Industrial Relations Commission of New South Wales CITATION : Department of Juvenile Justice and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and anothor re bans on admissions and backfilling of positions [2004] NSWIRComm 355 NOTIFIER: PARTIES : Department of Juvenile Justice RESPONDENT: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales FILE NUMBER: 5089 of 2003 CORAM: Sams DP Industrial dispute - juvenile justice centre - industrial bans in support of backfilling of vacant positions - bans lifted - issue in dispute referred to arbitration - application to vary Award - backfilling where suitable person available - restructure to unit based model - past custom and practice - safety and security of staff and detainees - workload of staff - opportunities to act up in higher grades - service delivery to clients - evidence of staff. CATCHWORDS : Held, no jurisdictional issues to determine - variation to Award within power - insufficient evidence - lack of evidence as to actual risk of safety and security - no evidence of an erosion in opportunities to act in higher duties - evidence based on perceptions and beliefs - little evidence of decline in service delivery or increase in workload for staff - routine backfilling of most positions at operational levels - proposal limited to a small number - public interest test not satisfied - failure to meet evidentiary onus - application to vary Award refused - application dismissed - matter to be discussed in new award negotiations. Children (Detention Centres) Act 1987 LEGISLATION CITED : Children (Detention Centres) Regulation 2000 Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award (2000) 100 IR 447 Re Cram and others, Ex Parte NSW Colliery Proprietors' Association Limited and others (1987) 163 CLR 114 CASES CITED : Re Crown Employees (New South Wales Fisheries Salaries and Conditions of Employment) Award [2003] NSWIRComm 405 AWARDS: Crown Employees (Department of Juvenile Justice - Detention Centres 2002) Award (not yet published) HEARING DATES: 06/03/2004; 06/04/2004; 06/30/2004 DATE OF JUDGMENT: 11/23/2004 NOTIFIER: Ms E Brus of counsel, instructed by the Department of Juvenile Justice LEGAL REPRESENTATIVES: RESPONDENT: Mr D Chin of counsel, instructed by Jones Staff Solicitors JUDGMENT: - 43 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 23 November 2004 Matter No IRC03/5089 Notification under section 130 by the Department of Juvenile Justice of a dispute with Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and another re bans on admissions and backfilling of positions DECISION [2004] NSWIRComm 355 1 This matter arose as a consequence of a dispute notification, pursuant to s130 of the Industrial Relations Act 1996 ('the Act'), lodged on 11 September 2003 by the Department of Juvenile Justice ('the Department'). 2 The dispute, at that time, concerned the imposition of bans by members of the Public Service Association and Professional Officers' Association Amalgamated Union ('the Union') at the Frank Baxter Juvenile Justice Centre, Kariong New South Wales ('the Centre'). The bans were said to be in support of the Union's claim that the Department should back fill various positions at the Centre which become vacant for more than eight hours. The Commission convened a number of compulsory conferences in the last quarter of 2003 and although the bans were lifted, the subject matter of the dispute remained unresolved. Accordingly, pursuant to s135 of the Act, I issued a certificate of attempted conciliation on 11 December 2003 and listed the matter for arbitration. 3 The Union was directed to file and serve the draft orders it proposed the Commission should make and confer further with the Department as to the settlement of the subject matter in dispute. This ultimately proved unsuccessful and the matter proceeded to arbitration in June 2004. 4 The Union's grounds and reasons for a variation to the relevant Award were succinctly summarised in its application to vary the Award, filed on 20 February 2004. These were: 1. The Frank Baxter Juvenile Justice Centre ("Baxter") commenced operations under the administration of the First Respondent on or about 29 December 1999. 2. Baxter functions as secure, 120-bed facility housing both short and long-term juvenile detainees who are either the subject of control orders or on remand. 3. On 20 August 2002 the Industrial Relations Commission of New South Wales ("the Commission") made an award known as the Crown Employees (Department of Juvenile Justice - Detention Centres 2002) Award ("the Award"). 4. The Award gave effect to substantial changes in the First Respondent's staffing structure, including its staffing structure at Baxter, whereby service delivery and staff were organised in discreet units within each detention centre; and whereby acutely complementary and highly interdependent staffing hierarchies were instituted for operational staff, managerial staff and counselling and administrative staff ("the staffing restructure"). 5. The staffing restructure, which was implemented at Baxter during the period 2002-2003, was represented to the staff at Baxter as being intended to improve the quality of services provided to detainees, as well as to better ensure the safety and security of staff through closer supervision and support and to provide staff with clear and accessible career paths based significantly upon the provision of opportunities to "act-up" in higher positions and duties. 6. Prior to the staffing restructure it was the usual custom and practice at Baxter, save for certain positions outlined below, to enable a subordinate member of staff to act in, or otherwise exercise the functions of, a higher position within the staffing structure that became vacant for three (3) or more days as a result of the absence of the holder of the higher position for any reason. This practice is known as "backfilling". 7. The exceptions to this practice were the positions of Unit Manger, Unit Coordinator and Youth Officer (or their pre-restructure equivalents) which, if vacant for one (1) or more days, were automatically backfilled. 8. In the premises, the staff at Baxter had a legitimate expectation that the aforesaid backfilling custom and practice would continue after the staffing restructure. 9. However, in or about mid-2003, the First Respondent issued a new directive, contrary to the aforesaid custom and practice, with effect that the backfilling of all positions (save for Unit Manger, Unit Coordinator and Youth Officer) would be determined on a purely discretionary and ad hoc basis. 10. In practice since this directive, the First Respondent has adopted a presumptive approach against backfilling vacant positions at Baxter. 11. This approach to backfilling has had a substantially adverse impact upon quality, safety and security of the performance of work and industrial relations at Baxter, including as follows: (a) breach of security standards as a result of the dispersal of functions of absent Assistant Managers to persons unfamiliar with a relevant unit; (b) failure to backfill Assistant Manger positions resulting in the removal of key supervision and support for Unit Managers and other staff; (c) failure to backfill Assistant Manager positions resulting in the dispersal of Duty Manger shifts to Unit Managers who do not receive any higher duties allowance, or compensation for those shifts additional to the all incidence allowance, the quantum of which has been determined by industrial agreement based on the maintenance of a standard duty roster; (d) failure to backfill Assistant Manager positions resulting in the denial of career progression opportunities to, and increase workload for, other staff such as Unit Managers, Unit Co-ordinators and Youth Officers; (e) failure to backfill counseling and psychologist positions resulting in greater focus on managing short-term and immediate crises at the expense of longer term rehabilitation of detainees; and (f) failure to backfill Clerical Officer Positions resulting in inefficient work outcomes and denial of career progression opportunities for clerical staff. 5 The Union proposed two alternative variations to the Award in the following terms: Schedule A An order that the Crown Employees (Department of Juvenile Justice - Detention Centres 2002) Award be varied with effect on and from 1 July 2004 by adding: (a) the following sub-cause to existing clause 15: "Back-filling vacant positions at the Frank Baxter Juvenile Justice Centre 15.5 In the event that a Unit Manger, Unit Coordinator or Youth Officer position at the Frank Baxter Juvenile Justice Centre ("Baxter") becomes temporarily vacant for a period of one (1) day or more because the holder of the vacant position is absent or has otherwise vacated the position for any reason (including by reason of acting up in a higher position pursuant to this clause), the Department shall forthwith appoint to act in the vacant position: (a) an available member of staff at Baxter who is most immediately subordinate to the holder of the vacant position; or (b) in the case of a vacant Youth Officer position, a casual Youth Officer employed by the Department. 15.6 In the event that a Centre Manager or Assistant Manager position at Baxter becomes temporarily vacant for a period of three (3) days or more because the holder of the vacant position is absent of has otherwise vacated the position for any reason (including by reason of acting up in a higher position pursuant to this clause), the Department shall forthwith appoint to act in the vacant position an available member of staff at Baxter who is most immediately subordinate to the holder of the vacant position. 