PRISON OFFICERS' AWARD

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Western Australian prison officers' Union of Workers

APPLICANT

-v-

The Minister For Corrective Services

RESPONDENT

CORAM Chief Commissioner A R Beech

HEARD 1 DECEMBER 2009

DELIVERED 29 DECEMBER 2009

FILE NO. APPL 33 OF 2009

CITATION NO. 2009 WAIRC 01361

CatchWords Award - Award variation – Overtime incentive payment - Principle 7 Work Value Changes – Principle 10 Making or Varying an Award or issuing an Order which has the effect of varying wages or conditions above or below the award minimum conditions – Enterpise Bargaining – Annualised salary - Industrial Relations Act 1979 (WA) s 40 – Prisons Act 1981 (WA) s 7 - Statement of Principles 2009

Result Award amended for limited term

Representation 

Applicant Mr J. Welch

Respondent Mr P. Budd

Intervener  Mr R. Andretich (of Counsel) on behalf of the Hon. Minister for Commerce

Reasons for Decision

1          This is an application by the WA Prison Officers Union to amend Clause 13 - Out of Hours Work of the Prison Officers Award to provide a higher rate of payment when additional hours are worked as a result of the prison population and staffing being at high and low levels respectively.  Clause 13.1 defines “out of hours work” as all work performed at the direction of the Superintendent or a duly authorised officer outside the officer’s rostered hours of duty.  If granted, the amendment would insert into clause 13.1 a definition of “Critical Muster”, being a circumstance where:

(a) The prison population in any prison exceeds by 5% or more the prisoner population level agreed between the WAPOU and the Department for a period of 3 calendar days; and 

(b) The level of actual staffing available to work (by having regard to absences for secondments, workers compensation, sickness, and all other leave categories) for the relevant prison is 5% or more below the agreed establishment level of staff as agreed between the WAPOU and the Department for a period of 3 calendar days.

2          Clause 13.4(1) provides that the payment to be made for out of hours work is time and one-half of the prison officer’s annualised rate of pay for all excess time worked.  If the amendment is granted then where a critical muster exists payment for out of hours work will also include an overtime incentive payment of $143 to be paid in addition to the time and one-half of the prison officer’s annualised rate of pay.   

3          The Hon Minister for Corrective Services opposes the amendment.  The Hon Minister for Commerce, who intervened on behalf of the State, also opposes the amendment.

 Background

4         The dispute between the parties regarding shortages of Prison Officers employed throughout metropolitan and regional prisons in the State is of reasonably long standing.  Shortages have resulted in Prison Officers increasingly filling vacant shifts by working overtime, defined in the award as “out of hours work”.  The issue is exacerbated by the prison population within metropolitan and regional prisons (the muster) being in excess of the design capacity of the various facilities.  The dispute resulted in the imposition of overtime bans by the union in July 2008 and came before the Commission constituted by Kenner C (matter C23 of 2008). 

5         Following several compulsory conferences under s 44 of the Act, the union sought an interim order for the introduction of a trial of the payment of public sector overtime rates, being time and a half for the first three hours and double time thereafter.  This was sought to create a greater incentive for Prison Officers to work overtime, in particular the group of Prison Officers presently working little or no overtime, so as to more evenly spread the overtime load and thus reduce the pressure on those who had been regularly working overtime. 

6         Kenner C ordered that a trial of the payment of public sector overtime rates be held for a three month period between 1 October and 31 December 2008.  This resulted in the payment to Prison Officers who worked overtime of an incentive payment of $129 in addition to the time and one-half of the prison officer’s annualised rate of pay.  His reasons for decision (2008 WAIRC 01395; 12 September 2008) and several documents used in the hearing before him were incorporated into these proceedings.  I gratefully adopt paragraphs [1] – [25] of those reasons for decision as containing background relevant to this application to amend the award.  

7         Although the Minister objected to the trial, in accordance with the decision and direction of Kenner C, the Minister and the union agreed that the trigger for the payment would be where the actual muster level is 5% or greater than the modified design capacity of the prison and where a shortfall of 5% or greater exists in the agreed staffing levels to deal with that actual muster (2008 WAIRC 01461; 1 October 2008, Schedule A).  During the trial, the Minister, through the Department of Corrective Services, kept data which was subsequently analysed by both the Department and the union.  Each drew different conclusions from the data regarding the success or otherwise of the trial from their respective points of view. 

 The Union’s Submission

8         The union presented a comprehensive written submission.  In summary, the union submits that there is a recurrent and serious problem with the management of prisoner musters significantly in excess of the design capacity of prisons or the levels agreed between the union and the Department in a 2006 staffing agreement.  In combination with this, there have been recurrent difficulties with the Department’s ability to provide the levels of staffing that have been agreed locally and centrally to ensure the safe running of the prisons.  These agreements have allowed the prison population to grow dramatically with very little disputation between the parties.  However actually getting the staff to carry out the agreed roles, and to be available to do the work that has been agreed between the parties as being necessary on a daily basis, has in many cases proven to be a much greater problem than actually getting the agreements themselves. 

9         The union says that its proposal to amend the award is the only proven method of dealing with the problem, that this is evidenced by the results of the trial and that other alternatives for the management of the problem, in the union’s view, have not worked and will not work. 

