Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Correctional Corporations of Australia [1999] QIRC 199 (1999) 162 QGIG 109

108 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 September, 1999 24 September, l 999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 109 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION COMMISSIONER BECHLY Industrial Relations Act /999- s. 284(2) - inteipretation o f indumial instrument Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees Al'l,'D Correctional Corporations of Australia (D32 of 1999) Section 284(1) - lnteipretation of Certified Ag reement DECISION 9 September I 999 lhe parties to the Borallon Correctional Centre Certified Agreement 1997 have jointly requested that the Commission mediate by way of deciding what the intention of the parties was with respect to one aspect of the agreement when it was neg otiated in I 997. The issue between the parties is what benefits, if any. should flow from the introduction of 12 hour shifLS. Representatives of employees hold the view that all labour savings should be regarded as productivity gains and the full benefit should be distributed to employees. The employer, Correction Corporation of Australia Pty Ltd (CCA) who manage t h e priso n for the Queensland Corrective Services Commission (QCSC) argues that the Ag.reement does not intend that to be the case; that the Agreement, by vinue of some of the increase negotiated in I 997, already provides a productivity benefit to remaining employees; that the negotiated Agreement to retain surplus employees and not force retrenchments must be taken into account and the requirement by the QCSC that contract labour charges be reduced through a reduction in management fees removes any pro�pect of any productivity benefit as claimed. In progressing the matter the Australian Liquor. Hospitality and Miscellaneous Workers Union, Queensland Branch. Union of Employees (ALHMWU) relied on affidavits from Phillip Roben Norman Graham, a Unit Correctional Officer and Peter Roben Amos, a Security Supervisor and oral evidence given by Richard Gilben. also employed at the Centre. The employer relied on the oral evidence given by Robert Bradbury, the present General Manager of the Correctional Centre and affidavit material provided by Terry A . Lawson, the General Manager of CCA. It was a ma11er of ag reement between the parties that the affidavit material be tendered and that the persons who provided the affidavitS not be subject to cross-examination. It was acknowledged that the contenLS of the affidavits contained c ontradictions whjch would leave the Commission in a state of uncenamty as to what had actually occurred between the parties. The ba.1is of the problem lies in the change from eight hour shifLS roster to twelve hours shift rosters. This change was brought about by QCSC requiring that QCA introduce a change in prisoner management which reduced the hours that prisoners were allowed out of cells. This was to be managed through 12 hour shifts. As a result the decision by QCSC, QCC was required to introduce changed shift rosters and to reassess management fees to reflect any labour savings achieved through new shift rosters. This direction is contained in correspondence dated 7 August 1996 to Mr Terry Lawson from the Director-General of Qcsc. ::ODMA\GRPWISE\QIRC-DOM.IRO-POI .GENERALI :29581 .J QGIG 24/9/99 -- 1 of 2 -- 110 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 September, 1999 There is affid avi1 evide nce from Me ssrs Amos and Graham that a meeting was held in August or September 1996 with Messn Lawson and J. Mealcins, the then Ge.neral Manager of the Centre at which discussions too k place conce rning a log of claims which had been the subje ct of unsuccessful negotiations over a period of seve ral months and also on twelve hour shift rosters which had not been the subj ect of prior discussion. It appears that the log of claims sought al least the following items:- /\ wage increase of 6.9% effective from July 1996; • Future wage increases based on 1he full CPI index moveme nts: • Positive move towards a classification strucmre: • Reduction in hours to 38 per week as against th" 42 per week proposed by CCA. At the meeting in August/Sep1ember refe rred to a bove Mr Lawson advised that CCA did not have the financial capacity to meet the demands in the log of claims. This appears to have been the position it adopted throughout the negotiations to that date. This is important 10 the conside ration of the issue before me and must be considered in the light of the final increases negotiated. The position adopted at that meeting by the CCA wa.s influenced by the outcome o f negotiations recently held between CCA and QCSC for a funher five year management contract for the Centre. Pan of that re-negotiation was a requirement, es tablished in the contract price, to discount funhe r CPI increases in cost redem ptions under t he contract by I% on the con1ract price pe r year. The ba.si.s of the re duction in the contract price was t.he pe rceived productivity gai ns t hat were demanded by the Governmen t administrators of the c ontract. This new contract arrangement placed considerahle pressure on CCA to implement a twelve hour shift roster al the centre. The affidav it material of Messrs Amos and Graham expresses a belief that Mr Lawson made a commitment that all savings from the introduction of twelve hour shift roSte rs would be passed on to Staff. Tiiis belief was discussed with othe r employe es and it is conte nded that this had a later significant bearing on the fi nal 01ncome of negotiations on the Jog of claims an d the twelve hour shift roster. Mr Lawson has a different view of the outcome of that meeting. His affidavit ma terial indicates that the employe e representatives were aware of the co ntractual requirement and that, while he rein forced the need for produc tivity increases, he cenamly promised some return of productivity saving to all employees in the form of job secu rity over the contract term (5 years) and in t he yet to be negotiated wage inc,reases arisrng from the E nterprise Agreement. The affidavit material of Messrs Amos and Graham offers a point of view that that meeting was an attempt to break the deadlock which had occurred with re spect to the Jog of claims but took place in two pans. Firstly a discussion occurred on the log of claims and the CCA's financial inability to conc ede the 6.9% demanded in the log along with the other mat.tees. It is then Slated by Mr Amos that the matter of a twelve hour shift was raised "in what appeared to be an unrelated m auer.''