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[Extract from Queensland Government Industrial Gazette,

dated 9 December, 2005, Vol. 180, No.19, pages 1037-1045]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 – s. 274 general powers

Department of Corrective Services AND The Queensland Public Sector Union of Employees (No. 2) (B/2005/1183)

VICE PRESIDENT LINNANE 24 November 2005

Application for urgent arbitration seeking a determination regarding the implementation of a rotational roster at the Wolston Correction Centre – Application made pursuant to the “trial” established in the Department of Corrective Services – Correctional Employees Determination 2004 – A new roster proposed by Wolston management requiring all permanent officers to rotate through the correctional centre was voted down at ballot – The Department commenced arbitration seeking a ruling on the roster – An undertaking was given by the Department in relation to training – Family and lifestyle considerations not disadvantaged by proposed roster – Health and safety not compromised by proposed roster – Skills audit to be completed prior to implementation of new roster – Roster to commence 2 January 2006.

DECISION

[1] This is an application by the Department of Corrective Services (Department) for an immediate arbitration of new/flexible shift arrangements or rosters for the Wolston Correctional Centre in accordance with clause 4.1.5(e) of the Department of Corrective Services – Correctional Employees Determination 2004 (Determination). Clause 4.1.5 of the Determination relevantly provides as follows:

“4.1 Rosters

…

4.1.5 New/Flexible shift arrangements.

(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.

(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:

(i)  The Department will put the proposal in writing to the Union.

(ii)  The Department and the Union will meet to discuss the proposal within fourteen (14) days of the proposal being received.

(iii)  The Department will receive a reply from the Union within that fourteen (14) day period.

(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.

(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.

(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.

(d) Timeframes – The ballot for the above purposes will be limited to:

(i)  A seven (7) day period where the change relates to a Correctional Centre as a whole, or a number of Correctional Centres.

(ii)  A four (4) day period where the change relates to a section, or sections, of a Correctional Centre.

(iii)  For the purposes of this clause Correctional Centre shall mean any Centre or workplace where staff covered by this Determination are employed.

(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.”.

[2] The Determination arose out of a decision of a Full Bench of this Commission (Linnane VP, Edwards C and Blades C) in The Queensland Public Sector Union of Employees v Department of Corrective Services (2004) 175 QGIG 1225. In that decision the Full Bench relevantly concluded the following at paragraphs [123] and [124]:

“[123] Rosters: Whilst we acknowledge the difficulties being experienced by the DCS in the area of rostering, the Full Bench is most concerned that the DCS did not, at any time during the currency of the Department of Corrective Services Certified Agreement 2000 refer those difficulties to this Commission for arbitration. The reason for not so referring the matters to arbitration has been said to be the delay in having such matters arbitrated. The ballot process to date has also been responsible for inordinate delays. We propose the following:

(i) in clause 4.1 of the Determination we will include a definition of the term ‘directly affected’ for the purposes of clause 6.2.2 of the Department of Corrective Services Correctional Employees’ Interim Award – State. That definition will reflect the objective and obvious meaning of the term ‘directly affected’ i.e. only those employees rostered to work when the DCS seeks to change the roster are to be entitled to vote on the proposal to change the roster. Given the particular difficulties faced by the DCS in conducting ballots the vote will not include those persons absent on leave at the time the DCS seeks to change the roster;

(ii) in restricting the persons entitled to vote in the secret ballot we anticipate that the time taken for the secret ballot will be considerably reduced. In that regard we are prepared to insert a provision in clause 4.1 of the Determination which would place a limit on the time taken for secret ballots under clause 6.2.2 of the Award to a period of seven (7) days where the change relates to a Correctional Centre as a whole or a number of Correctional Centres. Where the change relates to a section or sections of a Correctional Centre then the ballot should be concluded within four (4) days. It is the responses received within those time frames that will determine whether the ‘written consent of greater than 50% of Employees directly affected’ has been achieved;

(iii) we will also include in clause 4.1 of the determination a definition of ‘new/flexible shift arrangements’ for the purpose of clause 6.2.2 of the Award. In our view it should only be where the ‘new/flexible shift arrangements’ involve a major or substantial change to the working arrangements that the ‘written consent of greater than 50% of Employees directly affected’ will be required;