10      The union submits that working overtime in these conditions is harder, more intense and more stressful.  The union also submits that it impacts upon the physical working environment and that security issues are increased.  The union states that the amendment follows a similar approach to the already existing concept in Clause 13 of paying a higher rate for overtime worked during Major Emergency Duty which is a situation when there is an absolute need for further staff.  Moreover, the wording of the amendment means that if the Minister provides the staff required, the penalty will not be payable.

11      The union called evidence from its Senior Industrial Officer Tony Clark, from Mr Walsh who is a Senior Officer from the Greenough Regional Prison and from Mr Smith who is a Senior Officer at Hakea.  In addition, the union tendered documentary evidence in support of its claim including the overtime summary for Hakea, Casuarina and Bandyup Prisons for the period 1 June to 31 August 2009 (WAPOU 5). 

 The Minister’s Position

12      The Minister for Corrections also presented a comprehensive written submission.  In outline, the Minister opposes the application in its entirety.  The Minister considers it is more appropriate to consider and discuss the matter in the next Enterprise Bargaining Agreement (EBA) negotiations which are scheduled to commence in a few weeks in 2010 and is concerned that the application appears to be trying to circumvent that bargaining process.  The Department of Corrections and the Minister are confident that a combination of recruitment and management initiatives, along with more effective deployment of staff via the available processes, will address the overtime issue and submit that “incentivisation” through enhanced overtime rates will not spread the load across the prisoner officer body and should not be considered until all other options are fully explored and executed.

13      The Minister’s submission outlines a number of efficiencies as alternatives to increasing penalty rates as sought by the union.  Those alternatives include but are not limited to:

• reviewing shift patterns in hours of duty such as a greater use of alternative shifts as provided for in subclause 12.2 of the Award;

• more efficient and flexible deployment of Prison Officers;

• more effective management of the prison muster by reviewing prison routines to take pressure off prisons with overtime issues;

• a more effective use of non-Prison Officer occupational groups;

• placement of the majority of Prison Officer trainees from new schools into the prisons under pressure;

• a recall of Prison Officers from secondments in public sector positions and secondments to other public sector agencies; and

• a realisation of the imprisonment reduction strategies and of the requirement of Prison Officers to make themselves available to work reasonable overtime as prescribed in subclause 13.2 of the Award. 

14      The Commission was informed that $11.25 million in additional funds have been allocated to specifically provide for an increase in recruitment of Prison Officers.  The Minister for Corrective Services in May of this year outlined a planned $12 million 600-bed capital works program for the short-term increase in prisoner accommodation and the State Government has announced its intention to spend $655 million on a total infrastructure programme.

15      The Minister submitted that under s 7 of the Prisons Act 1981 (WA), the Chief Executive Officer of the Department is responsible for the management, control and security of all prisons and it is for the CEO, using his managerial prerogative, to address the issue.  Further, the Minister submits that the claim in this matter does not comply with the Commission’s State Wage Principles; in the Minister’s view the application and the evidence show that Prison Officers are busier, not that the value of their work has significantly changed warranting payment of an additional allowance. 

16      The Minister sought to remind the Commission that overtime for Prison Officers is already paid on an annualised salary, which contains shift penalties; this means that the payment sought by the union will mean “a penalty (the bonus payment) is paid on a penalty (being overtime) and a penalty (being shift)” (transcript p 98) and “it is a well‑accepted industrial principle that overtime penalties are paid on a base rate of pay”.  

17      The Minister called evidence from Ms Skowron who is the Manager, Recruiting of the Department and from Mr Giles, the Deputy Commissioner for the Adult Custodial Division of the Department.  A witness statement from Mr Newell, Workforce Planner for the Department was also tendered.  In addition, the Minister tendered documentary evidence in support of his position. 

 The Intervention of the Minister for Commerce

18      The Minister for Commerce states that the trial ordered by the Commission had been seen by the union as an interim arrangement.  This also was the understanding of Kenner C and in the opinion of the Minister for Commerce the Commission had recognised that the trial should not be the foundation for a more permanent arrangement. 

19      Further, the use of overtime to meet minimum or agreed staffing levels is undesirable from both a policy point of view and an occupational safety and health point of view. 
This was accepted by both parties in C23 of 2008, yet the union puts it forward as the only reasonable and effective measure to meet the problem.  Granting the amendment will entrench it for the long term and make it more desirable to work in a way which is occupationally undesirable.  The Minister for Commerce submits by way of contrast, that the evidence from the Minister for Corrective Services shows that the efforts of the Department have been extremely productive in reducing the deficiency in the number of Prison Officers compared to the required staffing levels.  The long term solution to the problem lies in the employment of sufficient numbers of Prison Officers to meet required staffing levels.  

20      The Minister for Commerce emphasises that Clause 13.2 of the Award provides that all Prison Officers are required to be available to work reasonable out of hours work in addition to their rostered duty and that it is inappropriate to align the current situation with the additional overtime provisions payable at a time of Major Emergency Duty. 

21      The Minister for Commerce also emphasises that the circumstances in which an overtime rate of more than time and one-half will be paid were considered and dealt with within the Award and more recently in the parties’ 2007 EBA (AG 58 of 2007; 2007 WAIRC 01104).  EBAs have become the vehicle by which conditions of employment are regulated and changed.  There are restrictions in s 43 of the Act on the power of the Commission to vary an EBA and to grant the application to amend the Award would be in substance to vary the EBA.  This is not permitted by either the terms of the EBA or by the Act.  As a matter of policy, the award should not be amended in these circumstances.  

