WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES

APPLICANT

-v-

Western Australian Prison Officers' Union of Workers

RESPONDENT

CORAM Commissioner S J Kenner

HEARD Thursday, 10 July 2008, Thursday, 17 July 2008, Tuesday, 22 July 2008, Thursday, 31 July 2008, Wednesday, 27 August 2008, FURTHER WRITTEN SUBMISSIONS 29 AUGUST 2008, 3 SEPTEMBER 2008

DELIVERED friday, 12 September 2008

FILE NO. C 23 OF 2008

CITATION NO. 2008 WAIRC 01395

Catchwords Industrial law – Dispute in relation to staffing shortages – Claim for interim order – Relevant principles applied – Interim order to issue – Industrial Relations Act 1979 ss 44(1), 44 (6)(ba).

Result Interim order to issue

Representation 

Applicant Ms T Borwick

Respondent Mr J Welch

Reasons for Decision

Background to Application

1. The background to the present application is set out in earlier Recommendations, Directions and Statements of the Commission dated 10 July and 1 August 2008 respectively and I need not repeat it in any detail.  In short, the parties to the present proceedings are in dispute in relation to staff shortages in respect of prison officers employed throughout metropolitan and regional prisons in the State.  To compensate for the present shortages, prison officers are increasingly filling vacant shifts on overtime. The dispute has involved the imposition of overtime bans by the respondent. Additionally and exacerbating the current dispute, is a prisoner population within metropolitan and regional prisons throughout the State, in excess of the design capacity of the various facilities.

2. As to the latter, it is common ground that the design bed capacity of all prisons throughout the State is 2,641.  As at 4 August 2008, the total prison muster was some 3,076 prisoners exceeding the design bed capacity of the prison facilities.  Plans are also afoot to accommodate a substantially higher prisoner population still.

Staffing Issues-Brief History

3. This matter of staffing levels has some history. In short as a consequence of an agreement reached in 2006 between the parties as the result of proceedings before the Commission in application C 153 of 2004 agreed approved staffing levels were established for each prison (“the 2006 Agreement”).  These proceedings followed a review conducted jointly between the parties of prison officer staffing levels in 2005.  According to material provided in submissions by the applicant, it is said that the approved staffing level is some 1,585 prison officers.  It is also common ground however, that not all positions from the 2006 Agreement are presently funded.  According to the applicant’s submissions, from the agreed level, there are presently some 1,440 available prison officers, giving rise to a shortfall of approximately 145 officers.

4. There was some dispute as to these figures.  According to the respondent’s material in its submissions, as to both approved and available prison officer numbers, account needs to be taken of local staffing agreements to cover the current muster levels, and actual staff numbers having regard to absences on secondments and sickness etc.  Using the latter analysis, according to the respondent’s material, there is a shortfall of approximately 182 prison officers in total.  When this analysis is further refined to include peak muster requirements embedded in future projections by the applicant as to prisoner numbers, based on a projection of some 4,100 in the prisoner population, the shortfall according to the respondent, is even greater at approximately 271 prison officers.

5. Whichever analysis one accepts, it is clear that the prison system in this State is under some strain, in terms of both prison musters significantly exceeding design bed capacity and prison officer staffing levels significantly below those required to fully staff prisons to enable them to operate at an optimum level.

6. It is also common ground from the submissions of the parties, that the issue of staffing shortages in the context of the current dispute has been an ongoing one.  Most recently, as far back as early 2007, the respondent raised as an issue with the applicant, its concerns as to staffing shortages and prison muster numbers.

Interim Order

7. Following several compulsory conferences under s 44 of the Industrial Relations Act 1979 (“the Act”) and as a means of ameliorating the current pressures being experienced by prison officers, the respondent seeks an interim order of the Commission to introduce a trial of public sector overtime rates, that being time and a half for the first three hours and double time thereafter, for prison officers employed under the Prison Officers’ Award (“the Award”) and the Department of Corrective Services Enterprise Agreement AG 58 of 2007 (“the Agreement”).

