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The State of Queensland (Queensland Corrective Services) v Together Queensland, Industrial Union of Employees[2015] QIRC 69

The State of Queensland (Queensland Corrective Services) v Together Queensland, Industrial Union of Employees[2015] QIRC 69

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

The State of Queensland (Queensland Corrective Services) v Together Queensland, Industrial Union of Employees [2015] QIRC 069

PARTIES:

The State of Queensland (Queensland Corrective Services)

(Applicant)

v

Together Queensland, Industrial Union of Employees

(Respondent)

CASE NO:

B/2013/42

PROCEEDING:

Application under a certified agreement for arbitration of new/flexible shift arrangements.

DELIVERED ON:

22 April 2015

HEARING DATES:

28, 29, 30 and 31 July 2014

Applicant's submissions filed 1 September 2014

Respondent's submissions filed 15 September  2014

Applicant's final submissions filed 22  September 2014

MEMBER:

Deputy President O'Connor

ORDERS:

  1. I approve the 59 rosters that went to ballot and as identified as attachments 1 to 59 to the application filed by the Department in the Industrial Registry.
  2. That the rosters not be implemented before 1 June 2015.

CATCHWORDS:

INDUSTRIAL LAW - CERTIFIED AGREEMENTS - PROCEDURES FOR PREVENTING AND SETTLING DISPUTES - ARBITTRATION BY INDUSTRIAL COMMISSION UNDER AN AGREEMENT - Application for arbitration or new/flexible shift arrangement under the Queensland Corrective Services - Correctional Employees' Certified Agreement 2010 - Where the certified agreement required approval by ballot of directly affected employees whenever new/flexible shift arrangements are proposed - Where the Department proposed to introduce new/flexible shift arrangements in the form roster changes - Where to proposal would result in loss of shift penalty payments - Where the proposal was rejected at ballot - Where the certified agreement required referral to the Industrial Commission under s 159 of the Industrial Relations Act 1999 (Qld) - Where the Department complied with the process and procedures set out in the Agreement - Whether the Union raised a serious and substantial basis for rejecting the proposal - Where the evidence supports the conclusion that the Commission should not interfere in the right of the Department to manage its business - Where demands made of employees by the Department are not unjust or unreasonable

CASES:

Industrial Relations Act 1999 (Qld), s 159

Barker v Queensland Fire and Rescue Authority (2001) 168 QGIG 237

Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40

Colorado Products (in prov liq) [2014] NSWSC 789

Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cairns Base Hospital (1995) 150 QGIG 1401

Macquarie Developments v Forrester [2005] NSWSC 674

Seamez v McLaughlin [1999] NSWSC 9

State of Queensland (Department of Community Safety) v Together Queensland, Industrial Union of Employees [2014] QIRC 34

The Queensland Public Sector Union of Employees v Department of Corrective Services B1380 of 2003

APPEARANCES:

Mr L. Casey and Ms D. Gibson for the Department of Justice and Attorney General.

Mr K. McKay for Together Queensland, Industrial Union of Employees. 

Decision

 Background

  1. [1]
    The application filed by the State of Queensland (Queensland Corrective Services) ("the Department") in the Industrial Registry on 5 July 2013 sought an arbitration of New/Flexible Shift Arrangements (Rosters) at a number of stated Correctional Centres in accordance with cl 4.1.5 (e) of the Queensland Corrective Services - Correctional Employees' Certified Agreement 2010 ("the Agreement").
  1. [2]
    The application is opposed by Together Queensland, Industrial Union of Employees ("the Union").

The relevant clause of the Agreement

  1. [3]
    Clause 4.1 provides as follows:

"4.1 Rosters

4.1.1 The ordinary hours of shift workers will be inclusive of meal times worked in shifts that average 38 hours per week over the life of the roster.

4.1.2 Shifts will be worked in accordance with a roster established by the Department.

4.1.3 The Department will establish rosters, and deploy employees to rosters, to meet the operational needs of the work area.

4.1.4 Prior to creating or amending any roster, the Department will consult with the Union and with employees directly affected by the roster."

  1. [4]
    Clause 4.1.5 of the Agreement relevantly provides:

"4.1.5  New/Flexible shift arrangements.