15.7 In the event that a Clerical Officer, Counsellor of Psychologist position at Baxter become temporarily vacant for a period of five (5) days or more because the holder of the vacant position is absent or has otherwise vacated the position for any reason (including by reason of acting up in a higher position pursuant to this clause), the Department shall forthwith appoint to act, or otherwise engage, in the vacant position: (a) an available member of staff at Baxter who is most immediately subordinate to the holder of the vacant position; or (b) if such a subordinate member of staff is not available, another member of staff of the Department as appropriate; or (c) in the case of a vacant counsellor or psychologist position, an appropriately qualified person." Or in the alternative; (b) the following sub-clause to existing clause 15: "Back-filling vacant positions at the Frank Baxter Juvenile Justice Centre 15.5 In the event that a Unit Manager, Unit Coordinator or Youth Officer position at the Frank Baxter Juvenile Justice Centre ("Baxter") becomes temporarily vacant for a period of one (1) day or more because the holder of the vacant position is absent or has otherwise effectively vacated the position for any reason (including by reason of exercising all of the functions of a higher position pursuant to this clause), the Department shall forthwith ensure that: (a) an available member of staff at Baxter who is most immediately subordinate to the holder of the vacant position; or (b) in the case of a vacant Youth Officer position, a casual Youth Officer employed by the Department, exercises all of the functions of the vacant position and is paid at the higher rate in accordance with this clause. 15.6 In the event that a Centre Manager or Assistant Manager position at Baxter becomes temporarily vacant for a period of three (3) days of more because the holder of the vacant position is absent or has otherwise effectively vacated the position for any reason (including by reason of exercising all of the functions of a higher position pursuant to this clause), the Department shall forthwith ensure that an available member of staff at Baxter who is most immediately subordinate to the holder of the vacant position exercise all of the functions of the vacant position and is paid at the higher rate in accordance with this clause. 15.7 In the event that a Clerical Officer, Counsellor or Psychologist position at Baxter becomes temporarily vacant for a period of five (5) days or more because the holder of the vacant position is absent or has otherwise effectively vacated the position for any reason (including by reason of exercising all of the functions of a higher position pursuant to this clause), the Department shall forthwith ensure that: (a) an available member of staff at Baxter who is most immediately subordinate to the holder of the vacant position; or (b) if such a subordinate member of staff is not available, another member of staff of the Department as appropriate; or (c) in the case of a vacant counsellor or psychologist position, an appropriately qualified person, exercises all of the functions of the vacant position and is paid at the higher rate in accordance with this clause." EVIDENCE 6 The Frank Baxter Centre is the largest juvenile justice facility in New South Wales, for detainees over sixteen years of age. The detainee population has changed in the last decade from a majority of sentenced detainees to a situation now, in which detainees on remand, in custody, can sometimes outnumber sentenced detainees. The Centre opened in 1999 having replaced the Mount Penang facility. The Centre has a capacity for 120, however currently the facility has 90 beds, although the present occupancy level is 86. Detainees are accommodated in 15 bed units. The Centre has eight units, of which two are presently not operational. Each unit has a staffing equivalent of 10.5 Youth Workers, three Unit Co-ordinators, one Unit Manager and 0.5 Assistant Managers on any one shift. There are 151 permanent staff and 40 casual employees at the Centre. The Centre's organisational chart is annexed to this decision. 7 The Union called evidence from the following employees of the Centre: Peter Reberger - Assistant Manager Beryl Pearson - Unit Manager Vicky May Arnold - Unit Manager Mark McFadden - Unit Co-ordinator Craig Perkins - Counsellor Bernard Patrick Parmeter - Unit Co-ordinator Their evidence may be summarised as follows: 8 Mr Peter Reberger has been employed by the Department of Juvenile Justice for over 20 years. He has worked "at the coalface" and in all management positions, including Centre Manager. He described, in particular, the role of the Team Leader which was introduced in 1996. Mr Reberger has been involved in a number of restructures within juvenile justice centres. 9 Mr Reberger said the Centre was opened in December 1999 as a result of the movement of detainees from a large open facility with no security fences (Mount Penang) to a facility with high security fences. Staffing figures were agreed at the time between the Department and the Union. Mr Reberger's evidence detailed the operational aspects of the Centre and the nature of the detainees. 10 Mr Reberger described the review of the operational structure in 2001. This review involved a move to a unit based model based on "seamless service." He gave details of how the new model works: To show what is required to effect a 'Seamless Service' in an operational sense, I will give an overview of how Baxter operates. Youth Officers are the coalface or frontline staff who deal with every detainee on their unit for the bulk of their 8 hour shift. The detainees are out of their rooms from 7am to 9pm in most units. Youth Officers ensure all detainees' needs are met from food to contacting family. The role for Youth Officers has been expanded to encompass greater involvement in programs and a for more detailed interaction with detainees through case management under the 2002 restructure although Youth Officers have been involved in casework, programs and operational issues for many years. However the changes, policies, technology and higher standards expected in all areas have increased and amplified their role, whilst at the same time detainees have become more difficult to manage and accommodate. Youth Officers work 3 rotational shifts (6am to 2pm, 2pm to 10pm and 10pm to 6am) of 8 hours over a 6-3, 6-3, 7-3 rotational pattern, which means they work 19 shifts and have 9 days off in any 28 day rostered period. There are teams of 3 Youth Officers on each unit in the morning and afternoon shift and one Youth Officer in each unit on the night shift when the detainees are locked down. Youth officers rely on a Unit Co-ordinator who is their team supervisor on the same roster in the same unit. Unit Co-ordinators have 3 staff under their direct supervision as well as the 15 detainees in their unit at any one time. The Unit Co-ordinator is responsible for any and all incidents, issues and problems in their unit as well, as responding to an alert for assistance throughout the centre. Unit Managers and Assistant Managers work 5 in 7 days with 19 shifts on duty and 9 off duty in a 28 day roster period. In their roster 6 shifts in the 19 days are rostered to perform the Duty Manager role, which makes them solely responsible for the entire centre at that time in relation to operational matters. In my opinion there should always be either a Unit Manger or an Assistant Manager performing in the Duty Manger role due the level of experience and knowledge required to run the whole centre. The Duty Manger role is higher management role and although each unit should manage their own incidents the Duty Manger is the ultimate support for Unit Co-ordinators and Youth Officers on a Centre wide basis, for example in co-ordinating a response to a serious incident. The allocation of duty shifts was part of an industrial agreement arrived in the course of the negotiations on the Crown Employees (Department of Juvenile Justice - Detention Centres 2002) Award. The allocation of duty shifts is not referred to in the award but in the Centre Management Working Party of 1 and 2 May 2002 report. Unit Managers must ensure the integrity of their until program by continually assessing staff and detainees to ensure the provision of a seamless service. Assistant Managers (Generalist) have two units allocated to them to supervise as well as another area such as Admission (1 Unit Co-ordinator and 8 Youth Officers), Operations centre (5 Unit Co-ordinators and 12 Youth Officers) and Programs (1 Unit Co-ordinator, 5 Youth Officers, 5 Vocational Instructors, 4 Cooks and 1 Kitchen Hand). The Assistant Manager (Client Services) is solely responsible for all Client Support staff such as Psychologists and Counsellors. The Centre Manager directly supervises the Assistant Managers, Clerical staff and Maintenance Officers but is ultimately responsible for all of the Centre administration and operations. All positions are linked with the common cause of providing a safe and secure environment for detainees and staff. Once this is achieved then the programs and casework functions can be most effective. All positions have a distinct role and responsibility and are complementary, and do not substitute for each other. Each is part of an integrated structure which addresses Safety and Security and Client Service. This can be illustrated by reference to the operational procedures in the Department's Operational Manual. 