Borallon Private Correctional Facility Award [2000] QIRC 49 (2000) 164 QGIG 198

198 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 June, 2000 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to make, amend and repeal award Borallon Private Correctional Facility Award (No. B380 of 2000) COMMISSIONERS EDWARDS, BECHLY, SWAN 13 June 2000 Rescission of Existing Award – Application for New Award – 38 Hour Week –– Inspections – Facility Operated and Managed Privately – Tender Process – Flow–On of Certified Agreement Wage Rates – Approved Rescission of Existing Award and Creation of New Award with 38 Hour Week – Date of Operation 5 June 2000. DECISION This is an application by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) for the rescission of the Borallon Private Correctional Facility Award and the creation of a new award entitled the “Borallon Correctional Centre Award”. On 5 May 2000 the Registrar received correspondence of even date from the Department of Corrective Services regarding this application (Exhibit 1) which states: – “. . . Borallon Correctional Centre is a Department of Corrective Services facility, currently privately managed and operated under contract by Corrections Corporation of Australia. Whilst the Department has no direct interest in the proceedings before the Commission, the Department would like to inform the Commission that the application has been made during the tender period for the continued management and operation of the Correctional Centre. The Department recognises that the Commission has an application before it, which requires consideration in accordance with due process and the Department does not wish to change that process or intervene in proceedings. However, it may be appropriate for the Commission to be informed with respect to some details of the tender process. The following details are provided for the Commission’s information:– -- 1 of 2 -- 23 June, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 199 . The invitation to tender for the management and operation of Borallon Correctional Centre was released by the Department on 29 March 2000; . The Tender period closes on 23 May 2000; . The term of the new contract is for five years with an option for a further five years; . Material provided in the Invitation to Tender included a copy of the current enterprise agreement and award for the centre; . Four private sector companies have expressed an intent to tender for the new contract; . The current contract with Corrections Corporation of Australia expires on 30 September 2000; . A decision on the new contract is targeted for late August 2000. . In view of the fact that the current application has the potential to impact on the centre operating costs for the successful tenderer (whether or not that is the current operator), action is being taken to advise tenderers of the application before the Commission and to indicate that they may obtain further information about the application from the Industrial Registrar or the ALHMWU. It would be appreciated if action could be taken to bring this information to the attention of the Commissioners hearing this application.”. Commissioner Edwards undertook an inspection of the Centre on 18 May 2000. Section 129 of the Industrial Relations Act 1999 states:– “Flow–on of certified agreements 129. The commission may include in an award provisions that are based on a certified agreement only if satisfied the provisions – (a) are consistent with principles established by the full bench that apply for deciding wages and employment conditions; and (b) are not contrary to the public interest.”. In opposing the application Mr French outlined that the parties have been successful in negotiating an agreement even though the negotiations were quite robust. Should the application be granted the respondent was uncertain if such would act as a disincentive to further negotiations. In considering the application, submissions were made relative to the appropriate classification levels for spine officers and the differentiation between unit and security personnel. The evidence as detailed is insufficient for a decision to be made to vary the existing arrangement. We are of the view that these classification levels should continue to be part of the agenda for enterprise bargaining. In relation to wage rates the application has provided that existing rates as well as rates as from 1 September 2000 should be accommodated. As such clause 5.2 of the Borallon Correctional Centre Certified Agreement states:– “Wage Increase The rate of pay applicable to that of the classification of Unit Correctional Officer Level 3 as at the commencement of this Agreement, shall be increased by 3% on 1 September 2000. All other rates of pay shall be adjusted accordingly to ensure that the classification relativities in dollar terms established at the commencement of this agreement, shall be maintained.”. Co–incidental the last decision of the State Wage Case operated as from 1 September 1999 with a current application seeking an increase as from 1 September 2000. The Commission has received submissions in regard to the 38–hour week. On consideration of the material available, the Commission is satisfied with the efforts to minimise costs provided that issues relating to flexibility in implementation of award conditions relating to morning and afternoon tea breaks, accumulation of rostered days off etc. are included in the new award as discussed during the hearing. Taking all factors into consideration we have decided:– (a) The provisions in the certified agreement are consistent with principles established by the full bench that apply for deciding wages and employment conditions and are not contrary to the public interest; (b) To create a new award entitled the “Borallon Correctional Centre Award”; (c) To grant a 38 hour week; (d) The matter of levels for spine officers and master control officers continue to be subject to negotiations at the enterprise level. If those discussions are not successful the parties are at liberty to seek the assistance of the Commission; (e) The wages rates including clause 5.2 of the current Borallon Correctional Centre Certified Agreement be reflected in the new award; (f) Accept the submissions of the parties relative to State Wage case applications B615 and B620 of 2000 that wage rates have no application to this new award either in 2000 or at a later time; and (g) The Borallon Private Correctional Facility Award be rescinded. The new award shall operate as from 5 June 2000. The applicant is directed to provide a draft document to the Industrial Registrar within 21 days of the date of release of this decision. The Commission Orders accordingly. K.L. EDWARDS, Commissioner. R.E. BECHLY, Commissioner. D.A. SWAN, Commissioner. Released: 13 June 2000 Appearances:– Mr J. Martin on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr L. French of Redwing Consulting and with him Mr G Howden on behalf of Corrections Corporation of Australia. . -- 2 of 2 --