  1. (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.
  1. (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:
  1. (i)
    The Department will put the proposal in writing to the Union.
  1. (ii)
    The Department and the Union will meet to discuss the proposal within fourteen (14) days of the proposal being received.
  1. (iii)
    The Department will receive a reply from the Union within that fourteen (14) day period.
  1. (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.
  1. (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.
  1. (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.
  1. (d)
    Timeframes - The ballot for the above purposes will be limited to:
  1. (i)
    A seven (7) day period where the change relates to a Correctional Centre as a whole, or a number of Correctional Centres.
  1. (ii)
    A four (4) day period where the change relates to a section, or sections, of a Correctional Centre.
  1. (iii)
    For the purposes of this clause Correctional Centre shall mean any Centre or workplace where staff covered by this Agreement are employed.
  1. (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."

The relevant facts

  1. [5]
    The relevant facts are conveniently set out in the affidavit of Shane Victor Donovan. The factual background is not is dispute between the parties.
  1. [6]
    On 11 September 2012, as a consequence of Budget measures, the then Minister for Police and Community Safety, the Honourable Jack Dempsey MP announced that the Queensland Correctional Services (QCS) was to, amongst other things, reduce the out of cell time for prisoners from 11 hours to 10 hours per day.
  1. [7]
    Following discussions with employees and representatives of the Union, the change to the out of cell hours was initiated at all high security correctional centres on 29 October 2012, by bringing forward the lock-away time for prisoners by one hour.
  1. [8]
    The Department maintains that the reduction of out of cell time for prisoners has impacted upon the need to maintain 12 hour officer coverage in prisoner accommodation areas and other associated prisoner activity areas, such as but not limited to the kitchen, education, industries and activities.
  1. [9]
    It is estimated by the Department that the reduction in out of cell hours for prisoners from 11 to 10 hours in high secure public centres and the introduction of 11 hour shifts for affected posts would generate savings of approximately $5.5 million per annum.
  1. [10]
    The Department acknowledges that the introduction of the 11 hour shifts will impact on the take home pay of some staff members who will no longer be entitled to the Aggregated Shift Allowance and who will instead be entitled to penalty rates payable when weekends are worked.
  1. [11]
    Working groups were established at each correctional centre to inform the development of the new rosters.
  1. [12]
    The proposed new rosters were submitted for assessment and approval to ensure compliance with the applicable guidelines contained in the Agreement and the QCS Policy for Rostering and Workforce Management Systems.
  1. [13]
    Between 13 November 2012 and 16 January 2013, all 11 hour rosters for Activity Officers at Lotus Glen Correctional Centre, Townsville Correctional Centre, Capricornia Correctional Centre, Maryborough Correctional Centre, Woodford Correctional Centre, Brisbane Correctional Centre, Wolston Correctional Centre, and Brisbane Women's Correctional Centre were provided to the Union for the commencement of the 14 day consultative period in accordance with cl 4.1.5 (b) of the Agreement.
  1. [14]
    On or about 5 December 2012 it was confirmed that a ballot of affected Activities Officers at Wolston Correctional Centre and Brisbane Women's Correctional Centres approved the proposed rosters.
  1. [15]
    On or about 14 March 2013 and following the consultation period and ballot of affected Activities Officers, it was confirmed that the rosters had been rejected by the Activities Officers at Lotus Glen Correctional Centre, Townsville Correctional Centre, Townsville Correctional Centre, Capricornia Correctional Centre, Maryborough Correctional Centre, Woodford Correctional Centre, and Brisbane Correctional Centre.
  1. [16]
    By 19 March 2013, all other 11 hour rosters (except for the rosters developed by Brisbane Women's Correctional Centre), had been provided to the Union for the commencement of the 14 day consultative period in accordance with cl 4.1.5 of the Agreement.
  1. [17]
    On 16 April 2013, the rosters developed by Brisbane Women's Correctional Centre were provided to the Union for the commencement of the 14 day consultative period in accordance with cl 4.1.5 (b) of the Agreement.
  1. [18]
    On 14 May 2013, the Union was notified that, in accordance with cl 4.1.5 (d) (i) of the Agreement, a 7 day ballot of the proposed rosters across the State would commence.
  1. [19]
    When the ballot closed, 59 rosters out of 74 roster proposals were rejected by a vote of staff.
  1. [20]
    The Department is required by virtue of cl 4.1.5 (e) of the Agreement to refer the matter to the Commission for arbitration pursuant to s 149 of the Industrial Relations Act 1999 ("the Act").