8. The interim order sought by the respondent is for the purposes of creating a greater incentive for prison officers to work additional overtime, in particular, that group of prison officers presently working little or none, so as to more evenly spread the overtime load to reduce staffing pressures generally.  It is proposed that during the course of the trial, suggested over a three month period, which corresponds to two roster cycles, that the parties also are required to collect data in relation to the number of overtime shifts required, the number of overtime shifts worked, and the number of overtime shifts being performed by individual officers.

9. It is emphasised by the respondent that what is sought is only an interim measure, with the ultimate resolution of the issue being the employment of further prison officers to fully staff, at least as far as practicable, metropolitan and regional prisons.

10. It is also part of the interim order sought, that the additional overtime penalty rates apply from the time of the notification of the dispute to the Commission from on or about 10 July 2008 to the date of the implementation of any trial, if so ordered.

11. The interim order is opposed by the applicant.

Contentions of the Parties

12. The applicant and the respondent made both helpful written and oral submissions in support of their positions concerning the respondent’s claim.  What follows is a brief outline of the submissions.

13. The respondent referred to the history of disputation between the parties concerning staffing levels in prisons throughout the State, as noted above.  It was the submission of the respondent that these staffing shortages are now at a crisis point, such that prison officers are under extreme pressure on a regular basis.  The issue is becoming a matter of safety and health for the officers concerned.  Whilst the respondent acknowledges recent initiatives undertaken by the applicant to increase recruitment as being welcome, given the timeframes involved in these processes, other urgent action is necessary.

14. In terms of the criterion for the implementation of any enhanced overtime benefits, the respondent has proposed in its negotiations with the applicant, and in these proceedings, “trigger points”.  It is suggested that in circumstances where staffing levels fall five per cent or more below the approved number and the prison muster is five per cent or more above the design capacity of prisons, then the additional benefits should apply.  It is said that any trial should be conducted State wide, and not be targeted to any particular prison(s).  According to the respondent, to do so, would encourage a distortion in movement of prison officers between prisons, to those where additional benefits may be available.

15. In terms of the powers of the Commission under the Act, the respondent submits that the Commission has ample power to deal with this matter pursuant to s 44(6)(ba) of the Act.  It is also said that there has been deterioration in industrial relations between the parties in relation to this issue.

16. Furthermore, there is no inhibition to the determination of the present claim, under the “No Further Claims” provision of the Agreement in cl 7.0.  It is said that cl 7.2, the prohibition on claims, is restricted to matters contained in the Agreement itself.  The entitlement to overtime is governed by cl 13 of the Award. Additionally, in response to a proposition put by the applicant, the respondent says that the issue is a pressing matter now and simply cannot be deferred until the next enterprise bargaining negotiations to take place in 2010, on the expiry of the Agreement.  Any invocation by the applicant of its Award right to compulsorily roster overtime would, on the respondent’s submission, be counterproductive and destroy any residual goodwill remaining between prison officers and management.

17. There were a number of submissions advanced by the applicant in opposition to the respondent’s claim for an interim order.

18. It was submitted as an overall proposition, that the respondent’s claim in the present circumstances is merely a restatement of a claim advanced by it during the course of the negotiations for the Agreement to improve overtime benefits for prison officers, not agreed to by the applicant.  In this regard, it was noted that a number of enhanced benefits were provided to prison officers culminating in the Agreement, including some “front end loading” of salary increases, to acknowledge the high prison musters throughout the State.  In view of this, the applicant says that for the respondent to pursue its claim outside of the renewal of the Agreement through the bargaining process in 2010 would be to threaten the integrity of the enterprise bargaining process.

19. Furthermore, if any interim order was made, it is submitted that it should not be on a State wide basis rather, it should be targeted to particular prisons that have low uptakes of overtime or alternatively, different criteria be developed by agreement between the parties.

