acceptable from the QPSU's perspective. [19]The Department then proposed a further consultative process for the development of new rosters at each correctional centre. The General Manager at each correctional centre invited the Local Workplace Consultative Committee (LWCC) to be involved in the development of new rosters for their particular correctional centre. The LWCC is a committee made up of QPSU nominated staff representatives and management representatives. The LWCC nominated an agreed Roster Working Party/Committee whose responsibility it was to develop new rosters, in accordance with the Department's criteria for that particular centre. All proposed rosters were then to be forwarded to the project team for verification that it met the Department's rostering criteria. History - Maryborough Correctional Centre [20]The project team visited the Maryborough Centre on 16 June 2005 and met with management and roster representatives to discuss operational requirements and the current workforce and rostering practices. The General Manager of the Maryborough Centre, Bernard Kruhse, met with the LWCC on 13 July 2005 and nominations were called for QPSU representatives interested in joining the local roster working group. The person nominated as the QPSU representative was Alan Ingram. Mr Ingram has considerable experience with the development of rosters and was involved with the current Maryborough Correctional Centre roster model. The example rosters were developed and forwarded to the Maryborough Centre on 10 October 2005 although Mr Ingram did not receive the sample rosters until 14 October 2005. The LWCC was provided with fourteen (14) days to develop new rosters. [21]Mr Kruhse said that staff at the Maryborough Centre were informed of the impending roster review process through:  emails distributed from the Department's Deputy Director-General;  information on the Department's intranet site; and  staff meetings during which the Maryborough Centre was locked down to facilitate maximum staff attendance. [22]On 26 October 2005 a consultation process was agreed between Ron Fossen, a QPSU representative, and Mr Kruhse. That consultation process is outlined in paragraph 18 of Mr Kruhse's Affidavit (Exhibit 1). The process that followed is adequately outlined in Mr Kruhse's Affidavit. [23]On 2 November 2005 the main roster developed by the roster working group was forwarded to the project team for verification. [24]Feedback on those rosters was provided by the project team on 7 November 2005 which identified some problems with the pattern of work and the method of rotation. The roster working group then amended the rosters and forwarded the amended rosters to the project team on 7 November 2005. The Human Resources Manager at Maryborough was notified on that day that a roster was approved for ballot. The proposed "two-stage" rotational model that was approved for ballot meant that the residential roster would stand alone with manual monthly rotations until the Maryborough Centre moved to the five hundred bed roster model at which time all rotations will occur automatically. [25]Whilst Mr Kruhse had the view that the manual rotation was not the Centre's ideal operating position, due to the extra work required by the roster clerk, he authorised the roster approved by the Department to go to ballot as he believed that the model would be successful at ballot. [26]The ballot process at Maryborough commenced on 7 November 2005 with the main roster being put to all staff directly affected by the roster. The ballot process concluded on 14 November 2005. The roster was voted down forty (40) to twenty-eight (28). [27]It was Mr Kruhse's evidence that the rosters currently in place at the Maryborough Centre do not meet the Department's rostering criteria. Whilst they do provide for partial rotation they do not allow for full rotation of staff through the entire Centre. The current rosters also provide for frequent long breaks which also does not meet the Department's rostering criteria. Further, the current roster model does not meet the Centre's operational requirements for the second stage of expansion of the Centre. [28]The built capacity of the Maryborough Centre is five hundred (500) beds. Stage One of commissioning opened two hundred (200) beds. The second stage of commissioning commenced on 5 September 2005 and this required the commissioning of four, thirty bed secure units. The second stage of expansion will increase the operating capacity to four hundred and twenty-eight (428) beds by March 2006. -- 5 of 7 -- 6 [29]Stage One of the proposed roster requires staff to work 48 weeks in Centre Services, forty-eight (48) weeks in Secure 1 and forty-eight (48) weeks in Secure 6. The staff on the Residential roster would remain on that roster for eighteen (18) weeks, with a manual rotation to occur at the rate of two staff every six (6) weeks after the eighteen (18) weeks. Stage Two of the implementation of the rotation would require staff to work forty-eight (48) weeks in Centre Services, forty-eight (48) weeks in Secure 1, forty-eight (48) weeks in Residential/Centre Services and forty-eight (48) weeks in Secure 6. [30]Mr Kruhse's evidence is that he supports the concept of moving staff through all operational areas of the Centre and the length of each rotation. He says that the proposed roster meets the operational requirements of the Centre whilst enabling staff to maintain all of the skills required of a custodial corrections officer. The proposed roster, according to Mr Kruhse, will allow staff to work across all accommodation areas, and reduce the frequency of long breaks whilst meeting the operational requirements of the Centre. Mr Kruhse also sees the proposed roster as assisting in the development of staff through multi-skilling and further, he