22      The Minister for Commerce sees a potential for flow-on of this application to other sectors of Government; it is not generally the case that the rate of remuneration increases when there are staff deficiencies and the workload reaches a certain point.  The amendment will introduce a new cost in difficult times for which provision has not been made.  The overtime rate is paid on top of an annualised salary which includes a component in lieu of shift penalty payments, accrued days off, public holidays and overtime.  The Minister for Commerce also submits that the variation sought must conform to the State Wage principles and there must be evidence of a change in the value of work; in the submission of the Minister for Commerce, there has not been evidence of such a change. 

CONSIDERATION OF THE ISSUES

Enterprise Bargaining and the State Wage Principles

23      The Ministers very properly have pointed to the emphasis placed upon the enterprise bargaining process, and not amendments to awards, as being the vehicle for the improvement of wages, salaries and other conditions of employment.  The Minister for Commerce particularly pointed to the restrictions in s 43 of the Industrial Relations Act, 1979 (the Act) on the power of the Commission to vary an EBA.  The submission was that to grant the application to amend the Award would be in substance to vary the EBA.

24      This submission carries considerable weight.  At least since the amendments to the Act resulting from the Labour Relations Reform Act 2002 there has been a legislative recognition of the importance of the enterprise bargaining process.  Section 6 was amended to make one of the principal objects of the Act to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises, and Division 2B — Industrial Agreements was extensively revised.  The recent history of industrial regulation of Prison Officers has been of negotiating EBAs with only consequential amendments being made to the Award. 

25      Although the Commission is not permitted to amend an EBA except in the most limited circumstances, there is no provision in the Act preventing a party to an EBA from applying to amend the award to which they are a party during the life of the EBA.  To the extent that there is any policy position which addresses the issue raised by the Minister for Commerce, it is to be found in the Act and in the Commission’s State Wage Principles.  Consistent with the adoption in this State of National Wage Cases under the now-repealed s 51 of the Act, the Commission established State Wage Principles which are binding upon the Commission in the exercise of its jurisdiction.  The need, if not the requirement, for the continuation of such Principles was recognised by the State Parliament in the 2006 amendments to the Act which gave the Commission the power in s 50A to make a General Order each year which adjusts the Minimum Wage and award rates of pay (Labour Relations Legislation Amendment Act 2006).  The General Order is also, by s 50A(1)(d), to:

“[Set] out a statement of principles to be applied and followed in relation to the exercise of jurisdiction under this Act to set the wages, salaries, allowances or other remuneration of employees or the prices to be paid in respect of their employment.

26      The current State Wage Principles (2009 WAIRC 00402; Schedule 2 – Statement of Principles 2009) therefore apply to this application and are to be applied and followed.  Their application means that variations to awards which set wages, salaries, allowances or other remuneration may only be made in the limited circumstances contained within them. 

27      The 2007 EBA deals with this issue in Clause 7.0 No Further Claims which provides as follows:

7.0 NO FURTHER CLAIMS

7.1 The parties to the Agreement undertake that for the term of the Agreement there will be no salary increases sought or granted other than those provided under the terms of the Agreement.  This includes salary adjustments arising out of State Wage Cases.  Such increases are to be absorbed in the salaries set out in the Agreement.

7.2 The parties to this Agreement undertake that for the term of the Agreement there will be no further claims on matters contained in the Agreement except where specifically provided for.

7.3 This clause will not preclude the Union from making an application to vary the Award pursuant to the State Wage Fixing Principles. 

28      For present purposes, the union and the Minister agreed in 7.3 that the union is not precluded from making an application to vary the award provided it is pursuant to the State Wage Principles.     

29      Where an EBA has a “no extra claims commitment”, it is most unlikely that the equity, good conscience and the substantial merits of the case would favour the variation of an award which would have the effect of breaching that commitment.  The words “a deal is a deal” remain vital to good industrial relations between employers, employees and their registered organisations.  In this case, Kenner C observed in the matter before him at [28] that the no further claims provision of the EBA did not present a barrier to the interim relief sought by the union; that is, the union’s claim for the trial of an additional payment for out of hours work due to staff shortages and overcrowding did not breach Clause 7.0 No Further Claims.  In this case, if the State Wage Fixing Principles permit this application then it too does not breach the No Further Claims provision. 

30      The union relies upon Principle 7 Work Value because of its reference in 7.2 to changes in the nature of the work, skill and responsibility required or the conditions under which work is performed.  In its written submission at [137] – [146] the union states that there is a “radical change” to the nature of the work when “muster crisis” conditions occur and many Prison Officers become risk managers instead of managing prisoners. 

31      In relation to Principle 7, it is important to note the whole of 7.2 which cautions that:

Changes in work by themselves may not lead to a change in wage rates.  The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.

32      The union also relies upon Principle 10 which permits consideration of an application to vary the remuneration of employees which is not made by an applicant under any other Principle and which is a matter or concerns a matter to vary wages above or below the award minimum conditions.  By 10.2, claims may be brought under Principle 10 irrespective of whether a claim could have been brought under any other Principle.  Principle 10 is to be read in the context of the Principles as a whole; although Principle 10 permits a matter to be considered irrespective of whether it could have been brought under any other Principle, it does not mean that those other Principles are irrelevant.  The strict test in Principle 7.2 for an alteration in wage rates cannot be avoided by invoking Principle 10.  (This Principle states in 10.3 that all claims made under this Principle will be referred to the Chief Commissioner for him to determine whether the matter should be dealt with by a Commission in Court Session or by a single Commissioner.  I note for the record that on 19 June 2009 Kenner C referred the matter to me and I determined that it was appropriate for it to be dealt with by a single Commissioner.)