The approach to the arbitration

  1. [21]
    The Full Bench in The Queensland Public Sector Union of Employees v Department of Corrective Services[1] gave direction in relation to how the Commission should approach an arbitration on matters similar to the one currently before the Commission.  In that case, the Full Bench wrote:

"(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:

  • 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."[2]

The Department's case

  1. [22]
    The Department submitted that the purpose of the arbitration before the Commission was to establish:
  1. (a)
    Whether the Department has followed the procedure and process required under the Queensland Corrective Services - Correctional Employees' Certified Agreement 2010 for the 59 rosters subject to the arbitration; and where the answer is held to be in the affirmative
  1. (b)
    Whether there are any sound reasons why the Department should not be permitted to exercise its managerial prerogative to implement the rosters to secure the $5.5 million per annum in savings while also meeting the operational requirements of the Department.
  1. [23]
    The rosters were submitted for the Maryborough Correctional Centre for assessment and approval, and to ensure compliance with the applicable rostering guidelines as detailed in the Agreement and the QCS Policy for Rostering and Workforce Management Systems.
  1. [24]
    When providing feedback, where the Union raises real and serious concerns, cl 4.1.5 (b) requires the Department to "seriously consider those concerns prior to referring the proposal to a ballot of directly affected employees".
  1. [25]
    Karen Dawn McGregor, the Principal Consultant, Human Resources in the Department, in her affidavit, deposes that the feedback was considered and where possible, attempts were made to accommodate any concerns that were raised.  Ms McGregor said that having considered the feedback, she was of the view that the majority of the concerns raised by the Union related to the decision to move to a new model of operation and not necessarily to the proposed rosters.
  1. [26]
    The view expressed by Ms McGregor was supported by the evidence of Mr Peter Clark, a Correctional Supervisor with the Department, who said the following in cross-examination:

"[Q:] Would you agree that the main core issues like for the TI feedback that's before you there was in regards to losing the aggregated shift allowance by changing their rosters from 12 hours over a seven day period?  

  1. [A:]
    Yes, I mean, yes.  I mean they're losing their week's leave and - and the extra time they've got to put in.
  1. [Q:]
    Yes?
  1. [A:]
    And yes, they feel, you know - that - you know, my memory in that, when we employed TI's and I still remember the PD's that come out, that there actually was - advertised as a 38 hour week, 12 hour shifts and 28 and a half.  And their aggravation is, well, that's not what they were sold to be employed and it's been changed on them.
  1. [Q:]
    So other than providing a roster which met the requirements for an aggregated shift allowance which, by definition, would give you the extra leave?  
  1. [A:]
    Mmm.
  1. [Q:]
    Those concerns couldn't be resolved could they? 
  1. [A:]
    No.
  1. [Q:]
    And really, the only way that those rosters would've got up is if there was agreement to continue paying the ASA?  
  1. [A:]
    The 28 and a half and - and, yes - the 11 hours, if they would've kept their five weeks leave, their 28 and a half, the 11 hours.  I mean they still wouldn't have been agreed because they've got to do extra - well I think nine, 11 shifts a year.  I can't remember.  
  1. [Q:]
    Yes, it depends on how many 11 hour shifts?  
  1. [A:]
    Yes.  But there probably would've – you might've had a more amicable outcome if - if you weren't taking everything off them.
  1. [Q:]
    Yes, but the main issue would be the week's leave and the 28 and a half per cent?  
  1. [A:]
    I'd say so.  Yes."[3]
  1. [27]
    The evidence of Mr Gordon Murray, a Correctional Supervisor with the Department was as follows:

"[Q:] Now, going down through those rationale for objecting to the roster, you've got at number 1 for a 28 and a half per cent loss in aggregated shift allowance.  There's nothing on that page that indicates any concern with the pattern of the proposed roster, is there?  

  1. [A:]
    So could you just ask that again?
  1. [Q:]
    There was no objection to the pattern of the roster, like how many weeks it was or what the shifts were.  That feedback on that TIL laundry roster is essentially talking about the effects of moving to an 11 hour shift, rather than maintaining the current 12 hours system, isn't that correct?
  1. [A:]
    That's correct.
  1. [Q:]
    And on the next page for the trade instructors caterers, that's the same?  
  1. [A:]
    Yes.
  1. [Q:]
    And there was – no alternate roster was put up by the trade instructors back to QCS that you were aware of?  
  1. [A:]
    No."[4]
  1. [28]
    The objections raised in relation to the 59 rosters have a consistent theme.  Clauses 4.1.5 (b) (iii), (iv) and (v) of the Agreement deal with the consultation process.  It requires, amongst other things, that the Department should "seriously consider" any "real and serious concerns" raised by the Union.  The concerns raised during the consultation period could not be categorised as "real and serious".  As the evidence before the Commission reveals, the concerns did not relate to health and safety or matters that might be regarded as placing an unjust and unreasonable burden on employees.
  1. [29]
    As exhibit RR29 to the affidavit of Randi Rajapakse demonstrates, the main objections to the roster were identified as follows: 