. Mr Graham state s that '·the firS1 part oi the m eeting focussed on the issue of the log of claims but Mr Lawson s eemed more intereS1ed in the issue of twelve hour shifts. It had been explained to me that mana gement was seeking the introduction of twelve hours shifts 10 coincide with a reduc ed unlock, from sixteen hou rs per day to twelve hours per day, that was being proposed by the Que ensland Corrective Services Commission.". I have perused the minutes of meetings of the Joi nt Consultative Commiuee held to negotiate the Agreement. The firS1 of these occurred on 3 Oc1ober J996. The introduction of 12 hour shifts was the first key issue raised along with an appropriate pay structure . Ele ven items were raised for consideration. Three o( these directly relate d to the introduction of a J2 hour shift. Some othe r items raised were pay rates, workplace change to ensure economic viability, and job security. The minutes record that "Mr Mea kins explained that the current contract does not allow for an increase in funds only the CPI less I% adjustment. Jf any funds were recoverable inte rnally those moneys would go 10 the officers. [I was agreed at that meeting !hat both panies would table their establishment models at the next meeting for funher discussion and it was noted CCA had made a commitment to keep everyone in a job; that there would be a requirement for less correctional officers but that natural attrition a nd creation of holiday relief would help alleviate excess staffing. No redundancy packages were to be o ffered. There were seven recorded meetings of the JCC from 3 Oc tober until I 3 December when an agreed position was reached. At each meeting the mauer of I2 hour shifts formed an integral part of discuss ions. Other ite ms raised included ftex.ihility of start and finish times, autonomous work teams. communication between managemen t and employees, Boralion's Mission Statement, management, rotation o f officers through duties, additional Staff in C Block, casual work. bealth and safety issues, training, entry of vehicles. time officers have for cell searches, overtime is.111es, sick leave bonus scheme, upgrading of security officers 10 unit security o fficers, relief of unit security officers by security office r, annual leave, wage increa se, 40 hour roster, special leave, etc. Regardless of the view held by Messrs Amos and Graham the business conduc,1. ed by the JCC clearly indicates that the matter of 12 hour shifts was an integral part of wide-ranging discussions on the content of th.e proposed agreement. On 14 November the minutes reveal that an underta king was requested of CCA that sho uld there be any surplus saving a s a consequence of the reduction in Slaff (3 by natural attrition) ove r the life of the Agreement, such savings be passed on to S'laff. This was to be raised by the General Manager with his supervisor and dealt with at the next me eting. At that meeting. held on 21 November Mr Meakins reported that "a s the reductions in staff will occur by natu ral aurition. it is difficult at this stage to forecast what, if and when an y savings will be achieved. CCA howeve r is prepared to review the mall er over the life of the agreement.". On I 3 December an agreed posiuon was reached within th e JCC. This agreed position followed discussion on a number of po.ints. Included among other matters were the introd uction of a twelve hour shift r0S1er and wage increases. It appears th at the contending wage increases dealt with between the panies were full CPI on the one hand and full CPI + I% on the other. The agreed proposal recorded in the minu tes is in the following form:- • 40 hour week (ave rage)-6 we ek cycle • Full CPI from J July 1997 18 month agreemen t operative from 1 January I997 • Commitment to commence re-neg0tiation of agre eme nt 6 months before expiry date Annual leave 24 September, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL G.t\ZETTE 111 Si ck leave £Jigibility da1e for sick leave bonus sch eme Special leave (ability to take single days of Annual Leave for pe rsonal commitments) Commitment to reducing sick leave absenteeism Wage increase (full CPI+ I%) At no stage is th�re a record of any discussion o f the form or calculation proposed by Mr Gilben in exhibit 5 which proposes savings of 5580,617 per year be split amongst employees . _ A possible red uction of only three staff which was raised in the m.inutes of J 4 November was consid ered. but by natural attrition. lliis cos1 saving facmr was always conside red against the fact that the operating cont ract price had been reduced by the Que ensland Correc tive Se rvices Commission to take JOIO account labour savings a.,sociated with th e introduction of I 2 hour shjft roste rs. Th� wage increases during th e life of the Agre ement i.e. CPI + J% were finally negotiated after all issues. including possible savings related to the introduction of 12 hour roste rs we re considered. 1he combination of the reductJ?n in the service foe to _1ak.e in to acco unt 12 hour roster savings, guarantees of job security, natural anrition and the reference ,n 1he nunutes of 14 November of a cons1dera11on of three staff savings and the final wage increase of CPI + J% lead me to the belief that the proposal put forwr,rd by Mr Gilben in exhibit 5 is untenable and could not be an interpretation of the for m or intent oi the Agre emen t. While I.he form of_the Agre ement does make some reference in the Objectives 10 improvements in wages as a consequence of achieved increases in producuvny and e!f1c1ency at Pari 2 and pr�poses a review oi th e twelve hour shifts and associated m atters in Pan 3 there is nothing in the Agreement whJch would suggest that the proposal contarned m exhibit 5 has any foundation. Productivity meas u res as prop?sed hy exhibit 5 are such as lo re quire agreemen t by the parties after extensive negotiations prior to the finalisation of the Agree�ent. �o such negouat1�ns were shown to have taken place. Where p roductivity formulae are agre ed between the panies it is essential I.hat they he co�t".'ned in the Agreement 1rself. The fact that no such formuJa has heen msened m the Agre emen1 weighs heavily againS1 the proposals contained i n exh1b11 ). R.E. BECHLY, Commissioner. Releas«l: JO September I999 Appearances:- • Mr J. Martin for the Australian Liquor , Hospitality and Miscellaneous Workers Union. Queensland Branch. Union o f Employees. • Mr L. French o f Re dwing ConsuJting, on behalf of Correctional Corporation s of Australia. ######ii#####lt#lt##########It####################1#1############### ############-##################### ########################### I' '1 II , ·1 -- 2 of 2 --