Department of Corrective Services v. Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2006] NSWIRComm 1079

Industrial Relations Commission (NSW)|2006-03-24

CITATION: Department of Corrective Services v. Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2006] NSWIRComm 1079

APPLICANT Department of Corrective Services PARTIES: RESPONDENT Public Services Association and Professional Officers' Association Amalgamated Union of New South Wales

CATCHWORDS: industrial dispute - industrial action - special case considerations - variation to award - higher duties allowance - proposal to discount remuneration received for higher duties work - implications from annualisation of salaries

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: State Wage Case (2005) 142 IR 337

HEARING DATES: 24/03/2006, 04/05/2006, 10/05/2006

APPLICANT John Murphy LEGAL REPRESENTATIVES:

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Department of Corrective Services and the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales

Dispute notification under S.130 of the Industrial Relations Act, 1996 re compensation for higher duties work

1 The Department of Corrective Services lodged a notification of an industrial dispute with the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales pursuant to the provisions of S.130 of the 1996 Industrial Relations Act. Prison officers (the Prison Officers Vocational Branch) proposed to impose a ban on performing higher duties, ie relief work for commissioned officer positions. The ban by the prison officers was to come into operation on Friday, 13 January, 2006. The Department claimed that the impact of the bans would mean that the orderly and efficient operation of correctional centres in the State would be put at risk and that prisoners would be required to be locked in their cells over the weekend. Furthermore, the prison officers attached to the Parramatta Correctional Centre had given 72 hours notice that they would be taking further (unspecified) industrial action if the Department did not fill a position of manager of security on a seven day basis.

2 At issue is the higher duties allowance that prison officers receive whilst they relieve in commissioned officer positions - Assistant Superintendents and Senior Assistant Superintendents. Prison officers are covered by one State award - the Crown Employees (Prison Officers, Department of Corrective Services) Award - and commissioned officers are covered by another State award - the Crown Employees (Senior Assistant Superintendents and Assistant Superintendents, Department of Corrective Services) Award, creating some difficulties when prison officers relieve in commissioned officer positions. I will describe the problem in more detail later in this decision.

3 Discussions between the Department and the PSA in an attempt to settle this issue had broken down and, in that light, the ban had been imposed with the following notice being placed by the POVB and distributed to prison officers on Thursday, 12 January, 2006:

"...Effective first shift Friday, 13 January, 2006 the POVB State Executive directs that a total ban on acting up to commissioned officers positions be enforced. The PSA and the POVB State Executive entered into negotiations with the Department yesterday (Wednesday, 11 January, 2006) in an effort to resolve anomalies emanating from the implementation of the (Commissioned Officers Award) which came into effect on Monday, 9 January, 2006.

The PSA/POVB sought clarification on the rate applied to POVB members that act in higher capacity on weekends and while on overtime. At a further meeting today the Department offered to pay POVB members on higher duties the old rate of assistant superintendent which no longer exists. This offer is seen by the PSA/PVOB as unacceptable. There is only one rate for assistant superintendent positions and that is the rate effective from Monday, 9 January, 2006.

The PSA/PVOB does not issue this directive lightly but are intent on achieving a satisfactory outcome for members. The POVB State Executive believes that there should be total support for this position. Short term loss to achieve proper and just remuneration for higher duties..."

4 The S.130 notification by the Department was allocated to me and I set it down for conference proceedings on Friday, 13 January, 2006. On undertakings being given by the PSA that the bans would be lifted, I adjourned the proceedings for further conference on Thursday, 19 January, 2006. There has been an acknowledgement by the Department that an anomaly has been created with the new Commissioned Officers Award, particularly when prison officer staff relieve at weekends in commissioned officer positions, and further discussions between the parties were scheduled in the interim.

5 When the matter resumed before me on Thursday, 19 January, 2006 I was informed that whilst the PSA was prepared to renew its undertaking that there will be no further industrial action over this matter, the parties were unable to reach agreement over the issue in dispute. I therefore issued the certificate of attempted conciliation and filed it in the manner prescribed by S.135(2). The arbitration of this matter requires a variation to Clause 16, Higher Duties, of the Prison Officers Award and, failing agreement between them, the parties concluded that special case considerations were raised by virtue of the Test Case Standards principle of the current wage fixation principles flowing from the decision of the Full Bench of the Commission (Wright J - President, Walton J - Vice President, Harrison and Sams DPP and Boland J) in the 2005 State Wage Case (2005) 142 IR 337. I therefore referred the matter under S.193 for the consideration of Wright J - President over the programming of the matter.