20. As to the implications of any interim order, the applicant submitted that a significant financial cost would be imposed over a three month trial, as set out in various annexures attached to its written submissions.  Moreover, taken on a State wide basis, current overtime analysis calculations reveal that taking as a benchmark of “reasonable overtime”, one overtime shift in a three weekly period, there is presently 46.5 per cent of staff in prisons working less than this threshold.  The other 53.5 per cent of staff are exceeding that threshold and in some cases, very significantly so.

21. Additionally, the applicant submitted that a number of other measures are and can be taken to alleviate the present staffing shortages.  Mention has already been made of increased activity in relation to recruitment both domestically and overseas, which is continuing.  Other initiatives include reviewing existing secondments to ascertain availability to return to substantive positions; streamlining entry level training programs; examining prison routines to deploy staff more effectively; the allocation of existing prison beds to the private Acacia prison later in 2008 and early 2009; reliance upon cl 13 of the Award to compulsorily roster overtime; greater use of ten hour shifts and other initiatives.

22. The applicant’s opposition to any adjustment to the overtime rates on a trial basis also extends to any concept of a flat payment regime to apply for overtime shifts, generally on the same basis as identified above in its general submissions.  As an alternative however, and in recognition of the need to provide some incentive to those prison officers presently working no or small amounts of overtime to work some or more respectively, thereby increasing the spread of overtime and reducing the burden on other officers, a form of bonus payment could be considered to provide such an incentive.

23. It is suggested that there are a number of advantages of this approach including targeting the particular prison officer groups presently working no or little overtime to encourage them to do more; providing a tangible reward to those prison officers; involving less cost as it will not be “across the board”; and it will avoid the need for the applicant to consider compulsory rostered overtime under cl 13 of the Award, which has not been invoked in the past in other acute circumstances.

24. In connection with this concept, the applicant proposes that there be an agreed number of overtime shifts in any roster period, to achieve a bonus entitlement.  In conjunction with such a bonus scheme, the applicant also proposes a joint survey between it and the respondent, to attempt to ascertain reasons why some prison officers are not working any or are working little overtime presently.

25. Whilst the concept of a bonus type of scheme is acknowledged by the respondent, it is submitted that such a scheme would be problematic.  First, it is said that often overtime is not worked systematically and there may be substantial time intervals between overtime periods, thus negating the benefits of a bonus based on a “reasonable overtime” according to a set period of shifts.  Secondly, it is submitted that it may even act as a disincentive, as prison officers, after working the required overtime shifts to qualify for a bonus, may do no more.

Consideration

26. It is clear from the materials before the Commission, that staff shortages of prison officers throughout prisons in the State has been an ongoing issue, regardless of the cause.  It appears common ground that at least to date recruitment initiatives have only just kept pace with the attrition rate of prison officers leaving the prison system.  Recent initiatives by the applicant to bolster recruitment overseas and through other measures are to be applauded.  However, inevitably, there are time lags in these processes, compounded by a very competitive local labour market.

27. Furthermore, it also appears common ground, that normal prison routines, given the present staff shortages, are only being able to be maintained through prison officers working overtime shifts, in some cases, excessive amounts of overtime, often through the goodwill of the officers concerned.  The maintenance of prison routines is of course, extremely important.  This is constituted by the four “cornerstones” of prison routine management, custody and containment; care and well being; reparation; rehabilitation and reintegration.  As custody and containment is the principal obligation, staff shortages through vacant shifts can mean the other aspects of prison routine may be compromised, potentially impacting on parole release programmes and potentially, in the longer term, recidivism rates.

28. I turn firstly to consider whether cl 7.0 – No Further Claims of the Agreement presents a barrier to the interim relief sought.  In my opinion, it does not.  It is plain from the ordinary and natural meaning of the language used in cl 7.0 of the Agreement, in particular cl 7.2, that the no further claims provision is a prohibition on the parties to the Agreement pursuing any claims in relation to matters contained in the Agreement.  Furthermore, by cl 7.3, nothing in cl 7.0 of the Agreement precludes the respondent from bringing an application to vary the Award, in accordance with the Commission’s State Wage Fixing Principles.