"Our members in the Secure South S2 & S3 work group have considered the proposed roster and reject it on the following grounds:

  1. The 11 hour shift length will impact negatively on the staff work life balance.
  1. The introduction of 11 hour shifts will cause staff to attend work more frequently.
  1. The direct effect of staff attending work more frequently will be an increase in costs associated with travel.
  1. Furthermore, attendance at work more frequently will increase child care costs for staff.
  1. There are no provisions in the current certified agreement or award that specifically addresses pay rates/penalty rates/etc. for 11 hour shifts.
  1. Members have further identified that the pattern of shifts are not optimal and members are open to further discussion."[5]
  1. [30]
    What is apparent from the objections is that issue of the design of the roster and sleep debt was not raised during the consultative period.  It was first raised in the hearing of the matter before the Commission.  It was not an issue which featured in the consultation with the Department.
  1. [31]
    Paragraph 26 of the affidavit of Mr Warwick states that "… the proposed roster by management that was rejected by the majority of staff is poorly designed."[6]
  1. [32]
    In cross-examination Mr Warwick was asked:

"[Q:] Before you move off paragraph 26, you say there, Mr Warwick, you believe that the proposed roster by management was rejected by the majority of staff is poorly designed.  Was that your belief or was that something you were told?

  1. [A:]
    That was something that I - I spoke to staff about and that was only and, again, I'm going about previous rosters, right, where we were actually talking about having eights, nines as I said in the beginning, I haven't seen any of the proposed rosters with regards 11 hour shifts.
  1. [Q:]
    So you haven't seen any of the proposed rosters that have been rejected?  
  1. [A:]
    No.  This is more in tune with the     
  1. [Q:]
    So you're more familiar with your own supervisor roster of the 12 hour shifts?  Plus, also, with regards to some of the other rosters that have been imposed in the past where we've   I think, at Wolston, we went to a cycle roster and then we went to another style roster, and I do know that the hassles pertaining to the fatigue, and that's why I put it down in no     
  1. [Q:]
    And they're   so they're previous rosters?
  1. [A:]
    Yeah.
  1. [Q:]
    Not the ones that are currently before the Commission?
  1. [A:]
    Mmm. 
  1. [Q:]
    Is - is that correct?
  1. [A:]
    Yes."[7]
  1. [33]
    It was submitted by the Union the Department had not demonstrated that the proposed rosters provided sufficient periods of extended days off to enable the employees to address sleep debt and the issue of the consequential cumulative fatigue.
  1. [34]
    As was stated in The Queensland Public Sector Union of Employees v Department of Corrective Services[8], the question to be considered is whether or not the Union has raised "a serious and substantial basis for rejecting the proposal"[9]. 
  1. [35]
    The rejection of the rosters is said to be on the basis that the proposal will impact negatively on the employees' lifestyle and family responsibilities.  More particularly, it was said that the proposed rosters were in breach of cl 2.3 of Appendix 2 to the Agreement.  That clause relevantly provides:

 "2.3 Shifts should involve a short cycle with regular rotations."

  1. [36]
    Clause 1.3 of the rostering principles is also relevant.  It provides as follows:

"The Department shall be guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12 Hour Shifts and relevant publications of the Department of Employment and Industrial Relations."

  1. [37]
    The Union submitted that a short cycle cannot be greater than 12 weeks in duration.  No evidence was presented to support the contention.  The Union further submitted that "The purpose of having short cycles that regularly repeat is to enable the shift worker to adapt to a pattern of work and sleep contrary to the natural circadian rhythm.  This enable better sleeping patterns and hence less fatigue."  Again, the Union lead no evidence to support that contention.
  1. [38]
    The evidence before the Commission shows that the Union did not raise any issues regarding the design of the roster ("short cycle" or "regular cycle") at any time during the consultation period.  I also note that the clause has been a feature of agreements since 2004 and it has not been raised by the Union as an issue nor have the parties attempted to define either "short cycle" or "regular cycle".
  1. [39]
    The evidence of Ms McGregor, which I accept, was that the cycles are kept as short as possible, having regard to the operational needs of the particular area.  She said in re-examination:

 "[Q:] So would you regard a 41 week cycle as a short cycle?