11 It was Mr Reberger's view that operational staff must be replaced at all times when they are not present in order to ensure a safe and secure environment. He added that: It is crucial that Unit Co-ordinators' positions are filled as the Unit Co-ordinator is the team leader of their unit, and the unit model relies on the effective operation of teams. It is the same for the Unit Managers and Assistant Managers because their role is that of the quality supervisor who provides the direction and guidance for the Unit Co-ordinators and Unit Managers respectively and ensures that standards are followed, as well as fulfilling the role of Duty manger. If they are not present then quality slips, the programs suffer and in turn the detainees and staff suffer. Duty of care to detainees suffers. Staff safety and security suffers. If Unit Managers or Assistant managers are not present for any period and they are not replaced then their workload must be and is taken up by another Unit Manger or Assistant Manager thereby accumulating and increasing that other person's responsibilities and workload. 12 Mr Reberger deposed that during the 2001/02 restructure, staff were told that the restructure would provide greater career opportunities. He said that further: It had been custom and practice in the 7 years that I have been at Mt Penang JJC and Baxter JJC for all staff positions including Centre Manager, Assistant Managers, Clerical Officers, Councillors and Psychologists to be backfilled if they were vacant for a period of three days or more. All direct care positions from Youth Officer to Unit Manager were and are filled when the substantive occupant was away on recreation, sick, long service, study or Family or Community Service Leave leave. The custom and practice behind backfilling of positions was to provide integrity and a continuity of service to both detainees and staff as outlined above at paragraph 19 related to 'Seamless Service'. 13 Finally, Mr Reberger deposed: The 2002 restructure was negotiated by the PSA on its understanding that the practice of replacing staff who were not on duty would continue. If this new idea of replacing staff on occasional basis had been a part of those negotiations, then more staff would have been required in all management levels initially to accommodate absences. This is a later addition by the Department to try to trim overblown budgets. Such a practice does not aid a quality service, nor has it anything to do with 'seamless service', or providing a career development for staff. 14 In cross examination, Mr Reberger said that the practical effect of the changes made in the restructure of 2001/02 resulted in all staff allocated to a particular unit having knowledge of individual detainees. Records are kept available for all staff to access. He agreed it was a better operational system than had existed previously and was still the subject of ongoing review. 15 Mr Reberger agreed that there was an agreement in principle between the Department and the Union for a review of the Award and the staffing structure and further, that he was involved in that process. 16 Mr Reberger believed that an incident which occurred in the Tasman unit in November last year would not have occurred if he had been present. He was on leave at the time. Information regarding the incident came from an 'inside source'. He conceded however, that incidents occurred even when full staffing is in place. He agreed that the extent and number of incidents are not directly related to whether or not there is a full staff complement. 17 Mr Reberger confirmed that off duty Unit Co-ordinators and Youth Workers are replaced as a matter of course. Vacant Unit Manager positions were generally filled, but not on every occasion. The only positions not being backfilled were Assistant Manager positions. 18 Mr Reberger referred to a period in May 2003 when his position had not been backfilled. He said that even though his duties were undertaken by the Centre Manager, not all the work was completed. However, he agreed that during a later period of leave, his position had been backfilled. When he returned everything was up to date. Mr Reberger accepted that the grant of leave at this time around Christmas/New Year was based on a roster and subject to Departmental convenience. 19 Mr Reberger was unclear as to the extent of backfilling for the Unit Manager position. He conceded that some vacant clerical positions were backfilled by using a return to work program for staff on workers' compensation or rehabilitation. 20 Mr Reberger said, that unlike Youth Workers where a casual pool was available, this was not the case for Psychologists. Absent Psychologists were not necessarily replaced because suitable persons were not available. He would prefer to see a pool of Psychologists being available. Mr Reberger suggested that two clerical staff and two counsellors/Psychologists should be specifically employed by the Department to fill temporary vacancies across the state. 21 Mr Reberger said that his main area of concern was the backfilling of operational and management roles. He said he disagreed with how the Award delineated positions within the managerial stream vis a vis the operational stream. He believed a Unit Manager was an operational position because it had a multi functional role. 22 Mr Reberger agreed that it was a rare occasion when a Duty Manager's role was not undertaken by a Unit Manager or Assistant Manager. However, the relieving person does not leave his/her own work station, but is available to act in an incident or emergency. He agreed the Duty Manager's role is rostered between Assistant Managers and Unit Managers. He said that they work six of the 19 shifts as Duty Managers. The Centre Manager is on call 24 hours a day, seven days a week. 23 Mr Reberger acknowledged that where there was a vacancy, an assessment was made by the Centre Manager of the need to fill the position. He said that the budget constraints were enormous and unless there was an extreme situation, the budget would override every other decision. He described this as "totally inadequate." 24 Mr Reberger disagreed with the respondent's evidence (Mr Muir) that the increased number of management positions in the new structure (37 from 18) meant that there were increased opportunities for staff to act in higher duties. He claimed this did not occur in reality. 25 In re-examination, Mr Reberger deposed that where positions are not backfilled, the staff are required to prioritise the work, the first priority being safety and security. He believed it was essential to have experienced senior staff in place. 26 Mr Reberger clarified his earlier evidence when he said that before October 2003, Unit Managers' absences would have been automatically backfilled. This had not occurred in recent times. 27 Ms Beryl Pearson has worked for the Department since 1988. She has held various management positions including Assistant Manager at Baxter. Her present position is Unit Manager of the Nurranga Unit at Baxter. 28 Ms Pearson described the introduction of Assistant Manager positions in 2002, arising from recommendations from a Council on the Cost and Quality of Government (COCQOG) report to the NSW Government. She said that the Assistant Managers and the Unit Managers share the role of Duty Manager. The Duty Managers duties are: i. Assume the delegations of the Senior Management Team ii. Oversight and managerial decisions related to movements, serious issues, legalities and placement. iii. Decision making and leadership in emergency responses. iv. Receive and decide matters on detainees appeals related to confinement and segregation. v. Contact for after hours casework matters. vi. Receive, notify and supervise processes and procedures related to serious incidents. vii. Liaise with community groups after hours. viii. Ensure procedural correctness and in certain instances, process injury management matters. ix. Receive and manage grievance matters. x. Assist in the notification and rectification of emergency maintenance issues. xi. Liaise with Official Visitor when required. xii. Interpret complex policy and procedural matters as required. xiii. Ensure communication of important system messages are relayed to appropriate staff. xiv. Provide dispute resolution between staff particularly over rostering and placement matters. xv. Support the security and supervision procedures of the centre. xvi. Oversight of the time and management process as required to ensure system integrity. xvii. Provide an after hours on call service to the centre. 29 Annexed to her statement was the Centre roster from 1 December 2003 to 25 January 2004. Of the five Assistant Managers absent during this period, only two were filled for the entire period, one for 75 per cent of the absence and two not all. 30 Ms Pearson said this impacted on the day to day operation of the Centre, giving rise to safety and security considerations. She said: On their return to normal duty where there has been no backfilling, Assistant Managers are faced with an excessive workload in the attempt to 'catch up' with work not completed over the period of absence. This work includes the checking, reviewing and provision of feedback on any documentation that has been completed by staff under their direct supervision; to critically analyse any incidents and related documentation pertinent to their assigned units; and to request/gather additional information where necessary and submit reports and recommendations to the Centre Manager. 31 Ms Pearson deposed that the Department's decision to only backfill management positions at the Centre Manager's discretion was in contrast to her experience that positions would be filled for planned absences of three or more days. She noted that vacant Youth Officers and Unit Co-ordinator positions are always filled. She believed the decision not to backfill Assistant Manager positions had been in place for two years. 