29. It is beyond doubt that the question of overtime payments is a matter prescribed by the Award in cl 13.  Payments for additional hours by way of overtime or otherwise, are not a matter dealt with in the Agreement.  Whilst Part 4 of the Agreement deals with allowances of various kinds, none of the allowances there prescribed relate to additional payments for time worked outside of ordinary hours.

30. As a matter of industrial principle, overtime is one of long standing.  It is inherently linked to hours of work and particularly “ordinary hours”.  Overtime, that is hours worked in excess of ordinary hours in relation to which additional payments are payable, has two purposes.  The first purpose is to provide a greater reward to employees working additional hours by way of an incentive.  The second purpose, also by way of the payment of a higher rate, is to “penalise” employers for requiring employees to work in some circumstances, what may be regarded as unsociable hours.  This is the reason for the well known description in industrial parlance of “penalty” rates as being applicable for such additional work.  Thus overtime or “penalty” rates have a dual character.

31. In the present context, cl 13 of the Award prescribes arrangements for out of hours work.  By cl 13.2 it is provided that all prison officers are required to be available to work “reasonable” out of hours work in addition to their rostered hours of duty.  It is clear from the terms of cl 13.2 as a whole, that it is the intention that such out of hours work will be performed as far as possible, by volunteers.  It is only in circumstances where it is necessary to maintain prison functions, that by cl 13.2(1), a Superintendent may roster prison officers for out of hours work.  All hours so worked, whether by volunteers or on a rostered basis, are, by cl 13.4(1) to be paid at time and one half of a prison officer’s annualised rate of pay.  The only exception to this is where there is the declaration of “Major Emergency Duty” for the purposes of cl 13.4(2) of the Award, where the rate of payment is double time.

32. I have already noted above, and it is common ground, that even in prior cases of emergencies in the prison system in this State, the applicant and its predecessor organisations have not sought to invoke the power to forcibly roster prison officers to work overtime pursuant to clause 13.2(1).  It is contended by the respondent that for the applicant to now revert to such a rostering system would destroy any goodwill that presently exists among prison officers who are, according to the respondent, making themselves available voluntarily, in order that normal prison routines can be maintained.

33. It must be emphasised that the terms of the Award referred to confer a right on the employer to roster employees for overtime when there are insufficient volunteers to enable a Superintendent to maintain necessary routine prison functions. The applicant does not need the Commission’s permission to do so.  However, the fact that the applicant has never, according to the material before the Commission, sought to invoke this provision of the Award, even in cases of prior emergencies in prisons, is a matter of some significance.  Whilst I would not go so far as to say that the applicant’s decision not to invoke this provision in the past now constitutes an estoppel or waiver of an existing legal right, precluding its exercise in current circumstances, or even an established custom, practice and usage which would preclude its exercise now, it is a matter which is not insignificant to take into account.

34. For the purposes of cl 13.2 of the Award, what is “reasonable” overtime will be a matter of fact, depending upon the circumstances of both the employee and the employer: Metal Trades Employers’ Association v Boilermakers’ Society of Australia (1960) 4 FLR 333 per Dunphy J at 334.  Additionally, there have been test cases brought in both the Commonwealth and New South Wales jurisdictions in relation to reasonable hours of work and reasonable overtime:  Working Hours Case (2002) 52 AILR 4-648; Re State Working Hours Case 2003 (2003) 53 AILR 200-016.

35. In both of these cases, Commonwealth and New South Wales awards were varied to introduce an award provision dealing with the working of reasonable overtime and overtime rates.  In accordance with these provisions, whether a request to work overtime is unreasonable or otherwise, falls to be determined having regard to a number of factors including the employee’s health and safety; the employee’s personal circumstances including family responsibilities; the needs of the workplace or enterprise; the amount of notice given by the employer to the employee to work overtime and any other relevant considerations.