  1. [A:]
    I mean, it depends on what you're talking a cycle.  A cycle can be within a 41 weeks, so you can have, say, three cycles of 10 weeks in a 30 week roster, or you could have three six week cycles within - the - our cycles are made up on an operational need.  We can't cut them any shorter based on if I have 2000 operational hours to cover in the area it will come to a certain amount of people, and those people will - that will determine the length of our roster cycle.  So whilst we would keep it as short as possible, it is the roster cycle, the operational needs of that area, that determine how long the roster cycle is."[10]
  1. [40]
    I also accept the evidence of Ms McGregor, that she was conscious of the ACTU Guidelines and mindful of them when developing the new rosters. 
  1. [41]
    It was submitted by the Union that the reduction of the shift from 12 hours to 11 hours will have a "significant negative impact on the balance between their work and family life."  The submission was based, in part, on the basis that a reduced shift will require employees to attend work more frequently and have reduced days leave.
  1. [42]
    By letter dated 27 March 2014, the Department wrote to the Union and made the following concessions:

"QCS therefore concedes:

  1. (a)
    Officers who transition from a 12 hour roster to a combination of 11 and 12 hour shifts such as contained in Attachment 15 of Application B2013/42, will nominally be subject to an additional 9 work attendances per annum;
  1. (b)
    Officers who transition from a 12 hour roster to a pure 11 hour shift roster, such as that contained in Attachment 2 of Application B 2013/42, will nominally be subject to an additional 15 work attendances per annum;
  1. (c)
    Officers who transition from a 12 hour roster to a pure 10 hour shift roster, such as that contained in Attachment 22 of Application B 2013/42, will nominally be subject to an additional 33 work attendances per annum;
  1. (d)
    Officers who transition from a 12 hour roster to a pure 9.5 hour shift roster, such as that contained in Attachment 13 of Application 2013/42, will nominally be subject to an additional 43 work attendances per annum; and
  1. (e)
    Officers who transition from a 12 hour roster to a pure 9 hour shift roster, such as that contained in Attachment 52 of Application B 2013/42, will nominally be subject to an additional 55 work attendances per annum."[11]
  1. [43]
    As the letter of Deputy Commissioner McDermott illustrates, those employees who transition from a 12 hour shift to an 11 hour shift will be required to attend work on an additional 9 occasions per annum.  At the other end of the scale, those who have transitioned to a 9 hour shift will be required to attend on an additional 55 occasions per annum.  In the absence of expert evidence concerning the effects of shift work and sleep debt and restorative sleep it is difficult to accept the Union's submissions.
  1. [44]
    There is no evidence before the Commission to demonstrate that there will be an adverse impact on the sleep patterns of any of the employees who would be subject to the proposed rosters.  Whilst there was ample opportunity for the Union to present evidence to support its contention that employees would suffer sleep debt, no such evidence was adduced.  It is inappropriate to raise in written submissions, references to scientific papers with the expectation that the Commission will analyse and apply them.  That should properly be the subject of expert evidence.
  1. [45]
    I accept that at no time during the consultative period provided for under cl 4.1.5 of the Agreement did the Union raise with the Department any concerns with the proposed rosters regarding sleep debt or restorative sleep.  It was, in my view, incumbent on the Union to raise all issues of concern with the Department as part of the consultative process.  It is the rationale for the inclusion of cl 4.1.5 to give the Department the ability to assess "real and serious concerns" that are raised and to take steps, where appropriate, to address them.  It is not in the best interests of the parties for these issues to be canvassed for the first time during the arbitration of a matter or, worse still, in written submissions. 
  1. [46]
    The Commission, pursuant to s 320 (2) (b) of the Act "may inform itself on a matter it considers appropriate in the exercise of the jurisdiction".  On 6 August 2014, the Commission undertook an inspection of the S6 Unit at the Wolston Correctional Centre and, in particular, to observe the muster and lock away in a 52 bed unit.
  1. [47]
    The evidence before the Commission on the time necessary to undertake the lock away varied widely from a couple of minutes[12] to 40 - 50 minutes[13].
  1. [48]
    From my own observation, the lock away was conducted in an efficient and professional manner and was completed in less than five minutes.  This is notwithstanding that the S6 Unit was housing additional prisoners.
  1. [49]
    The Union contended that daily activities necessary to maintain good order of the correctional facility would be compromised if the shifts were compressed to less than 12 hours.  In particular, activities such as the undertaking of searches, preparation of case notes, monitoring of prisoners, supervising of prisoners during medication distributions and the internal movement of prisoners could not be properly carried out as a consequence of the compressed shift.
  1. [50]
    I accept that the performance of an officer's duties such as lock away, muster, the preparation of a case note are to be performed within the rostered hours.  However, from time to time, the set routine is going to be disrupted by unexpected circumstances.  Should that arise, it becomes a matter for management to address.  Mr  Murray accepted as much in cross-examination:

 "[Q:]… if at the end of the shift, for whatever reason it's occurred during the shift that something hasn't been performed or has to be postponed or whatever, that's an issue really for management to deal with and try and remedy, wouldn't you agree?  

  1. [A:]
    Yes."[14]
  1. [51]
    In my view, the evidence before the Commission does not support the contention that daily activities necessary to maintain good order of the correctional facility would be compromised if the shifts were compressed to less than 12 hours.

 The Union evidence

  1. [52]
    It was submitted by the Department that the affidavits of Clark, Warwick, Murray, McInnes and Stack were not their own.
  1. [53]
    The affidavit evidence of Clark, Warwick, Murray, McInnes and Stack caused me much concern. 
  1. [54]
    In the cross-examination of Stark, the following exchange took place:
  1. [Q:]
    So someone has been able to use the cut and paste with regards to the affidavits that have come down.  Do you know whose - whose was the original statement?
  1. [A:]
    We were talking about the duties that we do and toing and froing about - and I suppose this is how they just - they're all similar, the duties that we do.
  1. [Q:]
    They're not - no, they're not similar, they're right down to the same spelling mistakes?
  1. [A:]
    Yeah, yeah, yeah, that's what I'm saying, but our - our duties are similar.  I mean, what we do and the outcomes are the same so it's just a matter of how it's best worded, I suppose.
  1. [Q:]
    So did you copy somebody else's?
  1. [A:]
    I might have done one or two and someone else might have done one or two.  I'm a little bit vague about how - exactly how it come to be."[15]
  1. [55]
    In Colorado Products (in prov liq)[16] Black J considered circumstances where a "cut and paste" was involved in the preparation of affidavit evidence:

"… It does not seem to me to matter whether the identical passages in Helen's and Kenneth's affidavit evidence was the result of collusion between the witnesses personally or was the result of Helen's adopting evidence that had been copied from Kenneth's affidavit, or Kenneth's adopting evidence that had been copied from Helen's affidavit, since each substantially devalues both witnesses' affidavit evidence where no explanation has been given of what occurred.  It is not possible for the Court to be satisfied in this situation, in my view, that Helen's and Kenneth's evidence reflects a genuine recollection of events…. "[17]

  1. [56]
    In Seamez v McLaughlin[18] Sperling J concluded from the high degree of similarity in content, detail, terminology and sequence between the affidavits of three witnesses that they could not have come into existence without direct or indirect collaboration and observed that:

"[a]cceptance of one of the three accounts of the events ... means not only that the other two are not genuinely recollected, independent accounts.  It also means that the authors of those other accounts have misstated the way in which their respective accounts came into existence, and seriously so.  The credit of the others would then be worthless."[19]

  1. [57]
    Ward J in Celermajer Holdings Pty Ltd v Kopas[20] adopted a similar approach when his Honour wrote:

"… even if there has not been collusion as such between the witnesses, in the sense of changing their evidence to make it fit with that of another, the fact that the affidavits may not contain the actual words of one or other of the deponents devalues their evidence."[21]

  1. [58]
    Section 320(2) of the Act provides that the Commission is not bound by the rules of evidence.  However, as was observed in Barker v Queensland Fire and Rescue Authority[22], "… although the rules of evidence do not bind the Commission, they should generally be followed to ensure fairness and justice are served"[23].  In short, the rules of evidence attempt to ensure that the hearing process is fair for the parties.
  1. [59]
    It is clear that the evidence of Clark, Warwick, Murray, McInnes and Stack was a product of collaboration.
  1. [60]
    The Union, during re-examination of Mr Warwick, attempted to explain the process which was followed in the preparation of the affidavits.  It is apparent that during a meeting at which a number of witnesses attended, extensive use was made of a whiteboard.  The evidence of Mr Warwick was that they "…went through the evidence and put it up on the whiteboard."[24]
  1. [61]
    The Commission was advised during the hearing as follows:

"MR McKAY:For the Commission's convenience, it may be that we can say that the whiteboard was our form of note taking.  We took a photograph of the whiteboard and drafted the affidavit from it, so…"[25]

  1. [62]
    In Macquarie Developments v Forrester[26] Palmer J wrote:

"Clearly, the Defendants' solicitor failed to appreciate that the evidence of each witness must be in the words of that witness and that it is totally destructive of the utility of evidence by affidavit if a solicitor or anyone else attempts to express a witness' evidence in words that are not truly and literally his or her own.