(iv) clause 6.2.1 of the Award currently provides that the roster established by DCS be in consultation with the QPSU. We expect that if ‘new/flexible shift arrangements’ are to be proposed by DCS, that consultation with the QPSU occur prior to any vote of ‘employees directly affected’ occurring. Such proposal should be in writing to the QPSU. There would be an expectation that the DCS and the QPSU would meet and discuss the proposal within 14 days of the proposal being received and that a response by the QPSU, in writing, be received by the DCS within a 14 day period. Where the QPSU raises real and serious concerns with the proposal we would expect the DCS to seriously consider those concerns prior to referring the proposal to ballot. Where the DCS changes its proposal as a result of consultation with the QPSU, we do not expect that the amended proposal needs to be further discussed with the QPSU prior to it being put to ballot. If either party wishes to utilise the dispute settlement procedure in the Award for the assistance of the Commission in conciliation, it may do so within that 14 day period; and

(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.

[124] We envisage the urgent arbitration process to be expeditious and of short duration. We propose a trial of the proposal that the Commission urgently arbitrate such matters. The trial period would be the nominal period of the determinationWe propose that there be a review and an evaluation of rostering practices and the process outlined above approximately two years and six months into the life of the determination.”.

[3] It is in that context that the Department have sought an urgent arbitration of this matter. It was anticipated that the proposed rosters would be implemented effective 28 November 2005. The matter was heard 22 November 2005 and an urgent decision is sought by the Department.

History

[4] Following the decision of the Full Bench on 1 April 2004 and the release of the Determination on 15 May 2004 the Department decided to clearly establish the operational requirements of each of its correctional facilities and to develop a consistent approach throughout such facilities to rostering practices. In order to achieve this, the Department embarked on a state-wide review process. The Department developed a set of Guiding Principles to clearly establish the operational and rostering requirements that would need to be met at any correctional centre.

[5] Whilst recognising that the operational requirements were a matter for the Department to determine, the Department undertook a consultative process with the Queensland Public Sector Union of Employees (QPSU) in establishing those operational requirements. Essentially, the principles were statements derived from the Determination and the Department of Corrective Services – Guidelines for Rostering Shift Work (Rostering Guidelines) which is Schedule 2 to the Determination.

[6] Those Guiding Principles were forwarded to the QPSU under cover of a letter from the Department dated 24 May 2005. In that correspondence the Department advised the QPSU that it was about to commence a state-wide review of rosters in accordance with the Determination. A Joint Consultative Committee was established comprising both QPSU and Departmental representatives as a means of keeping the QPSU informed of the roster review process. The Department then established a roster review project team (project team).

[7] That Joint Consultative Committee first met on 20 June 2005 where a copy of the Guiding Principles was tabled. The QPSU representatives at that meeting agreed that the Guiding Principles accurately reflected the provisions of the Determination.

[8] The project team conducted a state-wide visit to correctional centres. That project team was comprised of Lisa Clearly – Principal Consultant with the Department of Corrective Services, Karen McNab – Human Resource Manager, Maryborough Correctional Centre and Jim Searoth – an external consultant from Shiftwork Solutions. The project team met with management and rostering representatives at each correctional centre to discuss the operational requirements and the current workforce and rostering processes in each centre.

[9] The project team then developed two documents – the Addendum to DCS Shiftwork Rostering Guidelines (Addendum) and the DCS Workforce and Roster Management Guidelines (Workforce and Roster Management Guidelines). The Addendum was developed to address the specific shiftwork and rostering matters described at Parts 4 and 6 of the Determination, whilst the Workforce and Roster Management Guidelines were developed as a management tool to ensure a fair and consistent state-wide approach to roster administration was achieved. Together these documents formed the Department’s proposal for a new roster model.

[10] According to the evidence of Ms Cleary, the Addendum outlined the requirements for the main roster pool, reserve/relief rosters, specialist rosters and roster design. Further the Addendum provided for the posts/work areas which were to be included in the main roster, how the roster was to be grouped and detailed that a minimum number of main rosters were preferred. The Addendum required that individuals in the main roster pool were to be rotated through all posts within their assigned roster and through all rosters in the main roster pool. Further it detailed that reserve or relief rosters were to contain all of the spare and reserve shifts, that such shifts were to be deployed to meet the operational requirements as determined by the Department and that vacancies on the reserve roster would not be replaced. The Addendum further provided that under roster design the rostered shift allocation would be done in accordance with existing Departmental shiftwork Rostering Guidelines and the provisions of the Addendum. The Addendum further required that the shift allocation and design of new roster patterns must be on the basis of short cycles with regular rotations.