32 Ms Pearson believed the Department's approach substantially diminished the level of value and importance given to these positions and ran contrary to the rationale behind the restructure in 2002. 33 Ms Pearson in cross examination, agreed that the volatility at Baxter was determined by the client mix at any given time. The staff had a range of experience and seniority. However, Ms Pearson believed that as a result of high staff turnover there had been a reduction in experienced staff in the last two years. 34 Ms Pearson gave a recent example of where an Assistant Manager's (Mr Corben) position was not backfilled for a week over the 2003/04 Christmas and New Year period. It was Ms Pearson's' belief that backfilling of this position over the Christmas period was necessary as detainees are unsettled and there are less programs available. This results in a need to have senior experienced staff on duty at all times. Without this, the safety and security of detainees and staff is threatened (In cross examination, Ms Pearson agreed that Mr Corben's absence of four weeks was backfilled for three). 35 Ms Pearson said it was also necessary to backfill Psychologist and Counsellor positions so as to ensure that counselling target groups and risk assessments are not "placed on the backburner." She gave an example of a delay of three weeks in January 2003 when a particular psychologist was away. In cross examination, Ms Pearson agreed she was not a psychologist, but had a general knowledge of the work they perform. 36 Ms Pearson said that a major focus of the 2002 restructure was to provide opportunities for career progression through gaining experience by acting up in management positions. These opportunities have now diminished and her own qualifications and experience are being under utilised. In oral evidence, Ms Pearson gave an example of her own recent absence when her position was not backfilled. 37 Ms Pearson said that when she acts as Duty Manager she chooses to locate herself at the Operations Centre. She agreed that this was not a requirement, but she did so based purely on the unpredictability of the situations that arise from time to time. Nevertheless, Ms Pearson agreed that, regardless of location, she was contactable by phone or radio. 38 Ms Pearson was asked if it was a fact that in the period January 2003 to January 2004 she had acted up as Assistant Manager on 58 occasions. She conceded that this was the case and that she had been provided with "good opportunities" to act up. Further, in cross examination Ms Pearson agreed that it was not correct to say that there is a policy of no backfilling. 39 Ms Vicki May Arnold is currently employed as a Unit Manager. She said her support base was her immediate supervisor, the Assistant Manager. She deposed that she is in constant contact with the Assistant Manager concerning all aspects of her work. 40 Ms Arnold deposed that because a large number of reports and paperwork are the responsibility of the Assistant Manager, this work is not completed within the time frames, if the Manager is absent and not replaced. She gave examples of Misbehaviour Reports, Use of Force Reports and Occupational Health and Safety Reports. Ms Arnold said that the Assistant Manager convenes weekly Centre Support Team meetings. Ms Arnold agreed that the presence of the Assistant Manager was not critical to whether these meetings occur. 41 The Assistant Manager also works a number of duty shifts. Ms Arnold believed these rostered duty shifts should be shared evenly amongst the Assistant Managers and Unit Managers. Duty Managers' daily duties include dealing with minor misbehaviour, dealing with serious incidents, supervising and mentoring staff, liaising with families and external agencies. Duty managers are also on call when not at work. 42 Ms Arnold said that when the Duty Manager's position is not backfilled, other Assistant Managers and Unit managers are required to cover their shifts, taking them away from their normal duties and not being paid for it. In cross examination, Ms Arnold agreed that when the Assistant Manager is the duty manager, he/she are on call while at the same time attending to their normal duties. 43 Ms Arnold said she had worked in various positions and gained valuable knowledge and experience. She had backfilled as an Assistant Manager and expanded her knowledge and skills. She felt that if she was denied these opportunities, she would be personally stifled. Acting up has enabled her to further her career. She agreed that she may have acted up on 30 days from January 2003 to January 2004, but said it wasn't on 30 separate occasions. 44 Ms Arnold believed that prior to the restructure in 2002, all positions were usually backfilled if the absence was for three days or more. Since the restructure the Assistant Manager's position has only been backfilled at the Centre Manager's discretion. 45 Ms Arnold attached to her affidavit the Department's Human Resources Strategic Plan. This plan refers to staff being skilled up to take management positions. Ms Arnold said there was no point to this if employees could not gain practical experience in higher duties. Replacing staff who resign will also become a problem. 46 Ms Arnold said that her three Unit Coordinators act up in her position for about two weeks each per year. As a result of her not acting up to Assistant Manager, the Unit Managers are denied opportunities to act up in her position. With backfilling, all employees are supported and mentored in the duties of the higher positions. Ms Arnold believed that, not only had the Department a responsibility to ensure safety and security, but there was an obligation on the Department to offer all staff an opportunity to grow within the organisation. 47 In cross examination, Ms Arnold agreed that as a result of the new structure there is a more holistic approach to the management of clients. She agreed the Centre Manager was available on most occasions. Assistant Managers can not send reports or matters directly, as they must be signed off by the Centre Manager. 48 Further, in cross examination, Ms Arnold agreed she had acted up as an Assistant Manager on a number of recent occasions. She agreed she had not been denied opportunities to do so. She further agreed that the Assistant Manager positions were sometimes filled and that the Department had not "consistently declined" to do so. Ms Arnold acknowledged that she still acted as a mentor whether she was acting up or not. 49 Mr Mark McFadden is a Unit Coordinator and has been employed by the Department for fourteen years. Mr McFadden gave evidence of the work performed by the clerical staff and said that these tasks directly support the Centre's operation and are critical to client management. He cited, in particular, the maintenance and updating of the Client Information data system, information on clients relating to risk assessment review reports and incident reports. These functions were critical, and if not made available, can compromise safety and security. Mr McFadden referred to the importance of the communications system to operational requirements. 50 There was also a need for prompt and effective administrative responses to staff personal inquiries. Mr McFadden agreed that this was available through ringing the Sydney Head Office or by contacting the union delegate. In cross examination, Mr McFadden agreed that clerical employees at the Centre do no deal with salary and leave matters. Queries are usually directed to Head Office. 51 Mr McFadden deposed that since 2002, vacant clerical positions have been backfilled on an ad hoc basis. This had resulted in a backlog of work not completed within the Department's time frames. Important information about a detainee may not be published. He conceded that he did not know how many times this had occurred. 52 Prior to the restructure in 2002, Mr McFadden said that vacant clerical officer positions were backfilled for absences of five days or more. A pool of casuals was available for vacant Clerical Assistant positions or replacements could be found from Youth Officers on return to work programs. He agreed this pool dated back to pre 1999 and does not exist now. 53 Mr McFadden stated that in theory, the restructure allowed all classifications to progress through and across the structure providing that staff had the necessary qualifications and skills. He agreed he liked the new structure. Mr McFadden agreed that all the records for a particular detainee are retained within the unit and can be accessed by all employees at anytime. 54 In cross examination, Mr McFadden said that he had not been employed in a clerical capacity and so did not have first hand knowledge of what he attested to in his affidavit. However, Mr McFadden agreed that the clerical officer functions could be undertaken by another person in the clerical area. 55 Mr McFadden said that the switchboard operates between 9.00am and 4.30pm and calls outside these hours are put through to the Coordinator, Operations. However, he had received complaints from Public Service Association members that calls were being put through during office hours; although he couldn't say how many. He agreed that other means of communication, including hand held radios and an internal phone system were available. This system includes a duress function. Phone calls on the weekend were handled by operations staff. There was also a static camera facility in certain parts of the Centre. He accepted that these were back up facilities. 56 Mr Craig Perkins is a drug and alcohol counsellor and has worked for the Department for twelve years. He is a qualified psychologist. In describing his work at the Centre, Mr Perkins said his individual client load varies from 8 to 14 detainees at any one time. He also conducts group programs for a further 20 to 30 detainees. 