Save in the case of proving formal or non-contentious matters, affidavit evidence of a witness which is in the same words as affidavit evidence of another witness is highly suggestive either of collusion between the witnesses or that the person drafting the affidavit has not used the actual words of one or both the deponents.  Both possibilities seriously prejudice the value of the evidence and Counsel usually attacks the credit of such witnesses, with good reason."[27]

  1. [63]
    Having regard to how the affidavit evidence was prepared, and as the affidavits were in substantially similar terms, I have formed the view that they are the product of collaboration to an extent which must devalue the weight to be given to their evidence.

 Management prerogative

  1. [64]
    It is the Department's contention that it has the right to manage its business by introducing the proposed rosters to deal with the decision to reduce the out of cell time for prisoners from 11 hours to 10 hours per day with the consequential savings of approximately $5.5 million.
  1. [65]
    The Department has a prerogative to manage its business as it considers appropriate. The Commission would not interfere in the right of an employer to manage its own business, unless health and safety issues have arisen or unreasonable and unfair demands have been made on employees.
  1. [66]
    In State of Queensland (Department of Community Safety) v Together Queensland, Industrial Union of Employees[28] the Commission expressed the following view:

"In my view, the Department has the right to manage its business affairs in such a way as it considers appropriate.  The test to be applied is that enunciated by McKenzie P in Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cairns Base Hospital:

'The proper test requires a concession of the right of an employer to manage his business, subject to the safeguard that intervention may occur if the demands made of employees are unjust or unreasonable.'

In addition to the caveat contained in the Federated Clerks' Union Case, cl 4.1.5 of the agreement provides a further fetter on management prerogative by requiring any change in a roster which is rejected by ballot to be subject to review by the Commission.

In Australian Federated Union of Locomotive Enginemen v State Rail Authority of NSW the Full Bench wrote:

'It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from employees something which is unjust or unreasonable.  The test of injustice or unreasonableness would embrace matters of safety and health because a requirement of an employer for an employee to perform work which was unsafe might damage the health of the employee would be both unjust and unreasonable.'"[29] (Citations omitted)

  1. [67]
    It was argued before the Commission that as a consequence of the proposed rosters, the employees affected by the proposed rosters would lose access to an additional weeks' leave and the 28.5% aggregated shift allowance.
  1. [68]
    The additional weeks' leave and the shift allowance are designed to recompense employees for the disabilities and inconveniences associated with shift work.  They are not and should not be considered to part of their normal income or an entitlement.
  1. [69]
    In this regard, I respectfully adopt the reasoning of Commissioner Bloomfield (as his Honour then was) in The Australian Workers' Union of Employees, Queensland and Redcliffe City Council[30].

"Whilst their new duties might not involve access to the same allowances or overtime as that to which they were previously entitled that is but an unfortunate outcome of the Council's decision to redeploy them.  No employee is entitled to regard allowances as part of their ordinary and regular income and nor is overtime.  Such payments are to provide recompense for the disabilities and inconveniences associated with the performance of such work and once the work ceases to be performed, or the disabilities cease to be experienced, the allowances are no longer receivable."[31]

  1. [70]
    I accept that in circumstances where employees are no longer entitled to the Aggregated Shift Allowance, they will be entitled to be paid shift or weekend penalties that applicable to employees rostered on during those periods.

 Conclusions

  1. [71]
    I am satisfied on the evidence before the Commission that the Department has, in all material respects, complied with the process and procedures set out in the Agreement.
  1. [72]
    Applying the test enunciated by McKenzie P in Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cairns Base Hospital[32], the evidence supports the conclusion that the Commission should not interfere in the right of the Department to manage its business.  It cannot be said that the demands made of employees by the Department can be said to be unjust or unreasonable.
  1. [73]
    I have formed the view that the concerns of employees, particularly the lifestyle and family responsibility concerns, will generally be able to be accommodated, although I accept that some form of reorganisation of family life may be necessary.  Accordingly, I am minded to set an implementation date of 1 June 2015 in order to assist employees to make the necessary arrangements to overcome any difficulties.