6 The parties had stressed the urgency for this matter to avoid further industrial action and had indicated, with the concurrence of his Honour, their acceptance of the matter proceeding under delegation before me for arbitration. The matter was referred to me on that basis to be dealt with as a special case. The hearing of the matter was scheduled for Thursday, 23 March, 2006, Friday, 24 March, 2006 and Thursday, 30 March, 2006. At the request of the Department, and with the concurrence of the PSA, the first day of the hearing - Thursday, 23 March, 2006 - was vacated due to the unavailability at that time of Mr Ian McLean, the Deputy Commissioner Offender Management and Operations, of the Department, a witness for the Department in the proceedings.

7 At that time the parties had formed the view that the arbitration of the matter may conclude in the remaining two days set aside for the matter - Friday, 24 March, 2006 and Thursday, 30 March, 2006. A further attempt at conciliation by me on Friday, 24 March, 2006 failed. And it also became necessary to vacate Thursday, 30 March, 2006 due to the hospitalisation of Mr McLean (who was under cross-examination at the time). I set aside two further days for the hearing - Wednesday, 19 April, 2006 and Thursday, 4 May, 2006.

8 Furthermore, Mr McLean was not available for the continuation of his cross-examination on Wednesday, 19 April, 2006 and it was necessary for me to provide a further replacement day - Wednesday, 10 May, 2006 - at the expense of one of the two days set down by Registry staff for the hearing of an application made under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90]. In conflicts in my diary of that nature it is a question of determining priority of matters before me. I concluded that this matter should have priority, involving as it does a serious dispute which may result in disruption of the work of the State's corrective service centres. I made alternate arrangements, with the assistance of Registry staff, for the Part 6 application which I had been forced to vacate.

9 In the hearing Mr Murphy represented the Department, calling Mr McLean to give evidence. Mr Hatcher represented the PSA in the hearing. Mr Hatcher called Mr Gregory O'Donohue, Acting Principal Industrial Officer with the PSA, to give evidence in the hearing. Two senior correctional officers - Mr Mark Felsch, who is attached to the Long Bay Gaol complex, and Mr Brian Sullivan, who is currently involved in metropolitan special programmes - had provided affidavits but Mr Murphy did not require them for cross-examination and their affidavits were admitted into evidence unchallenged. In response to evidentiary material supplied on Wednesday, 10 May, 2006, Mr Hatcher also called Mr Shane O'Brien, Assistant Secretary of the PSA, to give limited further evidence in the hearing.

10 The issue in dispute between the Department and the PSA has to be considered in the context of a reform agenda which the Department is committed to introducing in the administration of State correctional centres - the Way Forward Workplace Reform. Mr McLean recorded in his affidavit which formed the basis of his evidence that:

"...the management of correctional centres has for many years been based on a traditional system which is not conducive to the implementation of contemporary correctional philosophies and principles and which is not financially competitive with correctional centres run by the private sector..."

11 The opening of two new correctional centres - the Mid North Coast Correctional Centre at Kempsey and the Dillwynia Correctional Centre for women at Berkeley Park - gave the Department an opportunity to commence an evaluation and review work practices. A workforce reform agenda was developed and introduced in those correctional centres, culminating with a new consent Crown (Correctional Officers, Department of Corrective Services - Mid North Coast Correctional Centre and Dillwynia Correctional Centre) Award, covering both commissioned officers and non-commissioned officers located at the two correctional centres. The new Crown Award had a new rank structure, an annualised salary package for ranks above senior correctional officer, a flat rate of overtime for senior correctional officers and correctional officers and the opportunity for rostered days off to be cashed in. Mr McLean claimed in his affidavit that significant work practice reforms were achieved with the implementation of the new Crown Award.