36. Additionally, these principles are now incorporated into s 226 of the Workplace Relations Act 1996 (Cth) in Part 7 – Australian Fair Pay and Conditions Standards.

37. Given that the question of overtime is a long standing and settled matter of industrial principle, and given that the Award presently provides the current formula for overtime rates for prison officers throughout the State, I am reluctant to interfere with that matter of significant industrial principle, for the purposes of an interim order to implement a trial arrangement.  In my view, if there is to be an adjustment to the overtime formula as prescribed by the Award, then that is a matter best progressed by way of an application to vary the Award pursuant to s 40 of the Act, which application, as cl 7.3 of the Agreement contemplates, would need to be considered in light of its merits and the application of the State Wage Fixing Principles.  Alternatively, it could be progressed in the next round of negotiations for the renewal of the Agreement.

38. However, in the context of the current dispute, to prevent any further deterioration of industrial relations between the parties, and having regard to all of the material before me as contained in the submissions of the parties, the current arrangements cannot continue. Prisons throughout the State are in some cases, significantly understaffed.  Staff shortages are being made up by the working of overtime, in some cases, excessive amounts.  This is placing undue pressure on prison officers to maintain normal prison routines as far as possible.

39. In all of the circumstances I consider that an additional incentive to work overtime shifts should be implemented on a trial basis for a period of three months. The Commission in determining this matter is not limited to the specific claim made or to the subject matter of the claim: s 26(2) Act.  The incentive will be a flat per shift payment.  The payment will be an amount of $129.00 per twelve hour shift.  It will be payable on overtime shifts required to be filled by the applicant.  For those prison officers who may work eight or 10 hour shifts, a pro rata amount should be paid.

40. The rate has been struck as an average rate used by the applicant for the purposes of its costing of the respondent’s claim and is based on the difference between overtime at time and one half for all hours worked and overtime at time and one half for the first three hours and double time thereafter, for the Prison Officer Shift 4-5 years classification, a predominant classification level within the prison system.  In my view this represents reasonable additional compensation for an overtime shift.  The focus needs to be on those groups of prison officers working the least amount of overtime, based upon the material before the Commission.

41. I do not consider that the trial arrangement should operate on a State wide basis.  Rather any trigger points should operate at an individual prison level.  This will need to be managed by the parties.  There will be granted a liberty to apply in the interim order if this issue or any other causes any difficulties during the course of the trial

42. Whilst the Commission recognises that this interim order will impose additional costs on the applicant for overtime, it is also the case that the substitution cost of employing additional prison officers, including on-costs, to cover vacant shifts, would be very substantial.

43. I do not propose to deal with “trigger points” for the purposes of any trial or the commencement date.  That is a matter which I will leave to the parties to discuss amongst themselves.  Having said that, I do not consider that the respondent’s proposed “trigger points” are necessarily inappropriate.  However, I do not have enough before me to determine finally what criteria should apply.  I direct the parties to confer on these matters within seven days of the date of this decision.  If the parties are unable to agree on these matters they will be determined by the Commission.  Once either agreed or as determined, an interim order will issue.

44. I also wish to emphasise that an interim order can only be an interim measure to assist in the resolution of the dispute, pending further conciliation or arbitration.  By its nature, interim relief is not to be regarded as the foundation for a more permanent arrangement and any expectations in that regard will need to be addressed by the parties.  The objective must be to increase staffing levels to that agreed as necessary for the optimum operation of the State’s prisons.

45. The order will operate for a period of three months from the agreed date of commencement. I am not persuaded that any retrospectivity should apply. The parties will also need to collect and consider data on shifts worked and by what groups, and measure any increase in the rate of take up of the target groups, to determine if the trial is to be regarded as successful and by what measure success is to be determined.  Additionally, the applicant’s proposal for a joint survey of prison officers in relation to the working of overtime is a worthy one and it should be considered by the parties.