33      In giving consideration to the application, I draw attention to Principle 1.3 which states:

1.3 In making a decision in respect of any application brought under these Principles the primary consideration in all cases will be the merits of the application in accordance with equity, good conscience and the substantial merits of the case pursuant to section 26(1)(a) of the Act.

34       I therefore look to the merits of the application and turn to consider the evidence.

 The Evidence Regarding the Current Position

35      The evidence before the Commission from both the union and the Department shows that the accelerated growth of prisoner numbers over the last twelve months has been unique in the history of its growth.  The union’s evidence is that the prisoner population in WA has increased beyond the Department’s forecast for the adult prisoner population of November 2008: figures supplied to the union in November 2008 (Sub 3 of WAPOU 1) predicted for 2009 (at the upper forecast level) the adult prisoner population would be 4081 and that it would be 4621 in 2011.  The Commission was informed during the hearing that the muster at the moment is 4837 (transcript p 4).  That is, the current prisoner population at the end of 2009 already exceeds the November 2008 maximum projection for 2010.  It is already above the lower projection figure for 2011.  It was said that this is an increase since December 2008 of over 800 prisoners which equates to a growth in the last 11 months roughly analogous to that which has taken place in the previous eight years (transcript p 4).  Correspondingly, the overtime summary for Hakea, Casuarina and Bandyup Prisons 1 June to 31 August 2009 (WAPOU 5) shows a significant amount of overtime is being worked due to this peak muster. 

36      The evidence of Mr Walsh in relation to the Greenough Regional Prison, and of Mr Smith in relation to Hakea, shows how the general increase in the prisoner population has affected those two prisons, and I accept their evidence.  Greenough Regional Prison has a bed capacity of 219 and its muster 3 months ago was 330; the prison has an average of 10 staff positions vacant on any day created mostly, though not entirely, by roster vacancies (transcript pp 19 – 21, 26) and may fill 5 of those vacancies.  Hakea has a design capacity of 617 prisoners and in November 2009 its muster had reached 903; on the day of the hearing in this matter, Hakea had 25 officers brought in on overtime and one position was unable to be covered.

37      I accept the evidence of Mr Walsh and Mr Smith that Prison Officers work in a more stressful environment at this time of a significant and unforeseen increase in the muster.  In relation to the Greenough Regional Prison, positions are left vacant, staff stress levels have increased which in turn affects prisoners and which increases the incidence of violence between prisoners and by prisoners against officers.  Prison Officers working excessive overtime to meet the demands of the higher muster show increased stress levels to the point where they are not able to function at one hundred percent.  This in turn affects how prisoners are dealt with and potentially the security and good order of the prison is put at risk.  Because of the overcrowding, transfers of prisoners between prisons is extremely restricted due to the lack of beds available and this also leads to stress within the prison.  I accept that these situations are occuring on a regular basis. 

38      Mr Smith was asked whether he himself had found it harder to carry out his role as a Prison Officer over the last 12 months.  He replied:

“Absolutely.  I think because of the increase in muster and, as I said before, the amount of prisoners that we have to look after these days, the concentration of prisoners within such a small area, the conflict that that produces, also the stress levels of Prison Officers that are working in those areas, has made it much more difficult than it was.”

         (transcript p 26)

39      In relation to Hakea, high musters inevitably lead to higher density living, sleeping and containment areas for prisoners.  Coupled with staff shortages, this leads to a change in prison routine.  Work and education routines have changed significantly.  In order to effect the unlocking of prisoners within units it has been necessary to redeploy staff from unit to unit thereby delaying scheduled events such as breakfasting, medication and release for work and education.  These delays put additional pressures on staff as prisoners’ requests and demands were directed to staff in a shorter available time.  Changes in the daily routine include the closing of workshops and education, limiting or closing recreation and limiting the escorting of prisoners including to the medical centre.  The limiting of recreational and employment opportunities means prisoners are forced to spend more time in residential units where additional work loads are placed on staff.  Together with the number of prisoners and the units being above the design capacity, there is a more stressful atmosphere in which Prison Officers have to work.  They are required to be more alert and constantly prepared for incidents, creating constant stress without relief over their entire shift. 

40      It was acknowledged in the Department’s evidence during the hearing in this matter that overcrowding in prisons leads to many, many issues (transcript p 79).  These include the need to maintain order by having a structured day in terms of employment, recreation, programs, education and visits; overcrowding also puts pressure on the actual facilities themselves and impacts on staff by, for example, “burn out”. 

41      This evidence is consistent with the comments made by Professor Neil Morgan, the Inspector of Custodial Services, Western Australia regarding overcrowding in a paper presented in June 2009 (Sub 9 of WAPOU 1).  The Union draws particular attention to pages 16 - 18 where Professor Morgan notes that staff resources may not keep pace with rises in prisoner numbers which may mean that the number of staff per head of the prisoner population may decline and the quality and experience of staff may well drop off leading to an environment where staff are also likely to feel less safe.  Staff will lapse into a less positive role and become gaolers rather than correctional officers and retreat into their secure areas rather than interacting more positively with prisoners. 

42      The Union also quoted from a memorandum of 22 June 2007 from the then General Manager Prison Operations (Document JW22 attached to the union submissions in C23 of 2008) which at page 14 recognised the additional stress and other work environment changes likely to lead to accelerated staff “burn out” and the time frames for recruiting professional staff may result in the prisoner population reaching the higher levels before support staff are in place. 