12 Over the next months Mr McLean visited all State correctional centres and provided a presentation to staff meetings on the Way Forward process. Agreement was reached for a further consent Crown Award - the Crown Employees (General Managers, Superintendents, Managers Security and Deputy Superintendents, Department of Corrective Services) Award which was subsequently ratified by the Commission. A feature of this second Crown Award was the same annualised salary package, including shift penalties rates and allowances.

13 The Department next addressed the position of Assistant Superintendents and Senior Assistant Superintendents. Negotiations with the Commissioned Officers Vocational Branch of the PSA were protracted but they culminating with the third Crown Award - the Crown Employees (Senior Assistant Superintendents and Assistant Superintendents, Department of Corrective Services) Award which was ratified by Sams DP on Wednesday, 30 October, 2005 to come into effect from the beginning of the first pay period to commence on or after Sunday, 8 January, 2006.

"...The initiatives contained in the three new awards clearly demonstrate that the Department is in the process of introducing far reaching changes to the correctional system. The imperative from the New South Wales Government is that the Department must become more productive and more efficient because the costs of running the privately-operated correctional centre at Junee are far below the costs of operation of State-run correctional centres managed under the traditional operating routines.

I was conscious that the changes being made at the Senior Assistant Superintendent and Assistant Superintendent levels would be more difficult to introduce than those at the General Manager and Manager of Security ranks. Many officers in the two middle management ranks of Assistant Superintendent and Senior Assistant Superintendent worked large amounts of overtime which would no longer be available and there is a closer nexus between the salary rates and conditions between the COVB and the POVB than the senior managerial positions...."

15 Therefore, the Way Forward programme is not completed and Mr McLean has indicated in his affidavit that he saw any measure to rectify the current problem with work performed by prison officers who act up in the positions of Assistant Superintendents and Senior Assistant Superintendents which has given rise to these S.130 proceedings as an "...interim arrangement..." whilst the process continues through the ranks of prison officers. Issue in Dispute

16 Clause 16, Higher Duties, of the Prison Officers Award relevantly provides - subclause (i) - as follows:

"Subject to this clause, an officer who is required to perform duties in a higher position from time to time shall, provided such officer performs the whole of the duties and assumes the whole of the responsibilities of the higher position, be paid an allowance at the difference between the officer's present salary and the salary, and allowance where applicable, prescribed for the higher position."

17 Clause 16 currently provides that the higher duties allowance is not to be paid unless the officer has performed the duties of the higher position for at least three complete and consecutive working days - subclause (ii). However, during recent negotiations for the new Commissioned Officers Award agreement was reached between the Department and the PSA that, notwithstanding the current three day restrictions on the payment of the higher duties allowance in Clause 16, Higher Duties, of the Prison Officers Award, prison officers relieving in commissioned officer positions will attract the higher duties allowance for one complete working day. (The Prison Officers Award has not been varied to date to reflect that agreement, however.)

18 As I have indicated earlier in this decision, the new Commissioned Officers Award was made by Sams DP on Wednesday, 30 November, 2005 by consent of the parties. It came into operation on Monday, 9 January, 2006. It provides for annualised salaries for the commissioned officers weighted to include a component for overtime and weekend penalties. By comparison, the Prison Officers Award remains unchanged at this time: it does not contain annualised salaries. And an anomalous situation has arisen when prison officers working a five day roster from Monday to Friday are required to relieve in positions covered by the Commissioned Officers Award, especially over the weekend.

19 In accordance with Clause 8, Hours of Work, of the Prison Officers Award, the ordinary hours of employment for correction services staff engaged as day workers is Monday to Friday, viz:

"The ordinary hours of work for day workers shall be 38 hours per week, averaged over a 28 day roster period, to be worked Monday to Friday inclusive, provided that by agreement between the parties ordinary hours to a maximum of 12 hours per day may be worked without the payment of overtime. Meal allowances are not applicable."

The span of ordinary hours for correctional services staff engaged on shift work may include weekend work as ordinary time, viz:

"The ordinary hours of work for shift workers shall be 38 hours per week averaged over a 28 day roster period, provided that shifts of up to 12 hours may be worked without the payment of overtime. Meal allowances are not applicable."