believes the roster will ensure equity in the shifts performed by staff to attract the aggregated shift allowance. Mr Kruhse indicated that he would like to implement the proposed roster to coincide with the expansion of the Maryborough Correctional Centre. [31]For the QPSU, evidence was given by Eion Bennett, a custodial correctional officer employed at the Maryborough Centre. Mr Bennett says that he can see no necessity for a review of rostering at the Maryborough Centre as the existing roster was only implemented eighteen (18) months ago. It is his opinion that the proposed roster will not provide the Department with the stated cost efficiencies or benefits and will cause ongoing costs in the form of increased training. In this regard Mr Bennett is also concerned that staff may be placed in jeopardy if they perform tasks without the required Departmental policy qualifications. Conclusion [32]The Department is seeking to have the roster, which is attachment BK8 to the Affidavit of Mr Kruhse (Exhibit 1) approved for implementation at Maryborough towards the end of March 2006 to coincide with the expansion of the Maryborough Correctional Centre. The Monday closest to that date is 3 April 2006. There has been no ballot for any reserve roster at the Maryborough Centre at this time. [33]Some of the evidence given in this matter was directed towards the use of temporaries and casuals at the Maryborough Centre. This issue has been the subject of disputation for some time. Whilst I note the concerns of members of the QPSU it is not a matter for determination in this proceeding. [34]The issues of concern for staff at the Maryborough Centre included the following: (i) staff wish to retain the current roster which has some element of rotation, however, it is not a fully rotational roster in the sense of the proposed roster. Officers at the Maryborough Centre have worked the current roster for some 18 months. The benefits of the current roster have been used by the Department elsewhere to promote the fully rotational roster model. It is the concept of rotating throughout residential, secure and centre services that is at the heart of the complaint by officers. It appears that officers did not have a problem with the pattern of work in the proposed roster - it is the full rotational aspect of the proposed roster which was of concern. I understand the concern that officers have in respect of family responsibilities and the Department's rather short original time frame for the implementation of the proposed roster that was before staff when they voted in the ballot i.e. end of November 2005. The fact is that Christmas has come and gone and the Department now is only seeking an implementation date of early April 2006. Officers will thus have a period of four months to organise alternate family arrangements. I accept that this will involve difficulties for some officers, particularly those with partners who also work shift work. There are however arrangements available to officers whereby shift changes can be made either informally with other officers or through a more formal arrangement; (ii) staff may not be provided for the required level of training to undertake all the duties in the proposed roster. The position is that both the Department, through Ms Cleary, and the General Manager of the Maryborough Centre have given undertakings that no officer will be required to perform duties for which they lack the required level of expertise i.e. officers will receive the necessary training prior to commencing in posts on the roster for which they do not currently have the necessary skills; (iii) that the issue of a review of rosters at the Maryborough Centre should have been conducted after the expansion due for the end of March 2006. I can imagine that the Department may have had difficulty excluding Maryborough from the roster review. Staff at other correctional centres may have objected on the basis that officers at the Maryborough Centre were being given some preferential treatment. The fact is that the Department decided to conduct the review in all correctional centres. It appears that officers at the Maryborough Correctional Centre have, in the past, been rather more flexible than officers in other correctional centres in adopting rosters that provide for rotation and they are to be commended for that. -- 6 of 7 -- 7 [35]With the Department now seeking an implementation date of 3 April 2006 I am of the view that officers will have sufficient time to re-arrange their family commitments. The roster is a one hundred and ninety-two (192) week roster and officers will be able to know with certainty where and when they will be working over that period. Where officers do have some difficulties with organising alternate family arrangements it seems that there are other mechanisms available to those officers to enable them to change shifts. As for the provision of the necessary training, the Department and Mr Kruhse have given undertakings in this regard. All officers should receive the appropriate training before being rostered to perform work on any post. [36]In all the circumstances I am prepared to approve the roster, which is attachment BK9 to the Affidavit of Mr Kruhse with the rotation outlined in the ballot which is attachment BK8 to the Affidavit of Mr Kruhse, for implementation at or about the time of the expansion of the Maryborough Correctional Centre but not before 3 April 2006. Order accordingly. D.M. LINNANE, Vice President. Hearing Details: 2006 11 January Appearances: Mr S. Donovan, with him Ms D. Gibson for the Department of Corrective Services. Mr B. Mann, with him Mr R. Nilon and Mr M. Thomas for The Queensland Public Sector Union of Employees. Released: 23 January 2006 Government Printer, Queensland The State of Queensland 2006. -- 7 of 7 --