43      I therefore consider that the evidence referred to above relating specifically to Greenough and Hakea is likely to be representative of working conditions generally within other prisons. 

The Industrial Dispute and the Trial of the Incentive Payment

44      The imposition of overtime bans in mid-2008 led to the involvement of the Commission.  It was the claim of the union for an overtime incentive payment, and the rejection of the claim by the Minister, which lead to its three-month trial being ordered by Kenner C.  The union and the Minister are not able to agree whether the trial was, or was not, a success.  This is, in my view, in part because each measures “success” differently.  During the hearing the Department did not contest the analysis of Mr Clark and I am satisfied that the Department’s data as it has been interpreted by the union in the evidence of Mr Clark is quite reliable. 

45      Mr Clark’s conclusion at [15] is that an extra 184 Prison Officers worked more than four overtime shifts during the trial period compared with a comparable period when the incentive payment had not been paid.  His conclusion is that on the whole, in every prison during the trial the percentage of staff doing no or little overtime reduced, and the percentage of staff already working some overtime increased.  That is, there was a greater take up of overtime by all groups of staff; those who were doing little or no overtime actually started to work more overtime and those already working overtime actually worked more.  I accept that evidence.   

46      I recognise that from the Minister’s point of view, this conclusion does not mean that the trial was a success: not all prisons were involved in the trial and nor were all classifications of prison officer.  However, the evidence before me is that working conditions of Prison Officers improved as a result of additional Prison Officers volunteering to work overtime.  The evidence of Mr Walsh is that he believed that in Greenough Regional Prison during the trial all positions that were required to be filled by way of overtime were filled (transcript p 17).  More officers were putting their names in the overtime book, more were actually working overtime and overall more overtime was worked.  Prior to the trial, between July and September 2008 there were 70 staff who did not undertake at least one overtime shift every 3-week roster period and during the trial this number dropped to 38. 

47      Crucial from my point of view is the evidence that the increased numbers of Prison Officers who were prepared to help cover the shortfall in overtime shifts reduced the amount of stress on Prison Officers (evidence of Mr Walsh at [48], and see too the corresponding evidence of Mr Smith at [48] that morale was “much higher”).  The incentive payment was seen as recognition of the “major change” in the work at this time as well as the “major disruption to officers’ home lives”.  In Hakea during the trial, the increased number of shifts being covered each day and the increased spread of overtime amongst officers changed the ability to manage the high numbers and overcrowding and may have changed officers’ attitudes to working overtime.  All shifts were covered and daily routines were not affected. 

48      Correspondingly, the evidence of Mr Walsh is that the situation after the trial is now worse than it was during the trial.  This is because:

“…we have so many vacant positions due to the positions that were created for the higher muster.  There's not the same amount of names in the overtime book or the amount of officers willing to do overtime as there were during the trial.” 

49      I reach the preliminary conclusion that the effect of the trial was positive because even though there were still some Prison Officers who did not volunteer to work overtime, more Prison Officers did so which resulted in a spreading of the overtime workload between Prison Officers.  This significantly improved the ability to manage the high prisoner numbers and overcrowding and improved staff morale.  It did not completely cure the problem of staff deficiencies but it certainly assisted in addressing the issue.

The Initiatives Proposed by the Minister

50      The opposition to the trial being used as the basis for an amendment to the award is based upon a number of issues.  The evidence before the Commission particularly from Ms Skowron shows that the Department is making commendable efforts to increase recruitment of Prison Officers, including the introduction of “open ended recruitment” and has a significant advertising and recruiting campaign scheduled for 2010.  Its efforts, notwithstanding any unforseen circumstances, should provide 357 Prison Officers into the public prison system by January 2011.  It takes significant resources to fulfil the requirements of a recruitment process and the Department has committed an additional $11.5 million over the next 2 years for the recruitment and training of Prison Officers. 

51      The evidence of Mr Giles shows that there have been preliminary discussions with Departmental personnel on the best way to manage the adult prisoner environment and population including, but not limited to:

• The management of overtime, including a better use of resources to limit reliance on overtime.
• Prison routines and the need to meet the obligations of the prison service to provide an efficient and effective prison system to the WA community.
• Staffing flexibility including the requirement to permit a greater flexibility in rostering so as to meet the changing needs of the prison system.
• Capital works including the commitment by the Government to provide additional resources, and
• The importance of constructive bipartisan discussions and negotiation on the best way forward to resolve the outstanding issues that confront the Department in the management of the prison population. 

52      These points were expanded upon particularly in [20] of the Department’s written submissions.  In my view, the Department’s position in principle has much to commend it.  I agree too, as Kenner C stated at [44] of his reasons for decision, that the objective must be to increase staffing levels to the level agreed to as necessary for the optimum operation of the State’s prisons and that the long term resolution of the issue is to recruit more staff.  The evidence shows, however, that there will be a time lag before the changes to recruitment and the Department’s initiatives in recruitment scheduled for 2010 take effect.  The Department stated at transcript p 99 – 100 that in anticipation of the building program arising from the additional funds that have been provided the Department is already recruiting additional staff which will reduce some of the time lag in that process, but I conclude there will still be a time lag. 