Work beyond those hours, of course, is overtime and governed by Clause 13, Overtime, which is in the following terms:

"The conditions of the Crown Employees (Public Services Conditions of Employment) Award, or its replacement, shall apply, provided that in establishments where extended hours and/or extended shifts apply, officers working an overtime shift of 8 hours or more shall be eligible for one meal allowance only."

20 As Clause 16 currently provides, no prison officer relieving a commissioned officer at weekends would attract the higher duties allowance at all since it would not reach the three day limit which is presently set. But I reject the suggestion that Mr Murphy made at the start of the proceedings and in his final submissions, and by Mr McLean in his evidence, that the offer made by the Department that the concession made by it for the three day limit to be relaxed to one day is in any way part of a package of proposals which makes it open to consideration by me in this hearing.

21 That concession was made by the Department and accepted by the PSA during the negotiations for the Commissioned Officers Award. It has already been conceded by the Department and, in my opinion, the concession is no longer open for consideration in these proceedings. As Mr Hatcher submitted in the hearing, the concession by the Department to relax the requirement that the higher duties allowance will not be paid to a non-commissioned officer acting up in a commissioned officer position for three day is actually a consent position between the Department and the PSA and it has already been put into effect, notwithstanding that Clause 16 has not been varied to reflect the agreement reached. The starting point for me in this hearing is therefore the obligation the Department has to pay the higher duties allowance for one complete day in which a prison officer performs the higher duties work, notwithstanding the fact that the Prison Officers Award does not actually reflect that concession to date. I will rectify that position in my decision.

22 However, there still remains a clash between the operation of the Prison Officers Award and the Commissioned Officers Award when a non-commissioned officer relieves a commissioned officer in work outside the span of his ordinary hours. Such higher duties work would attract the remuneration of a commissioned officer which is already weighted to include a component for overtime and weekend penalties. The Commissioned Officers Award provides for two separate salary strands for senior prison personnel, viz:

(i) a seven day rate for staff who may be called upon to work shift work, including weekends, as part of their normal hours of work; and

(ii) a five day rate for staff who work Monday to Friday and who would not ordinarily work overtime, weekends or shift work.

Because the salaries for those commissioned officers working on a five day cycle are now annualised salaries which are weighted to include incidents of work outside the span of ordinary hours, the Department argues that to pay overtime or weekend penalties to any prison officer relieving in a commissioned officer position in accordance with the Prison Officers Award which covers them, on top of the salary to which they would receive for higher duties falling under the Commissioned Officers Award, would be a case of double counting. Mr Hatcher disputes this.

23 According to Mr O'Donoghue, the essential mathematics of paying any prison officer relieving a commissioned officer on weekends no more than the annualised salary of that higher paid position calculated on a daily basis, without any weekend penalty, is that they may actually receive less for the more onerous responsibilities they assume in those senior positions than they would receive if they remained in their existing salary under the Prison Officers Award with the weekend penalty payment applying to them. In particular, the PSA has asserted that at weekends the remuneration level for a senior correctional officer relieving in the position of Assistant Superintendent under the Commissioned Officers Award (and thereby receiving the annualised salary calculated on a daily basis) would be less than the rate of pay he would receive were he to remain as a senior correctional officer under the Prison Officers Award (and thereby receiving weekend penalty rates).

24 As I understand the position, no prison officer is obliged as part of their contract of employment to perform work in a higher paid position and I would not expect them to be over-anxious to do so unless they were paid at a level which they regard as attractive to them - and certainly not less than the salary they would otherwise receive if they remained on their existing salary as a prison officer. It therefore goes without saying that, if the Department must rely on prison officers to relieve in commissioned officer positions it must find a level of remuneration to them on which they are prepared to work.

25 On Wednesday, 11 January, 2006 a meeting was convened between the Department and the PSA and the suggestion was made by the Department that it would pay the daily equivalent of the seven day rate for non-commissioned officers relieving in Assistant Superintendents or Senior Assistant Superintendent positions. But the Department indicated that a shift penalty would not be paid as it was considered by the Department that compensation for the shift penalties for commissioned officers was factored into the annualised salary they were paid. Mr O'Donoghue indicated in the written statement which formed the basis of his evidence that:

"...this effectively meant that senior correctional officers relieving in commissioned officer ranks would, in fact, receive less than their normal rate of pay if they acted up on a Saturday or Sunday. This is due to the fact that non-commissioned officers under the Prison Officers Award receive a 50% allowance for working on Saturday and a 75% allowance for working on Sunday as compensation for the anti-social hours being required to work in accordance with their award..."

