Department of Corrective Services v The Queensland Public Sector Union of Employees [2005] QIRC 158 (2005) 180 QGIG 925

[Extract from Queensland Government Industrial Gazette, dated 2 December, 2005, Vol. 180, No.18, pages 925-926] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 329(b)(iv)-(v) powers incidental to exercise of jurisdiction Department of Corrective Services AND The Queensland Public Sector Union of Employees (B/2005/1183) VICE PRESIDENT LINNANE 17 November 2005 DECISION [1] This is an application by the Department of Corrective Services (Department) for an immediate arbitration of new flexible shift arrangements at the Wolston Correctional Centre in accordance with clause 4.1.5(e) of the Department of Corrective Services – Correctional Employees’ Determination 2004 (Determination). That Determination arose from the Full Bench decision in The Queensland Public Sector Union of Employees v Department of Corrective Services (2004) 175 QGIG 1225. The relevant aspects of that decision are paragraphs [123] to [132]. [2] Directions for the conduct of this matter were issued at a hearing on 27 October 2005 to the Department and the Queensland Public Sector Union of Employees (QPSU). Those directions required the Department to file and serve its material by the following day and the QPSU file and serve its material by 4 November 2005. The hearing was scheduled for 22 and 23 November 2005 to accommodate the QPSU otherwise it would have been listed for 3 and 4 November 2005. [3] On Tuesday 15 November 2005 correspondence was forwarded to the Industrial Registrar from Solicitors said to be acting on behalf of Brian Newman, the State Secretary of the Queensland Prison Officers’ Association Inc (QPOA). That correspondence stated that their client had been appointed as agent for 100 custodial correctional officers from Wolston Correctional Centre and that Mr Newman would be seeking to intervene in the matter, present evidence and make submissions on behalf of the custodial correctional officers. Notices of appointment of agent were filed in the Registry on 15 November 2005. That correspondence also indicated that Mr Newman would be seeking an adjournment of the hearing to a date to be fixed. [4] The matter was then listed for hearing on 16 November 2005 to deal with Mr Newman’s request for intervention and the adjournment of the hearing. An affidavit of Brian Anthony John Newman was filed by leave at the hearing. That affidavit commences with the statement that Mr Newman is employed as the State Secretary of the QPOA. Further he states that the QPOA is an association created to protect and promote the interests of it’s members who are prison officers in Queensland. [5] Mr Newman submits that he represents parties to the Determination in that he represents employees of the Department who are employed pursuant to the Department of Corrective Services Correctional Employees’ Interim Award – State (Award). Clause 1.3 of the Determination provides as follows: “1.3 Application This Determination will apply to the Director-General as Chief Executive Officer of the Department of Corrective Services (Department), the Queensland Public Sector Union of Employees (Union) and to those employees of the Department who are employed pursuant to the Department of Corrective Services Correctional Employee’s Interim Award – State, including Community Custody Program correctional employees.”. [6] In my view that application clause does not make the employees of the Department parties to the Determination. It simply states that the Determination applies to the employees. The Determination arose from the arbitration of a matter under s. 149 of the Industrial Relations Act 1999. The parties to the arbitration were the QPSU and the Department. The Determination gives the QPSU certain rights such as that found in clause 4.1.5 of the Determination. QPOA has no such rights under the Determination. [7] The application by Mr Newman is opposed by both the Department and the QPSU. [8] I indicated during the course of the hearing that I would not adjourn the hearing and nor would I allow further evidence to be adduced. I did indicate that I would reserve my decision on whether Mr Newman would be given a right to be heard in the matter and the conditions, if any, on which that right would be granted. [9] I have subsequently perused the material filed by the Department and the QPSU in the substantive matter. The material is voluminous. As I indicated to the parties on transcript, employees of the Department employed as -- 1 of 2 -- 2 custodial correctional officers have a right to veto rosters at correctional facilities where a majority of the persons directly affected vote against the roster. In the course of the hearing on the Determination the Department sought to reverse that situation and to have the final say on rosters. The Full Bench was not prepared to grant the Department’s claim at that time preferring the process which was outlined in paragraphs [123] and [124] of that decision. In paragraph [124] it was stated that the Full Bench envisaged “the urgent arbitration process to be expeditious and of short duration”. The Full Bench proposed a trial period for the process and indicated that there be a review and an evaluation of rostering practices at the end of that trial period. I am not prepared to move away from the Full Bench’s position that the arbitration process be expeditious and of short duration. [10] If this process does not work during the trial period there is a real possibility that the employees of the Department will lose the rights they currently have in respect of rosters. [11] In the circumstances I am not prepared to exercise my discretion and give Mr Newman a right to be heard in this matter. On this occasion Mr Newman is said to represent approximately sixty to seventy of the custodial correctional officers directly affected by the proposed rosters. If leave were to be granted to Mr Newman there is nothing to stop such employees in the future obtaining separate representation and thwarting any attempt at an expeditious arbitration of a short duration. I am advised that there are at least four or five correctional facilities where the custodial officers have recently voted against the Department’s proposed rosters. Each of those rosters is likely to be the subject of similar arbitration. There is currently before the Commission an application with respect to the Lotus Glen correctional facility. [12] The QPSU is more than capable of representing the interests of custodial officers directly affected by the Department’s proposed roster. The QPSU is an industrial organisation registered under the provisions of the Industrial Relations Act 1999. The QPOA is not such a registered industrial organisation. Whilst Mr Newman is seeking to appear in his own right as agent for various custodial officers, he is the State Secretary of the QPOA and I see no advantage whatsoever in granting Mr Newman a right to be heard in this matter. Persons whose rights will be directly affected by any determination made by the Commission in this matter have been afforded the right to present evidence and to participate in the proceedings, i.e. the QPSU on behalf of custodial correctional officers and the Department as the employer. Order accordingly. D.M. LINNANE, Vice President. Hearing Details: 2005 16 November Appearances: Mr. S. Donovan and with him Mr. P. McKay for the Department of Corrective Services. Mr. B. Mann for the Queensland Public Sector Union of Employees. Mr. B. Newman as agent for various custodial corrections officers. Released: 17 November 2005 Government Printer, Queensland The State of Queensland 2005. -- 2 of 2 --