53      During the course of the hearing in this matter the Minister stated that requiring Prison Officers to undertake a reasonable amount of overtime continues to be an essential component of responsible management and its historic application should not be viewed as an indication of its future use.  Mr Giles drew attention to Clause 13.2 which requires Prison Officers to undertake a reasonable amount of overtime and stated that where a need for overtime exists and there are insufficient volunteers to perform it then the Department should feel free to consider the responsible application of this provision. 

54      The union’s written submission at [135] is that its members are strongly opposed to rostering overtime and the Department’s fears about industrial action were raised in the course of the hearing (transcript p 76).  In my view, it is open to the Minister to consider utilising Clause 13.2.  This is because it is an existing award provision and it cannot be treated by either the Department or the union as though it does not exist.  It cannot be ignored either by the Commission in this matter.  It requires all Prison Officers to be available to work reasonable out of hours work in addition to their rostered hours of duty and states that arrangements in respect of such availability will be agreed to ensure that the routine operations of each Prison are maintained.  By Clause 13.2(1), where it is necessary to maintain routine Prison functions, and only when sufficient Officers are not available on a voluntary basis, the Superintendent may roster Officers for out of hours work.  It is to be read together with Clauses 13.11 and 13.13 which provide that subject to the provisions of the clause, Prison Officers may be given advance or immediate notice to report for, return to, or remain on duty to perform out of hours work and must not unreasonably fail to attend duty for out of hours work. 

55      Not only is Clause 13.2 an existing award provision, it was part of changes to the award which were inserted into the award by agreement when pre-paid hours were removed (WAPOU v Hon. Attorney General (2000) 80 WAIG 3110).  Even if ultimately no agreement is reached between the parties about its utlisation, the union should not be seen to resile from the consent it gave to Clause 13 being inserted into the award by refusing to discuss positively how it may be properly and practically used.  

56      For present purposes however, the issue with Clause 13.2 is that the Minister has not used it in the recent past.  Kenner C observed at [32] that even in cases of prior emergencies in the prison system the Commissioner, Department of Corrective Services (who was the named employer in the matter before Kenner C) had not sought to invoke the power in Clause 13.2 to forcibly roster Prison Officers to work overtime.  The lack of recent use of the provision, even during the current significant increase in muster, and the practical issues regarding the rostering of overtime which were raised during the hearing (for example, transcript pp 69 – 70) does not suggest to me that it will provide the solution to the current issue in the short to medium term.  Further, in the context of what is “reasonable” out of hours work, it is not clear what proportion of those Prison Officers working little or no overtime will be available to work out of hours because of, for example, a family member’s illness (transcript p 88) or family commitments (transcript p 31) and in turn it is not clear to what extent the use of Clause 13.2 will in fact address the current situation.  I will return to Clause 13.2 later in these Reasons.

57       In relation to other solutions to minimise the working of overtime, including its current review of rostering practices, the Department still has “a lot of work to do” (transcript p 63).  These represent solutions more for the medium or long term (transcript p 64).  They therefore do not present themselves as solutions available now to address the current situation although in my view they should be pursued and their potential to minimise overtime assessed irrespective of the outcome of this matter. 

58       During the hearing I asked Mr Budd, who appeared for the Minister, whether it is the Department's view that if the union's claim in this matter is granted the Department is prevented from pursuing these alternatives.  The reply (transcript p 52-53) was a belief that if the union’s claim is granted the union will not be as helpful in the resolution of issues.  I put this to Mr Welch and I record here the union’s reply that the union itself has been pressing on the Department a number of the issues and:

“None of those things have been affected by our claim and they weren't affected by the trial.  I don't see why they would be affected into the future, because in our view, there is actually a benefit for all of us for their proposals to work.”                                                                                                  (transcript p 114)

59      In my view this reply commits the union to continue to be as helpful in the resolution of issues as it has been to date irrespective of the outcome of this application. 

60      I turn to consider other issues raised by the Minister. 

Managerial Prerogative

61      The Minister states that the issue raised by the claim predominantly concerns staffing levels, appropriate infrastructure to cater for an increasing prisoner population and prison routines and that these are at the heart of managerial prerogative.  I accept that s 7 of the Prisons Act prescribes that it is the Chief Executive Officer of the Department of Corrective Services who is responsible for the management, control, and security of all prisons and the welfare and safe custody of all prisoners.  It is not the function of this Commission to manage the prison system or a particular prison within it. 

62      Nevertheless, the role of the Commission in dealing with this application to vary the award is recognised in s 13(1) of the Prisons Act which provides that the terms and conditions of the employment of Prison Officers are subject to any applicable industrial award.  I am satisfied that the claim before the Commission concerns an industrial matter, namely the working conditions of Prison Officers as a result of the significantly increased prison population, particularly over the last twelve months. 

Payment for All Out of Hours Work at Double-Time

63      One of the issues raised by the Minister in opposition to this claim, and also by the Minister for Commerce intervening, is the belief that the claim to amend the award is a manifestation of the union’s objective of achieving payment of double time for all out of hours work.  Whatever may be the union’s position in principle in relation to double time for all overtime worked, or its position on it in the imminent EBA negotiations, the evidence brought on this occasion, and the claim, relates only to overtime to be worked in response to peak muster and staffing shortfall situations.  It does not apply outside those situations and my consideration of the claim is not able to be used to support a claim of payment of double time for all overtime worked.    

64      Further, the claim is not for a double time payment as such but rather for the payment of a flat sum which in turn is based upon the formula used by Kenner C which is based upon the difference between overtime at time and one-half for all hours worked and the public service overtime rate, although I recognise that the payment of that sum upon a Prison Officer’s annualised salary is equal to a payment of double time of the Prison Officer base rate (transcript p 121). 