57 Mr Perkins deposed that the makeup of detainees of the Centre has changed in recent years. Numbers in custody have declined from around 500 to 300 with more serious offenders now concentrated in juvenile justice centres. Recidivism is high (up to 50 per cent). This profile has increased the importance of additional and intensive psychological rehabilitation programs which are comprehensive and linked through casework, education and unit programs. 58 Mr Perkins described the duties of psychological and counselling staff as: i. Risk Assessments: formalised assessment of a child's risk of self harm, violence and violation of security, which is periodically reviewed. ii. The serious Young Offenders Review Panel; assessment and reports from day and overnight leave for child with serious indictable offences. iii. Gaol classification reports: for adult offenders being transferred to jail. iv. Behavioural management plans (a formalised plan for managing children who are acting out in custody. There are usually about 5-10 boys on such plans). v. Involvement in units. Each member of the psychological team is linked formally to a unit in Baxter. This involves attending unit meetings and providing support and advice for staff in that unit. vi. Rostered Counselling Duties: Each member of the psychological team has a period of half a day duty each week. This is to provide a service to clients in crisis. In addition to these additional duties there are periodic but temporary disruptions to the provision of service to our clients. Currently these include: i. The case management roll out which now results in the psychologist tea, interacting with about sixty youth workers as opposed to four caseworkers. Liasing (sic) and supporting youth workers assigned to do specific casework with specific detainees, as they develop competencies in case work adds to our workload. ii. increased filing during the initiation phase of the implementation of the new Electronic Case Management system, which has just been rolled out. The restructure of the DJJ during 2002-2003 has resulted in casework being devolved to Youth Workers from specialised caseworkers. 59 Mr Perkins deposed that the capacity to provide an adequate service is impacted by a failure to back fill vacant positions. He referred to occasions in 2003 when the team was down two of more staff and not backfilled. Clients were assigned to other staff and "baby sat." Only urgent cases were attended to. Regular counselling thus gave way to a crisis focus and regular group sessions were not conducted. This had led, in turn, to increased levels of stress on staff. Further effects include: (a) Staff not being able to respond in a reflective or thoughtful way to a client's future. (b) Clients who are overtly troubled receive a service while others receive little or no service at all. 60 Mr Perkins stated that shortages in other teams exacerbate the crisis mode of management of clients. Functions which have been abdicated during staff shortages are: (a) psychological rehabilitation including group work. (b) attendance at meetings (c) attendance at supervision (d) involvement in case management functions (e) support and advice for unit staff. (f) future services 61 Mr Perkins offered two case studies in 2004 to illustrate these issues when a full staffing complement was in place. These cases reflect how focussing beyond immediate crisis needs gives longer term assistance to clients. They would not have received a full service when absent staff were not backfilled. 62 In oral evidence, Mr Perkins said that basically one person works with one detainee unless particular expertise is required. However, information is shared on a regular basis. 63 Mr Bernard Patrick Parmeter is a Unit Co-ordinator at the Centre having commenced employment with the Department in 1997. Mr Parmeter has acted in the positions of Unit Manager and Team Leader. He described his duties as: To ensure the smooth operation of the centre with regard to supervision of all staff and detainees. This meant ensuring that movements and outings were approved and adequately staffed; ensuring all programs were being run and had necessary equipment, accepting clients from police custody and checking legal mandates; liaising with outside agencies and families of detainees; approving outside of hours visits; dealing with minor misbehaviour reports and administering necessary punishments; conducting searches or supervising strip and unit searches, investigating overtime schedules for permanent and casual staff, signing all time sheets and adjusting rosters. This position had no direct supervision or co-ordination of the unit or pod and no responsibility for case management but had very broad operational functions. 64 In contrast, Mr Parmeter said as a Unit Co-ordinator in the new structure his role was to: Ensure all data entries are accurate for electronic case management; that all legal orders are endorsed; that clients are inducted and receive clothing on entering the centre; liaising with outside agencies including courts and members of the legal fraternity, and preparing documentation required under the Children's (Detention Centres) Act 1987, the Bail Act 1978 and Sentencing Act 1989, with regard to detainees on remand or control leaving the centre for any reason. 65 Mr Parmeter said the restructure was designed to promote better supervision of staff and enhance supervision and security. A more accessible grading structure allows staff to move through the operational stream and gain further qualifications and experience, increasing their chances of promotion. He agreed the restructure provided a different way of managing detainees with all unit staff exchanging information. 66 Mr Parmeter deposed that the current practice in respect to backfilling was unsatisfactory. Assistant Managers are only backfilled at the Centre Manager's discretion. Assistant Managers duties include: i. direct the work of Unit Managers. ii. perform duty shifts. iii. ensure operational coverage seven days per week. iv. responsibility for development and training of operational staff. v. oversee and approve the Centre roster and filling of casual and temporary staff. vi. approve of visitors. vii. maintain practices and procedures for security. 67 If an Assistant Manager is not replaced and is looking after two additional units, workload is increased and security may be affected. He gave an example in 2003 when he inadvertently permitted a detainee to go on an outing when an Assistant Manager was absent from the particular Unit and the position was not backfilled. However, in cross examination, he agreed it may simply have been an error, unrelated to backfilling. 68 Mr Parmeter said that if Unit Managers are not given an opportunity to act in Assistant Manager positions then they cannot be expected to have the expertise and knowledge required to be an effective Assistant Manager. This has a flow on effect down the line. A less experienced officer should be offered the opportunity to act up in the operational streams. 69 In cross examination, Mr Parmeter said there were two or three occasions last year when Assistant Manager positions were not filled and it was raised with management. He agreed Youth Officer, Youth Co-ordinator and Unit Managers were usually backfilled for absences of three or more days and that this situation had not changed. 70 Mr Parmeter accepted that the unit core function didn't cease with the absence of the Assistant Manager. Rather there were problems if the absence was for an extended period, even for a day. However, it depended on the circumstances and absences of two or three days may not present any difficulties. 71 Mr Parmeter agreed that when performing the role of Duty Manager an officer continues to perform the role of Unit Co-ordinator or Assistant Manager and the Duty Manager is only called upon to act if a particular incident occurs. 72 Mr Parmeter agreed that during 2003 he had a number of opportunities to act up as a Unit Manager. For the respondent 73 Two witnesses were called: Mr Steven Wilson - Centre Manager Mr Peter Muir - Assistant Director, General Operations, Department of Juvenile Justice. 74 Mr Steven Wilson commenced employment with the Department in 1984 as a Youth Worker. Since that time, he has worked in most positions within the juvenile justice centre environment. He holds a Bachelor of Social Science degree and University Certification. Attached to his statement was an outline of the functions of the Centre Manager. 75 Mr Wilson deposed that in the period from 24 February 2003 to 21 March 2004, there were a total of 1333 management shifts. Of these 998 were worked by their substantive occupants, 267 were covered by replacement staff and 74 standard (Monday to Friday day shifts) were not filled. Duty Manager shifts were covered at all times. 76 Mr Wilson took issue with the evidence of each of the Union's witnesses. In particular he deposed that Youth Officers, Unit Co-ordinators and Unit Managers are routinely replaced for planned leaves of absence and, even for short absences. Unit Co-ordinators and Unit Managers are routinely backfilled when possible as dictated by the availability of staff with appropriate skills and qualifications. He said it was not practical to automatically backfill vacant Clerical Officers and Psychologist positions due to the lack of specifically qualified staff. 77 Mr Wilson agreed that from October 2003, he had advised that Youth Officers, Unit Co-ordinators and Unit Managers would be routinely backfilled, but Assistant Managers and the Centre Manager would be filled on a needs basis. 