26 A further meeting was convened on Thursday, 12 January, 2006. The PSA suggested at that meeting that the five day rate of pay prescribed in the Commissioned Officers Award should apply (as this was the rate "unbundled" for shift penalties) together with the existing shift penalties for the relevant shift from the Prison Officers Award. No agreement was reached and the bans on acting up in higher duties were imposed which brought the matter before me in these S.130 proceedings. (To my mind, and that of Mr Hatcher in his submissions in this hearing, the most appropriate basis for the purposes of comparison is the five day rate for the commissioned officers and not the seven day rate since that rate already excludes shift penalties for weekend work and therefore applies only to week day penalties.)

27 The Department has recognised that an anomaly exists for the prison officers who act up in commissioned officer positions and it has proposed the prison officers relieving commissioned officers be paid a higher duties allowance which represents 85% of the salary level for the commissioned officer position in which they relieve. In that respect the salary for the commissioned officers would be discounted by 5% to reflect the component in the annualised salaries in the Commissioned Officers Award for overtime and weekend penalties and a further 10% in recognition of the fact that the relieving prison officers will not be called upon to perform all of the duties of the commissioned officer positions. In that respect I note that the higher duties allowance in Clause 16 is payable:

"...provided such officer performs the whole of the duties and assumes the whole of the responsibilities of the higher position..."

28 Mr McLean expressed the view in his affidavit that the discounting to 85% the Department was proposing was generous, having regard to the commensurate reduction in the duties to be undertaken in the higher grades and the payment of shift and weekend penalties on top of the rate provided. He explained the offer in the following manner, viz:

"...Clearly the senior correctional officers and correctional officers when acting as Assistant Superintendents or Senior Assistant Superintendents receive a financial benefit that exceeds current remuneration under the previous COVB award and current COVB awards for work performed on Saturday, Sundays and public holidays as a result of the 85% payment arrangement. The offer of reduced duties is an interim gesture of good faith whilst negotiations continue on the Way Forward reform package. This arrangement is further supplemented by the significant concession that the higher duties allowance will be paid for each day a Senior Correctional Officer or correctional officer acts as an Assistant Superintendent or Senior Assistant Superintendent rather than the current POVB award provision of after 3 days of acting in a higher position..."

29 Further meetings were conducted between the Department and the PSA on Tuesday, 17 January, 2006 and Wednesday, 18 January, 2006. At those meetings the Department raised its proposal for the discounting of the five day rate for the commissioned officers for the calculation of the higher duties allowance. That proposal was rejected by the PSA and Mr O'Donoghue claimed in his written statement that in his discussions with non-commissioned officers he had formed the view that:

"...there would be very few, if any, non-commissioned officers that would be prepared to act up based on the offer made by management..."

30 Mr O'Donoghue asserted in his written statement that:

"...in my years of experience it has been generally accepted that work value is determined by the level of responsibility and skill requirement. When a non-commissioned officer acts up in a commissioned officer's rank, there is no significant difference in what is required on the particular day. There is certainly no proper basis for the identification of 15% as the basis of the difference. I would suggest that by far and away the significant level of responsibility rests with the other key responsibilities of the position, being the safety and security of the correctional centre, as well as the staff and inmates at that facility. I consider that staff administration, in comparison, would represent less than 1% of the overall level of responsibility..."

31 In written submissions, Mr Murphy summarised the Department's position in three fundamental propositions which he claims are actually beyond dispute:

(i) the Assistant Superintendent (5 day) rate contains a component to compensate them for the loss of overtime and penalty payments;

(ii) a prison officer acting as an Assistant Superintendent will not be required to perform the full range of duties and responsibilities of the position; and

(iii) therefore the PSA claim that the higher duties rate should be paid on the full daily rate for the Assistant Superintendent (5 day) without any discounting or "unbundling" is untenable.