The Penalty Paid on Annualised Salary

65      I also recognise that the payment claimed is effectively a penalty upon a penalty upon a penalty, as both Mr Budd and Mr Andretich have submitted.  This submission must be viewed in the context of the relevant history of the Prison Officers Award because the payment for out of hours work by reference to the annualised salary has a history that is worth revisiting.  Prior to 2000 the award (at that time called the Gaol Officers Award 1998) required all Prison Officers to be able to work up to 80 hours per year in addition to their rostered hours of duty.  Remuneration for these prepaid hours was included in the Prison Officer’s annualised salary (see the award as varied by consent at (1997) 78 WAIG 462 at 464). 

66      Pursuant to Clause 12(1) of the Award as it then was, special shifts could be utilised for certain purposes including for prison overcrowding; if a Prison Officer was offered and agreed to work such a special shift outside his or her ordinary hours, it was paid for at the ordinary rate for the position in addition to the annualised salary.  This was the payment which also applied when a Prison Officer was called in pursuant to Clause 14 to work shifts outside the normal roster for the approved staffing level of the prison due to excess prisoner numbers.  Pursuant to Clause 13(1) of the Award as it then was if a Prison Officer was called in for duty under exceptional circumstances outside the officer’s ordinary working hours, including a major emergency, it was paid for at the rate of double time in addition to the officer’s annualised salary. 

67      In 2000, a dispute between the parties over the operation of the prepaid hours in the Award and over the achievement of an EBA was referred to the Commission and the resulting interim agreement resulted in variations to the operation of the Award (as referred to earlier in these Reasons at (2000) 80 WAIG 3110).  The variations, whilst not actually amending the Award, included effectively deleting the prepaid hours clause and inserting the present Clause 13.  This provides for payment for excess hours to be at the rate of time and one-half, and payment for a Prison Officer called in for Major Emergency Duty to be at double time, of the Prison Officer’s annualised rate of pay; not of the Prison Officer’s base salary.    

68      Therefore payment for out of hours work using the annualised salary, as distinct from using the base salary, is a rate which the Minister for Corrective Services at the time, and the union, have agreed is appropriate for the award.  This, in my view, must lessen the impact of the submission that the claim will result in the payment of a penalty upon a penalty.  I recognise that this is not a rate of payment which the Commission is ordinarily likely to prescribe in an arbitration.  In this case however, to prescribe the payment of the flat sum claimed in addition to the annualised salary merely applies the rate which the parties themselves agreed was appropriate for the calculation of payment for out of hours work and which has operated without amendment since that time. 

Cost Implications

69      The Minister states in the written submission at [18] that payment of enhanced overtime rates will not result in an incentivisation of the broader Prison Officer workforce to work overtime and will not reduce the need for overtime.  It will however, significantly increase overtime costs resulting in less funding available to improve infrastructure.  The three month trial increased the average overtime bill by $156, 000 per month and if imposed on the Department permanently it would add approximately $1.87m to an annual overtime bill estimated to be $19.5m.   This not an insignificant consideration.  The union sought to counter it by submitting that the cost of paying for overtime is relatively less expensive than the cost of hiring, training and equipping new staff however I have not found this to be a persuasive argument.  It is not desirable for large amounts of overtime to be worked on a regular basis and the recruitment of staff is recognised as part of the long term solution to the issue.

CONCLUSION

70      In relation to the State Wage Principles, the evidence produced in this matter shows that the workload of Prison Officers has increased and that work is more difficult and stressful.  However, the claim is not for a consequential increase in salary or a reclassification of the position of Prison Officer.  Moreover, the evidence does not show such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.  I consider the Minister is quite correct in submitting that being busier does not of itself result in an increase in work value (submissions at [82]).  In my view, Principle 7 does not apply.  The Minister at [80] drew attention to Principle 6 Adjustment of Allowances and Service Increments and concludes that it too does not apply, however the union did not advance its claim by reference to Principle 6.  

71      Whether Principle 10 permits it to be considered requires a consideration pursuant to s 26 of the Act.  In this regard, there is much to be said for each of the competing submissions in this matter and it has made this application one of the more difficult matters to decide.  The working conditions of Prison Officers arising from a continuing increase in the prisoner population and staffing being at relatively low levels is not new and has been able to be dealt with over time by agreement between the union and the Minister.  What is new is the unanticipated significant growth in the adult prisoner population over the last 12 months.  The union and the Minister have not been able to agree between them how to address the resulting unanticipated effect on the working conditions of Prison Officers from this overcrowding - hence the dispute which came before Kenner C and the lodging of this claim and its eventual arbitration.

72      On the face of it, it appears contradictory to both recognise that it is not desirable for large amounts of overtime to be worked on a regular basis and to prescribe an incentive to encourage the working of overtime.  However, it is clear that significant amounts of overtime are being worked and will continue to be worked, unless and until the initiatives of the Minister, including increasing recruitment, have the practical effect in the workplace of reducing the need to work such significant overtime.  Prescribing an incentive payment to encourage others to work overtime in this context does not endorse the working of overtime, it spreads the current significant overtime workload over a greater number of Prison Officers thereby reducing the difficult and stressful working conditions being experienced by Prison Officers.  This is important because the current working conditions led to industrial action which was referred to the Commission and which led to the Commission ordering the trial of the incentive payment.  