78 Mr Wilson said that the 2002 restructure had in fact provided more staff at the Centre. Previously the number of detainees was 105, but it is now a maximum of 90. Within this, is a fluctuation of detainees (15 to 20) on remand. These detainees are more crisis driven, rather than with long term therapeutic needs. 79 Where it is not possible to backfill all client services, individual cases are referred to other staff for intervention and action as required. A comprehensive handover of all relevant information is provided. Backfilling may occur if qualified staff are available. 80 Mr Wilson said Assistant Managers do not correspond directly with the Regional Director. All documentation forwarded to the Department or to outside agencies is signed off by the Centre Manager. He noted that from January 2003 to January 2004, Ms Arnold had acted in higher duties on 30 occasions. Higher duty opportunities are provided for Unit Co-ordinators. 81 In respect to clerical positions, Mr Wilson said that there had been a reduction in the incoming phone calls with the installation of a direct dialing system. There are few occasions when calls are diverted to the Operations Centre. Security and safety are paramount and phone calls are a secondary priority. In any event, the Centre had a dedicated line for contact to the Operations Centre, a two way radio communication facility with duress function and static cameras at specific locations. 82 Mr Wilson deposed that staffing issues are not dealt with at a clerical level, but are referred to Head Office, if not satisfactorily resolved at the local level. Mr Wilson said that clerical positions have never been automatically backfilled. He was not aware of any "pool of casuals." 83 Mr Wilson said that vacant Assistant Manager positions are evaluated individually according to the functions required, workload issues, detainee population and consultation with the particular Assistant Manager. The position is not specifically an operational role. The Centre's roster is usually the responsibility of the Unit Coordinator. Assistant Managers have input into visiting and oversight the Department's policies and procedures. 84 Duty Managers are expected to have the necessary qualifications, experience and skills to undertake this role. Support is provided for less experienced officers acting in this role. Mr Wilson said that when Assistant Manager positions are not backfilled, Unit Managers report directly to the Centre Manager. 85 Mr Wilson said that short periods of non backfilling for psychologist and counsellor positions does not appear to impact on long term casework or planning. Immediate concerns are addressed. 86 Mr Wilson added that Ms Pearson has acted up on 58 separate occasions during the 12 months to January 2004. Mr Wilson had personally advocated for Ms Pearson to act in promotional positions at Yasmar and Kariong Juvenile Justice Centres. Mr Wilson said that Mr Parmeter had acted up on 69 occasions from January 2003 to January 2004. Mr Wilson said his own position is backfilled when he is absent for any significant period. 87 In oral evidence, Mr Wilson said that information concerning replacement staff is located at Head Office. He also described the functions of the Operations Centre which essentially monitor daily activities. He said Duty Managers are physically located in their usual unit and are available to attend to any incident. 88 In cross examination, Mr Wilson said that as Centre Manager he reported to the Regional Director. This occurred on a regular basis or as the need arose. Mr Wilson meets at least weekly with all the Managers at the Centre and on a daily basis with the Assistant Managers. Mr Wilson is the legal custodian for the detainees as prescribed in the Children (Detention Centres) Act 1987 and detainees can raise concerns directly with him. Mr Wilson agreed that the Centre can be a volatile and unpredictable workplace. However, the response to incidents has largely remained the same for some years. 89 Mr Wilson said that the 2002 restructure was about providing a more active role for Youth Officers and their participation in case management and delivery of client services. 90 Mr Wilson agreed that there had been an increase in the number of serious offenders at the Centre since 2001. However, partly due to the restructure, he believed there were less risks to safety than existed previously. 91 Mr Wilson acknowledged Mr Reberger's evidence as to the past practice of backfilling vacant positions. He intended to maintain, as far as was possible, certainty and predictability of staffing levels. 92 Mr Wilson agreed that his position had not been backfilled while attending these Court proceedings, nor had the positions of the Union's witnesses when attending to give evidence. He agreed he had notice of these absences. However, he said no officer had asked to have their position filled. 93 Mr Wilson was asked about an extended absence of Mr Reberger in November 2003. Mr Wilson had originally agreed to backfill his position, but then changed his mind. Mr Wilson said he had made an assessment of what was occurring at the time. He made the decision after consulting the Regional Director, but had not told Mr Reberger of the reasons. He could not recall if he had canvassed the views of other Assistant Managers. 94 Mr Wilson agreed that Counsellors and Psychologists have a significant input in the rehabilitation process. He agreed with Mr Perkins that for a period of 21 weeks, the team was down three positions and not backfilled. 95 As to Ms Arnold's 30 occasions of acting up, Mr Wilson agreed that this was on seven occasions for 30 shifts. Mr Wilson agreed that when positions are not backfilled it does not enhance security or the quality of client service and may increase the workload of staff. Mr Wilson emphasised the issues to be considered when deciding not to backfill a position. These include safety, security and workload. 96 In reexamination, Mr Wilson said he was contactable by mobile phone at all times whilst he was annual leave, even when his position was filled. He said that the number of serious offenders does not really impact on the volatility of the Centre. The real impact comes from short term remands. 97 As Assistant Director General (Operations), Mr Peter Muir is responsible for nine detention centres and 36 community based units across New South Wales. He is also responsible for the Department's psychological and specialist programs and for the transportation of young people in custody. He has had 25 years experience in social welfare. 98 Mr Muir referred to the development of the current staffing structure at the Centre. He said the old structure resulted in severely fractured service delivery and poor co-ordination in the provision of programs and staff development. The new structure was designed to provide a more holistic service to detainees under the unit management concept. This concept is one in which the Unit Manager is responsible for ensuring the provision of the full range of services to detainees. 99 Case management is an integral part of the process and is intrinsically linked to corporate objectives and to the safety of staff. Mr Muir said that while there have been some implementation difficulties, the new system has been almost universally rated by the detainees as superior to the old structure. They believe their needs are being met and it has changed their views of front line staff. Staff have greater access to information and are therefore better placed to effectively manage detainee behaviour. Staff have reported a change in the way detainees treat them. Mr Muir attached to his affidavit the organisational charts for the old and the new structures. 100 Mr Muir said that Mr Reberger confused the day to day line management responsibilities of Assistant Managers with the role of the Duty Manager. The Duty Manager provides high level decision making when a line supervisor of the unit is not available. This role had been clearly articulated and agreed to in negotiations with the Union. Instead of one Team Leader there are now six Unit Co-ordinators who provide a much higher level of supervision. 101 Mr Muir said that prior to the restructure, staff had been offered 3867 higher duty days. Since the restructure it had been 3792 days. There had been no loss of opportunities - rather the reverse. In oral evidence, Mr Muir said that these figures relate to the 12 months to 8 September 2002, compared to the 12 months after, and cover Unit Co-ordinators, Unit Managers, Assistant Managers and Youth Workers. He did not believe it included clerical positions. Mr Muir was shown a union calculation which disclosed a deficit of 405 days for Unit Co-ordinators, Unit Managers and Assistant Managers for the same period. He did not dispute these alternative figures. 102 Mr Muir deposed that the role of the entire Department had changed; not just that of the Centre. A decade ago the detainee population consisted mainly of sentenced detainees. Today the number on remand in custody frequently exceeds sentenced detainees. This trend was evident across the system. 103 Mr Muir agreed that it was crucial that vacant Unit Co-ordinator's positions be filled at all times. Vacant Centre Managers are not always relieved. These are decisions for the local management. The powers of the Centre Manager are at all times able to be delegated. Mr Muir said it was his experience that not all positions were previously back filled. SUBMISSIONS For the Union 104 Mr Chin submitted that the Association's amended schedule A essentially sought to preserve, and in some instances, reinstate the long standing system of filling temporarily vacant positions at the Centre. Mr Chin confirmed that the variation sought would not apply to other juvenile justice centres. 