Orders

  1. [74]
    I make the following orders:
  1. I approve the 59 rosters that went to ballot and as identified as attachments 1 to 59 to the application filed by the Department in the Industrial Registry.
  2. That the rosters not be implemented before 1 June 2015.

Footnotes

[1] The Queensland Public Sector Union of Employees v Department of Corrective Services B1380 of 2003.

[2] Ibid at [123].

[3] Evidence of P Clarke T3-51, Ll. 10-35.

[4] Evidence of G Murray T4-49, Ll 30-40.

[5] RR29 to Affidavit of R. Rajapaske filed 25 June 2014 (Exhibit 1).

[6] Affidavit of W Warwick sworn 14 July 2014 (Exhibit 11).

[7] Evidence of W Warwick T4-20, Ll. 15-35.

[8] The Queensland Public Sector Union of Employees v Department of Corrective Services B1380 of 2003.

[9] Ibid.

[10] Evidence of K McGregor T2-7, Ll. 35-40.

[11] Attachment 3 to Exhibit 3, Affidavit of K McDermott.

[12] Evidence of K McDermott T2-18, L.8.

[13] Evidence of J Stack T3-5, Ll. 7-8.

[14] Evidence of G Murray T4-51, L.25.

[15] Evidence of Stark T3-18, Ll. 15-25.

[16] Colorado Products (in prov liq) [2014] NSWSC 789.

[17] Ibid at [16].

[18]  Seamez v McLaughlin [1999] NSWSC 9.

[19] Ibid at [40].

[20] Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40.

[21] Ibid at [186].

[22] Barker v Queensland Fire and Rescue Authority (2001) 168 QGIG 237.

[23] Ibid at [238].

[24] T4-2 Ll. 38-47, T4-3 Ll. 1-43.

[25] T4-3 Ll. 39-41.

[26] Macquarie Developments v Forrester [2005] NSWSC 674.

[27] Ibid at [89] - [90].

[28] State of Queensland (Department of Community Safety) v Together Queensland, Industrial Union of Employees [2014] QIRC 34.

[29] Ibid.

[30] The Australian Workers’ Union of Employees, Queensland and Redcliffe City Council (No. D292 of 1997).

[31] Ibid.

[32] Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cairns Base Hospital (1995) 150 QGIG 1401.

Close

Editorial Notes

  • Published Case Name:

    The State of Queensland (Queensland Corrective Services) v Together Queensland, Industrial Union of Employees

  • Shortened Case Name:

    The State of Queensland (Queensland Corrective Services) v Together Queensland, Industrial Union of Employees

  • MNC:

    [2015] QIRC 69

  • Court:

    QIRC

  • Judge(s):

    O'Connor DP

  • Date:

    22 Apr 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Barker v Queensland Fire and Rescue Authority (2001) 168 QGIG 237
3 citations
Jump To
Cite 1 - (2001) 168 QGIG 237
Cite 2 - (2001) 168 QGIG 237
Cite 3 - (2001) 168 QGIG 237
Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40
3 citations
Jump To
Cite 1 - [2011] NSWSC 40
Cite 2 - [2011] NSWSC 40
Cite 3 - [2011] NSWSC 40
Colorado Products (in prov liq) [2014] NSWSC 789
3 citations
Jump To
Cite 1 - [2014] NSWSC 789
Cite 2 - [2014] NSWSC 789
Cite 3 - [2014] NSWSC 789
Macquarie Developments v Forrester [2005] NSWSC 674
3 citations
Jump To
Cite 1 - [2005] NSWSC 674
Cite 2 - [2005] NSWSC 674
Cite 3 - [2005] NSWSC 674
Seamez v McLaughlin [1999] NSWSC 9
3 citations
Jump To
Cite 1 - [1999] NSWSC 9
Cite 2 - [1999] NSWSC 9
Cite 3 - [1999] NSWSC 9
State of Queensland (Department of Community Safety) v Together Queensland, Industrial Union of Employees [2014] QIRC 34
2 citations
Jump To
Cite 1 - [2014] QIRC 34
Cite 2 - [2014] QIRC 34
Union of Employees v Cairns Base Hospital (1995) 150 QGIG 1401
2 citations
Jump To
Cite 1 - (1995) 150 QGIG 1401
Cite 2 - (1995) 150 QGIG 1401

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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