Department of Corrective Services v Queensland Public Sector Union of Employees [2003] QIRC 165 (2003) 174 QGIG 196

196 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 September, 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 148 – assistance in negotiating by conciliation – s. 230(4) – application for order Department of Corrective Services AND Queensland Public Sector Union of Employees (No. B1135 of 2003) COMMISSIONER BROWN 29 August 2003 REPORT ON DECISION (as edited) In giving his decision from the bench on 29 August 2003, Commissioner Brown stated: -- 1 of 2 -- 19 September, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 197 “I have considered the submissions of the parties in the time available and acknowledge that the parties have been similarly pressured by time factors to complete their submissions without the presentation of witness evidence or the ability to cross-examine witnesses. I accept the submissions of Mr McKay that the Commission has a number of options in the Industrial Relations Act 1999 (Act) with respect to the consideration of whether or not orders preventing the taking of industrial action, protected or otherwise, could or should be made. I also accept the position advanced by Mr Pascoe that the provisions of the Act specific to the point in question must be given primacy and in this matter I believe that it is s. 148 and ss. (3) and (4) to be more specific. However other areas such as the objects of the Act and the powers and functions of the Commission can’t be ignored and in particular s. 320(3) and further ss. (5) which directs the Commission to the public interest in the objects of the Act. I am sympathetic towards the argument of Mr McKay that there are good reasons to believe that there exists (during strike action) a heightened likelihood of risk to personal health and safety of inmates and also to staff performing duties during stoppages. And this is compounded by the fact that it is proposed that all facilities cease at once for 12 hours. A circumstance that the parties agree has not occurred for 13 years, possibly more. Further, according to Mr McKay, there are more facilities, more prisoners and a tighter number of management level staff available to assist in the centres than existed in 1990. I might point out that the transcript last night recorded that I'd said 1999. I meant 1990. Mr McKay further submitted management's lack of skill to perform the duties to the level of correctional officers, particularly in connection with the more sophisticated monitoring equipment in some centres, compounded this problem. This, he said, could lead to a situation whereby inmates and management alike would be at greater risk of injury or complications from health problems than would normally be the case. Mr Pascoe, on the other hand, has asserted strongly that his members have negotiated in good faith, have engaged in little or no industrial action, let alone protracted industrial action, and have a right to seek to further their aims by the use of protected action. A situation that is prima facie supported by the Act. Mr Pascoe rejected the assertions that there is an increased likelihood of risk (related to personal safety health) as advanced by Mr McKay. I am loathe to conclude that the Union and its members should be denied access to protected action which both parties had agreed had been properly established. It is the view of the Commission that this action should not have been executed in such a fashion as to cause a serious and adverse impact, possibly physically, to members of the community and in particular I refer to inmates and those people from the management ranks that step up to the plate. (Provide coverage in prisons during stoppages). To this end I indicated that I did not support the concept of a simultaneous 12 hour stoppage State-wide in all facilities. I'll depart from the transcript at this stage. Mr McKay’s submissions that the reserve forces would be stretched to an unsafe point are accepted. It was for these reasons that yesterday I made the recommendation for the union to rearrange it's plan of action so that replacement staff drawn from management would not be stretched to unsafe levels as mentioned. This morning the Union indicated support for the recommendation. However, later this morning Mr Pascoe has advised (the commission) of a decision by members to reject it. There seems little point, save for completeness in recording that the Department has also rejected that part of the recommendation directed at them. The Commission has earlier expressed the view that the action in the planned format caused serious concerns regarding the risk of injury and the diminished ability to provide medical and other assistance during a State-wide stoppage. The Commission further expressed the view as to how that would be more manageable in another format, i.e., not a State-wide stoppage. I now say further that the extra police needed to patrol perimeters (of prisons), may mean that the numbers of police remaining to perform normal policing work in the community would be diminished. This also would, in the view of the Commission, impact adversely on the safety and welfare of the community. Section 148(2) provides the Commission with the conciliation powers it would have pursuant to s. 230 having considered all of the issues and submissions, I issue orders pursuant to s. 230(4).”. That the stoppage as planned not occur. (See order dated 29 August 2003). Dated 29 August 2003. By the Commission, [L.S.] E. EWALD, Industrial Registrar. Appearances: Mr J. Pascoe for the Queensland Public Sector Union of Employees, with him Mr M. D. Brandon and Mr R. Pratt. Mr P. McKay for the Department of Industrial Relations, with him Mr T. Barlow, Mr N. Taylor, Ms M. Davidson, Ms A. Pettie and Mr C. Udemans on behalf of the Department of Corrective Services. -- 2 of 2 --