105 He submitted that there was no challenge taken to the Commission's jurisdiction to grant the variation, pursuant to s10 and s 17(3)(d) of the Act. Further in oral submissions, Mr Chin put that there was nothing in the Public Sector Employment and Management Act which would inhibit the Commission from granting the variation; see ss22,24 and 9(5) of that Act. 106 In answer to the Department's concerns, Mr Chin submitted that: 1. The proposed variation was never intended to have the effect of bringing the Department in " technical " breach of the Award. The amended schedule remedied this concern and made the filling of a vacant position subject to an appropriate person being available to fill the position. 2. It has long been recognised that staffing levels do not lie exclusively within the province of managerial prerogative. See Re: Cram and others; Ex Parte NSW Colliery Proprietors' Association Limited and others (1987) 163 CLR 114. Mr Chin said that this authority had particular resonance in this case because of the evidence of the impact of the failure to backfill positions. That evidence went to the safety and security of staff and the workload of the staff. 3. The Department made a unilateral decision to the long standing practice to backfill positions (at least in respect to the Assistant Manager) in October 2003. There was therefore no nexus between this decision and restructure of 2001. 107 Mr Chin submitted that there were four considerations that require the consistent and predicable backfilling of vacant positions. 1. The safety and security of staff in an environment which can be violent, volatile and unpredictable and which requires immediate response from staff, including Assistant Managers and the Centre Manager. 2. Promotional and training opportunities for staff. 3. Equitable distribution of work. 4. Quality of client services. 108 Mr Chin said that Mr Muir had confirmed that the unit based model was designed to enhance the safety and security of staff and to increase the level of supervision. Mr Wilson had acknowledged that the risk of volatile incidents, remained significant, with little change since 2003. 109 Mr Wilson had conceded that the management structure had remained the same since 2001 and the method of co-ordinating staff response to incidents of violence or disruption has remained the same. Mr Wilson had also conceded that the level of experience of Assistant Managers would impact on the ability to foresee, detect and manage potential or actual incidents. 110 Mr Chin put that the past practice of automatic backfilling of the Centre Manager and Assistant Manager positions was consistent with the variation proposed to the Award. There remained a policy of the automatic backfilling of Unit Managers, Unit Co-ordinators and Youth Officers, even for vacancies on short notice. The evidence disclosed that there had previously existed a "pool" of clerical assistants, psychologists and counsellors for vacant positions. Mr Wilson agreed backfilling was desirable in terms of the needs of staff, career progression and predictability. 111 Mr Chin said it was significant that the evidence demonstrated no material change in circumstances that would effect the desirability of the past practice of routine backfilling to continue. Indeed the purpose and nature of the 2001 restructure enhanced that requirement. 112 Mr Chin referred to the evidence of the failure of the Department to backfill positions: (a) Mr Reberger's absence in 2003 and the "Tasman" incident. Mr Reberger had deposed that the incident would have been anticipated and monitored more closely, if this position had been backfilled by an experienced Assistant Manager. Important paperwork had not been attended to. (b) Mr Parmeter's evidence concerning a detainee allowed on an outing who shouldn't have been, because another Assistant Manager was not in possession of crucial information. (c) Despite abundant notice, the Union's witnesses in this case had not had their positions filled, even in contravention of the purported current practice. (d) Three vacancies in the psychologist/counsellor team for 21 weeks. This had effected the quality of client service. (e) Mr Wilson had asserted the desirability of backfilling but put that it was now a matter for his discretion in consultation with the Regional Director. (f) There had been a decrease in acting up opportunities for Unit Managers, Unit Co-ordinators and Assistant Managers of 403 days in a twelve month period to 8 September 2003 compared to the previous twelve months. 113 Mr Chin emphasised that the public interest would be served by a requirement to backfill vacant positions as sought by the Union. In addition to the safety and security reasons, backfilling is necessary for the equitable distribution of workload and quality of client services. 114 The priority of client services is reflected in the statutory obligations of staff. Clause 32 of the Children (Detention Centre) Regulation 2000 places an obligation upon the Centre Manager or other staff to give a detainee who requests to speak with the Centre Manager, or other staff, an opportunity to do so on the day on which the request is conveyed or as soon as practicable after that day. Section 15 of the Children (Detention Centres) Act 1987 provides that a detainee is in the deemed custody of the Centre Manager. 115 Promotion and career progression also depend crucially upon acting up opportunities through backfilling. Mr Muir had agreed one only gains experience by acting up in vacant positions. For the respondent 116 Ms Brus took issue with the Union's submission that routine backfilling was more necessary because of the restructure to the unit based model in 2001. She put that it was rather the reverse. While it was accepted that there was still a need for backfilling, the role of the Assistant Manager as team leader was not as great as it was under the old structure. 117 Mr Brus submitted that there were two primary bases for the Union's application. The first concerned safety and security. The evidence in this regard was very limited. Mr Reberger gave evidence concerning the so-called "Tasman" incident. Ms Brus said this example takes the Union's case nowhere. Mr Reberger wasn't even there at the time and made sweeping assertions, that it wouldn't have happened if he'd been there. The fact was that the incident didn't occur. Mr Reberger conceded that the number of staff doesn't always determine whether an incident will or will not occur. 118 Ms Brus said that Mr McFadden's vague evidence concerning clerical staff not taking phone calls was similarly unhelpful to the Union's case. How this impacted on safety was unclear and not established. There was simply no evidence to support the contention that diverting phone calls prejudiced safety. Moreover, there were other means of communication - closed circuit cameras, radios and duress alarms. 119 Ms Brus agreed that the workplace was volatile and unpredictable. However, even the Union's witnesses agreed that there were various reasons for this volatility including the makeup of detainees, time of the year and individual detainee idiosyncrasies. 120 As a result of the lack of evidence, no case had been made out for the automatic backfilling of positions for the purposes of ensuring the safety and security of staff. 121 The second aspect of the Union's application related to the opportunity for staff to act up in higher positions. It was consistently asserted that there had been, or would be, a denial of opportunity to act in higher graded positions. However, the evidence of Ms Arnold, Ms Pearson, Mr Parmeter and Mr Reberger all disclosed that they have had many opportunities to act up in higher positions in recent years. As a result, it could not be said that there had been a "consistent erosion" of opportunities. 122 The opportunity to act up is fundamentally determined by the absence and duration of absence. Indeed, Ms Brus said that the most contentious classification - Assistant Manager - shows that the opportunities in this classification have actually increased since the restructure. 123 In respect to the example of the Psychologist/Counsellor team in 2003, Ms Brus contended that this was an extraordinary situation. As to the evidence concerning the ad hoc filling of vacant clerical positions, the only evidence was that of Mr McFadden. He frankly did not know whether the backfilling had been regular or not. His evidence was either very limited or incorrect. 124 As to the failure to backfill for the witnesses who gave evidence in this case, Ms Brus said that these were single day absences which would not have automatically attracted backfilling under the Union's proposal in any event. 