32 Mr Murphy has referred to criticisms by the PSA on the methodology under which the annualised salaries for commissioned officers were determined and pointed out in those written submissions that :

"...the PSA has expended a considerable amount of forensic energy criticising the basis upon which these amounts were calculated, namely the average of penalties and work for the Assistant Superintendents (5 days) who were working overtime and penalty shifts. This criticism is misconceived... There is no small amount of irony in the fact that the same union that was vigorously trying, in those negotiations, to maximise the quantification of the amount of overtime and penalty payments to its members stood to lose with the introduction of an annualised 'all up' rate, is now, with equal vigour, attempting to minimise that same quantification so as to drive down the amount which should, in fairness, be deducted from the Assistant Superintendent rate in order to avoid double counting for higher duties purposes..."

33 Mr Murphy has proposed an amendment to Clause 16, Higher Duties, of the Prison Officers Award to give effect to the Departmental proposal that the higher grade allowance should discounted by 85%, viz:

"A prison officer or senior prison officer who is required by the Commissioner or delegated officer to perform the duties of a position covered by the Crown Employees (Senior Assistant Superintendents and Assistant Superintendents, Department of Corrective Services) Award from time to time shall, provided the officer performs the prescribed duties and assumes the prescribed responsibilities of the higher position..., be paid a higher duties allowance at the difference between the officer's present annual salary and the annual salary rate prescribed below:

Assistant Superintendent $64,067 Senior Assistant Superintendent $68,719

The annual salary rates...shall be varied in accordance with variations by way of a general salary increase to the Crown Employees (Public Sector Salaries) Award."

34 Of course, the arguments before me in this hearing centre essentially around how much, if any, the annualised salary for the commissioned officers should be discounted for the non-commissioned officers to receive when acting up in the senior positions. Mr McLean has, in fact, provided in his evidence a breakdown of the annualised salary for the commissioned officers which he asserts was how the annualised salary was calculated in the first place. It is from those calculations that the Department has arrived at its discount to "unbundle" the current rate for the purposes of the payment of the higher grade allowance to non-commissioned officers. 35 The written submissions provided by Mr Murphy conclude:

"...Appointed Assistant Superintendents (7 days) receive $306.85 for all shifts worked (Sunday - Saturday). Appointed Assistant Superintendent's (5 days) receive $288.91 for all shifts worked (Sunday - Saturday). The PSA proposes that officers acting in Assistant Superintendent positions receive $288.91 for A Watch, $332.25 for C Watch, $339.47 for B Watch, $433.37 for Saturdays - $126.52 more than an appointed Assistant Superintendent (7 days) doing the same shift - and $505.60 for Sundays - $198.75 more than the appointed Assistant Superintendent (7 days) doing the same shift.

The Department's application would, if granted, result in payment to an acting Assistant Superintendent of $245.57 for A Watch, $282.41 for C Watch; $288.55 for B Watch, $368.36 for Saturdays and $429.75 for Sundays. Under the Department's proposal the acting Assistant Superintendent will still be paid more for weekend shifts than appointed Assistant Superintendents, but the anomaly is not as pronounced as with the PSA proposal..."

36 Mr Hatcher has challenged both the calculations and the methodology used by the Department to justify the annualised salaries of the commissioned officers. Whilst Mr McLean is committed to the calculations and believes that they accurately reflect the correct position mathematically, Mr Murphy has conceded that assessments of that nature were generally "...not an exact science...". I share his view. I appreciate that, to a certain extent, when the Department and the PSA negotiated the annualised salaries in the Commissioned Officers Award, they were faced with the task of quantifying what may have been largely unquantifiable in any practical sense.