73      A problem with the claim, and one that has not been easy to resolve, is that granting it will require the Minister to pay more money to encourage more Prison Officers to do what the award already requires them to do: to be available to work reasonable out of hours work.  However as referred to earlier in these Reasons the Minister has not utilised the option of rostered overtime in recent times and it may not be practicable in the short to medium term: the most that can be said is that rostering overtime is either under active consideration or is being progressed (transcript p 54).  It is more difficult for the Minister to oppose the incentive payment on the basis that Clause 13.2 provides the answer when the Minister has not utilised it in recent times.   

74      Another perceived problem is that granting the claim will provide a permanent award provision when the trial was not seen by the Commission as necessarily providing the foundation for a more permanent arrangement (2008 WAIRC 01395 at [44]).  The union says that if some or all of the Minister’s initiatives work and the staffing level increases, the wording of the amendment means that the payment will not be made because there will not be a “critical muster” as defined within the claim.  While this is correct as far as it goes, it also may be premature to grant the claim in advance of the maturing of the Minister’s initiatives: if some or all of the Minister’s initiatives do work and the staffing level increases, the award provision should not be needed. 

75      Negotiations for a new EBA to replace the 2007 EBA are due to commence in only a few weeks and both Ministers submit that the Commission should dismiss the claim and leave the solution to the difficult and stressful working conditions to those negotiations.  However, the outcome of those negotiations will be evident only in the future and to dismiss the claim would mean the Commission would recognise, but then not deal with, the evidence that there is a current problem.  The initiatives proposed by the Minister, whilst commendable, have not yet had a practical effect on the current situation.  They were proposed to Kenner C in 2008 in opposition to the claim for the trial; other than for the increased recruiting initiatives, they do not appear any closer to resulting in a practical change now that they did then and the recruiting initiatives have a necessary time lag attached to them. 

76      In the final analysis, until there is some practical result from the initiatives proposed by the Minister, from the allocation of $655 million to fast track additional beds into the WA prison system announced in May 2009 by the Minister and from the proposal to further increase prison capacities including the recruitment and delivery of more staff, there is nothing in the evidence to suggest that the significant increase in the prisoner population and the corresponding need for Prison Officers to be available to work overtime for that purpose, will not continue in the short to medium term which means that the more stressful and difficult working conditions of Prison Officers will continue in the short to medium term.

77      The evidence before me shows that the unique accelerated growth of prisoner numbers over the last twelve months, with its consequential effect on the working conditions of Prison Officers, is a circumstance which was unforeseen at the time of the making of the 2007 EBA and is not dealt with by it.  To the extent that there was any “front-end loading” of the increases in salaries at the time of the making of the 2007 EBA, it cannot be said that it was in anticipation of the rate of growth of prisoner numbers over the last twelve months.  In my view, the circumstances of the rate of growth in the prisoner population makes it inequitable and unjust not to grant the relief sought because it is the only demonstrated means of addressing the issue in the short to medium term.  The use of Principle 10 in the context of this case permits it to provide a safety valve for a situation not foreseen by the parties to the EBA.  Further, this decision can apply only to Prison Officers – it arises because they are the front-line in relation to the increased prisoner population; there is therefore no likelihood of flow-on to other occupational groups. 

78      I consider that the substantial merits of the matter favour the granting of the application but for the short to medium term only.  This is in part because of the imminent commencement of negotiations: although the accelerated growth of prisoner numbers over the last twelve months was unforeseen at the time of the making of the 2007 EBA, the parties do have the capacity to deal with it in their 2010 EBA.  Therefore, the amendment to be made will contain a sunset clause and operate only for a fixed period.  It will be up to the Minister and the union together to decide whether or not the incentive payment should be made permanent at the expiry of that fixed period in the light of the success or otherwise of their EBA negotiations. 

79      Further, during the fixed period, the development of the suite of initiatives proposed will continue.  The union’s submission is that these initiatives, while welcome, will not work however that really remains to be seen.  The decision whether the incentive payment should be made permanent can also be made in the light of the success or otherwise of those initiatives in addressing the current working conditions of Prison Officers.  In this way, the Commission will deal with the difficult and stressful working conditions being experienced by Prison Officers which have not been addressed and do not appear to be able to be addressed in the short or medium term while not impeding the parties’ potential to address the situation in the negotiation of a new EBA and in the context of the initiatives proposed by the Minister. 

80      Providing the incentive payment for a fixed period will also take into account the issue of cost.  While the cost of the incentive payment for the fixed period will be incurred, it is a cost limited to the fixed period. 

The Minute to Issue

81      The wording of the amendment proposed by the union is based upon the operation of the trial.  There is no suggestion, and certainly no evidence, before the Commission that from an administrative, or mechanical, point of view, the practical operation of the trial did not proceed smoothly.  In my view, the words “Critical Muster” in the union’s claim do not sit harmoniously with the wording used generally in the Award.  Clause 15 of the Award is called “Management of Musters” and previously had been called “Management of Peak Musters”.  I consider the words “Peak Muster” to be more appropriate.   I therefore see no need to vary the wording as proposed other than to refer to a Peak Muster and to include a provision limiting the duration of its operation.  I propose that the duration be a period of six months being a period to the expiry of the 2007 EBA.  The parties have not been given an opportunity to consider the words “Peak Muster” in this context nor the length of a fixed period of operation and these may be addressed at a speaking to the minutes if requested. 

82      The Minute of Proposed Order now issues.