125 Ms Brus said that while staff were perfectly entitled to be concerned about backfilling, their concerns were not supported by the facts. The facts are that with the new structure there is not the same need to automatically backfill vacant positions. A decision is made based on the entirety of the absences. The work still gets done. 126 Ms Brus submitted that the staffing structure and the Award (which expired on 30 June 2004), are the subject of negotiations between the Union and the Department. This review will include consideration of the issue of backfilling. As such, the proposed variation is not only without merit but premature. There was no demonstrated urgency for the application. In reply 127 Mr Chin submitted that there was simply no evidence of any change since October 2003 which warranted a departure from the past custom and practice. Mr Chin said that it was not necessary to establish an actual accident or injury to manifest a risk to occupational health and safety. It was necessary to have a stable staffing level to decrease any safety risk. CONSIDERATION 128 This application has been made pursuant to s17(3)(d) of the Act such as to seek a variation to the Award in circumstances where the Award's nominal term has expired. The Commission may vary the Award if it considers it would not be contrary to the public interest to do so. 129 The matter proceeded on an agreed basis that the Commission was able, as a matter of jurisdiction, to make the variation if a proper case had been made out, based on the evidence. I understand that there were no jurisdictional issues of the kind discussed in Re Crown Employees (New South Wales Fisheries Salaries and Conditions of Employment) Award [2003] NSWIRComm 405. I also apprehend that no issue was taken by the respondent in regard to the Public Sector Employment and Management Act 2002. I proceed to determine the application on this basis. 130 Mr Chin correctly submitted that the Commission has the power to make orders or awards dealing with staffing issues, and that such a power is well grounded in industrial jurisprudence. He referred to the judgment of the High Court in Cram and cited the following passage: Many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an "industrial matter". A dispute about the level of manning is a good example. It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work. So also with the mode of recruitment of the workforce. The competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards. Employees, as well as management, have a legitimate interest in both these matters. 131 This passage was referred to in New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award (2000) 100 IR 447, where the majority Wright J (President) and Schmidt J, said at para 64: It is a matter for the Department to determine what level of care is required to be provided to disabled people living in a group home, in accordance with the statutory and other responsibilities which it has to those clients. The Department meets those obligations by employing staff to perform the necessary work. What must therefore be determined in these proceedings, where issue is being taken as to the requirements made of the employees who are employed to perform sleepover work, is what award provisions are required to ensure that the relevant conditions are 'fair and reasonable'. 132 It is in that context that I turn to the particular facts and circumstances of this case and whether it is "fair and reasonable" to vary the Award as sought by the Union. 133 It is useful, I think, to state from the outset what this case is not about. This might appear to be a curious starting point. This case is not about a refusal by management at the Baxter Centre to backfill vacant positions; rather the differences between the parties is that the management reserved the right, in particular circumstances, not to backfill every vacant position. The Union's position, shortly stated, is that it should. 134 How does the Commission reconcile this difference? One thing is plain from the evidence. Backfilling of vacant positions under the current policy is by no means a rare or infrequent occurrence. Indeed, it seems to me that it is largely unchanged since before the 2002 restructure. The Association acknowledged that prior to the restructure there was not a policy of the mandatory backfilling of all positions. 135 Mr Wilson's evidence was that the positions of Youth Officers, Unit Co-ordinators and Unit Managers would continue to be routinely backfilled, but Assistant Managers and the Centre Manger would only be filled on a needs basis. In other words, in truth, this application is limited to a very small number of staff at the senior level. Thus, it seems to me that the staff directly "at the coal face" will continue to be routinely back filled and that senior management are available to handle any critical or emergency issues in the absence of the Assistant Manager or Centre Manager. 136 Having made these observations, I would agree with Ms Brus that there was scant evidence to sustain the Union's arguments based on the two issues of safety and security and a failure to provide opportunities for staff to act in higher grade positions. Safety and Security of Staff 137 In respect to the first issue, the evidence was very limited and restricted to the opinions of staff, rather than real or actual situations. In these circumstances, the Union's evidentiary case must be said to be very weak and did not go anywhere near the necessary evidentiary burden on the Union to prove its case. 138 Many of the Union's witnesses gave evidence that they believed if vacant positions were not backfilled, the safety and security of staff and clients would be compromised. While I accept that this was a legitimately held concern of the staff, there was no direct evidence of any health and safety issue in recent times which was manifested or exacerbated by a failure to backfill positions. Even the small number of incidents referred to in the evidence may have been explainable by other factors. 139 Overwhelmingly, the evidence points to a team approach to the handling of incidents which, in an institution like Baxter, may occur from time to time depending on a range of factors, including the client mix, time of the year and particular individuals. 140 Last year's "Tasman" incident was highlighted by the Union. Three things may be said about that. Firstly, no incident actually occurred. Secondly, there was no evidence of a direct correlation with what had occurred and the failure to backfill positions. Thirdly, senior officers could not say unequivocally that the incident would not have arisen if vacant positions had been backfilled. However, this evidence is demonstrative of the unexpected and unpredictable dynamics of the environment at a juvenile justice centre. 141 Mr McFadden's evidence went primarily to the role of clerical assistants fielding phone calls which, if not answered, were handled by operations staff. It was said that these duties diverted operations staff from their major roles and thereby compromised safety and security. 142 I do not accept this proposition. Leaving aside that Mr McFadden had not worked in a clerical position, the evidence was that the switchboard only operated from 9.00am to 4.30pm, Monday to Friday. Calls at other times were diverted to operational staff. Back up communications were available through two way radios, an internal phone system with duress function and a static camera facility. 143 Mr McFadden offered no specific incident of when safety and security had been compromised by operations staff taking diverted phone calls. I do not accept this to be a legitimate basis for backfilling vacant clerical positions in all circumstances. Indeed, Mr Wilson's evidence (agreed to by the Union) was that vacant clerical positions had never been automatically backfilled. 144 Mr Parmeter gave an example of a detainee he had inadvertently allowed to go on a day trip as an example of what happened when a vacant Assistant Manager's position had not been backfilled. He agreed in cross examination it may simply have been an error by the person acting in the role and not necessarily related to backfilling. Opportunities to act in higher grades 145 As to the second issue, the overwhelming evidence of the Union's own witnesses did not demonstrate any "consistent erosion" in acting up opportunities for the staff. On the contrary, it would appear that all the Union witnesses who gave evidence about this matter have had numerous opportunities to act up. 146 The evidence demonstrated no real reduction in promotional opportunities for senior managers. For example, Ms Arnold, a Unit Manager, had backfilled in a higher position on 30 days in the 12 months from January 2003 to January 2004. Making a distinction of whether it was 30 days on 30 separate occasions is to my mind, not the point. It is, as Ms Arnold suggested, the opportunities which backfilling provides which is the issue for her. I am not convinced that she has been hampered, held back or disadvantaged in any way. 147 Likewise Ms Pearson, in the same period, acted up on 58 occasions. Her evidence was that she had been provided with "good opportunities" to act up. Mr Parmeter, in the same period acted up on 69 occasions. Similarly, I cannot see how Ms Pearson and Mr Parmeter's opportunities have been diminished or hampered. Accordingly, I find that this leg of the Union's case must fail. 148 For completeness, I conclude that there was no sound evidentiary base for the grant of the Unions' application based on an increased workload for staff or a reduction in the quality of client services. On this last point, the evidence of Mr Perkins as to the failure to fill three psychologist/counsellor positions for 21 weeks in 2003 was clearly an aberrant, extraordinary situation. In any event, the replacement of such staff is not always readily obtainable and is restricted by the availability of appropriately qualified specialist staff. 149 It follows that the Union's case has not been made out and the application must be dismissed. In any event. I note that the parties have commenced negotiations for a new Award. These negotiations will include, no doubt, the issue the subject of these proceedings. In my view, that is the appropriate forum for the negotiations on this matter to be progressed. 150 These dispute proceedings are concluded. Peter J Sams AM Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.