37 There are a number of reasons why this is particularly so with the formula for the annualised salaries in the Commissioned Officers Award, viz:

(i) the commissioned officers are permitted time off in lieu of overtime as part of the negotiated settlement for the Commissioned Officers Award and, as Mr Hatcher submitted, that must have some value to the commissioned officers which should be factored into the appropriate rate of pay to apply for the higher duties allowance for prison officers who do not enjoy that benefit;

(ii) it was the intention of the Department to limit what it believed was excessive levels of overtime for some commissioned officers and, consequently, the calculations for past overtime may accordingly be skewed when compared to current levels of overtime work compensated in the annualised salaries;

(iii) although there was no argument on this issue before me from Mr Hatcher and Mr Murphy , it is possible that if limits are now applying on commissioned officers working excessive periods of overtime - or at least overtime levels beyond what is contemplated in the Commissioned Officers Award - the slack may have to be, in fact, taken up by the non-commissioned officers: there is no evidence before me over levels of overtime under the new arrangements and, in view of the fact that the Commissioned Officers Award has only recently commenced operation, little real opportunity to evaluate how it operates in practice; and

(iv) by sampling only those commissioned officers who actually worked overtime, and excluding other commissioned officers who may not have worked any overtime at all, the sample gives a higher average for overtime for the commissioned officers as a group than may have actually been the case: an analogy from the game of cricket was used in the proceedings - the batting average of a player being improved by the exclusion of all of his ducks.

38 Moreover, the annualised salaries flowed essentially out of a negotiated settlement for the new Commissioned Officers Award and I see no reason to go behind what is after all a consent position between the Department and the PSA (albeit that when it was negotiating for the new Commissioned Officers Award it was representing a different class of employees - the COVP and not the POVP). It is trite that consent positions represent what the parties themselves want and are prepared to accept. As Mr O'Brien's evidence suggests to me, the PSA was essentially interested in outcomes when it negotiated the new Commissioned Officers Award and not necessarily the calculations on which those outcomes were based.

39 Of course, that does not provide me with much help in accurately quantifying the "unbundled" salary of commissioned officers for the purposes of calculating the appropriate formula for the higher duties allowance for prison officers acting up in those senior positions. Mr O'Donoghue has produced his own basis for calculations to "unbundle" the current rate for the five day assistant superintendent positions. He has produced a figure of 1% or 2% as a discount. I summarise his calculations, based on a sample of 20 five day Assistant Superintendent, as follows:

Shift penalties: $897.85 average + 8.16% = $971.11 Overtime: $736.55 + 8.16% = $796.75 Total $1,767.87

The percentage of total salary for 5 day assistant superintendent - 2%

Or based on a sample of 33 five day Assistant Superintendent positions:

Shift penalties: $544.15 average + 8.16% = $588.55 Overtime: $446.40 + 8.16% = $482.83 Total $1,071.38

The percentage of total salary for 5 day assistant superintendent - 1%

40 In any event, the PSA opposes any discounting of the higher duties allowance at all and Mr Hatcher has rejected it in his submissions. The PSA's proposed variation to Clause 16 provided by Mr Hatcher in the hearing, is in the following terms:

"...An officer who is required to perform duties in a higher position covered by the Crown Employees (Senior Assistant Superintendents and Assistant Superintendents, Department of Corrective Services) Award (or any award succeeding or replacing that award) shall be paid an allowance equal to the difference between the officer's present salary and the '5 day' salary prescribed for the higher position. Any weekend or overtime penalty rates payable under this award will be applicable to this higher duties allowance."

41 Whilst Mr Hatcher has remained committed to there being no discounting at all for the payment of the higher duties allowance, even on the basis of Mr O'Donoghue's calculations a figure of 1% or 2% would be justified as a discount. Whilst I believe that there is little on which a firm mathematical formula may confidently be placed on any of the conflicting material produced before me, it is clear to me that some discounting of the annualised salary must occur to properly reflect the correct higher grade allowance to pay the non-commissioned officers when they act up in commissioned officer positions. In the circumstances, the 5% which the Department assessed as a component for overtime and weekend penalties in the annualised salaries for the commissioned officers is, I believe, a reasonable discount. Notwithstanding Mr Hatcher's arguments to the contrary, I am satisfied that for the prison officers to retain any entitlement to overtime or weekend penalties for work they perform outside the span of their ordinary hours in relief of commissioned officer positions - which they are seeking and which I believe they are entitled to receive - the rate they receive as a higher duties allowance should be discounted by 5%. To do otherwise would result in the double counting for which the Department remains concerned and which Mr Murphy has highlighted in his submissions.

42 However, the question remains whether or not there should be any further discounting of the higher duties allowance to reflect the Department's view that the relieving prison officers are not performing the full range of duties of the commissioned officer positions. Mr Felsch and Mr Sullivan in their unchallenged affidavits suggest that the difference between the work they perform when they act up in commissioned officer positions and the work ordinarily performed in those positions was negligible. However, in his evidence in this hearing Mr McLean has indicated that there are certain functions ordinarily performed by commissioned officers which would not be performed by relieving employees and it is for that reason the Department has further discounted the higher duties allowance paid to prison officers relieving in commissioned officer positions by 10%.

43 Mr McLean has identified those functions which prison officers would not perform whilst they relieve commissioned officers from the statement of duties of those senior positions. In particular, Mr McLean claims that the following functions of an Assistant Superintendent would not be performed by a relieving prison officer:

(i) maintaining stability within the correctional centre and liaison with all respective line managers and other key stakeholders;

(ii) oversighting intelligence gathering within the centre;

(iii) supervising officers and oversighting the methods utilised in maintaining the security of the centre; and

(iv) managing staff grievances, training and disputes between staff and inmates.

And Mr McLean asserts that prison officers relieving in the position of Senior Assistant Superintendent positions would not be required to perform certain functions of that position, viz:

(i) oversighting and reviewing the services of officers and methods used in managing the centre;

(iii) maintaining and updating a training matrix for all staff;

(iv) developing, implementing and evaluating training of staff;

(v) leading and managing the multi-disciplinary management team; and

(vi) monitoring and actively participating in the development of staff with performance reviews.

44 Mr Hatcher sees these issues in the same way that a claim for a wage claim under the Work Value Change principle of the current wage fixation principles is handled by the Commission, ie the strict test 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...."

Mr Hatcher asserts that the evidence that the Department has provided in this hearing to justify its claim that the prison officers acting up in the positions of Assistant Superintendent and Senior Assistant Superintendents do not perform the full range of the duties of the higher graded position would fail that test.

45 I accept that the responsibilities which Mr McLean has identified as not being performed by those prison officers who act up in commissioned officer positions are all still very important functions for the commissioned officers and they are essentially long-term issues. They are not something which may be performed effectively in short-term relief. Consequently, prison officers relieving in commissioned officer positions would not necessarily be called upon to perform those functions, at least to the same level as a permanent commissioned officer. Nevertheless, there may still be some functions - liaison with line managers, oversighting intelligence gathering, maintenance of the security of the correctional centre, etc - with respect to which some daily activity may, of necessity, arise and, in any event, the essential day to day operations of the correctional centres would apply to prison officers relieving in commissioned officer positions.

46 In my opinion, that should suffice to give them the entitlement to the salary of that more senior position without further discount. I am satisfied that the vast bulk of the responsibilities of the commissioned officers positions would fall on the shoulders of the relieving prison officers and I see no reason to further discount the higher duties allowance.

47 In the circumstances, I propose to vary Clause 16, Higher Duties, of the Prison Officers Award effective from the beginning of the first pay period to commence on or after Thursday, 12 January, 2006 - the date of lodgement of the S.130 notification which brought this matter forward and, consequently, the earliest day authorised by S.15(3)(c) for the variation to take effect. The variation shall, firstly, confirm the agreement of the parties to the payment of the higher duties allowance for one day in place of the three days which is presently contained in Clause 16 and shall also provide as follows:

"An officer who is required to perform duties in a higher position covered by the Crown Employees (Senior Assistant Superintendents and Assistant Superintendents, Department of Corrective Services) Award (or any award succeeding or replacing that award) shall be paid an allowance equal to the difference between the officer's present salary and 95% the '5 day' salary prescribed for the higher position. Any weekend or overtime penalty rates payable under this award will be applicable to this higher duties allowance."

*Felsch, Mark Senior Correctional Officer McLean, Ian Deputy Commissioner Offender Management O'Brien, Shane Assistant Secretary of the PSA O'Donohue, Gregory Acting Principal Industrial Officer (PSA) *Sullivan, Brian Senior Correctional Officer

Affidavit admitted without the need for cross-examination

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