Industrial Relations Commission of New South Wales CITATION: Department of Corrective Services and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2009] NSWIRComm 212 Department of Corrective Services (Notifier) PARTIES: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Respondent) FILE NUMBER(S): IRC 759 of 2009 CORAM: Walton J Vice-President CATCHWORDS: INDUSTRIAL DISPUTE - conciliation - correspondence from Minister for Corrective Services - savings required in court security and escort services of Department of Corrective Services - prospect of outsourcing - further agreements - shortfall to savings target - full satisfaction of target required - appropriate for Recommendation for further saving to resolve shortfall - Recommendation made as to accrual of leave - combination of agreement and Recommendation gives full satisfaction of target - Statement and Recommendation issued - proceedings concluded. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 13/8/09, 14/8/09, 25/8/09, 30/9/09, 1/10/09, 2/11/09, 5/11/09 DATE OF JUDGMENT: 10 December 2009 Mr J Murphy of counsel (Notifier) Crown Solicitor's Office LEGAL REPRESENTATIVES: Mr S Turner and Mr S Little (Respondent) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Vice-President Thursday 10 December 2009 Matter No IRC 759 of 2009 DEPARTMENT OF CORRECTIVE SERVICES AND PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES Notification under s 130 of the Industrial Relations Act 1996 STATEMENT (NO 3) AND RECOMMENDATION [2009] NSWIRComm 212 1 By correspondence from Mr John Robertson, MLC, the then Minister for Corrective Services, dated 20 May 2009, there was notified, pursuant to s 130 of the Industrial Relations Act 1996 ('the Act'), the existence of an industrial dispute as to a range of industrial issues surrounding the prisoner escort and court security functions undertaken by the Department of Corrective Services. 2 On Friday 11 September 2009, the Commission issued Statement (No 2) in the proceedings: Department of Corrective Services and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2009] NSWIRComm 149. 3 In that Statement, the Commission made, inter alia, the following observations: It is useful to briefly restate the background to these proceedings. The Minister requested the Department of Corrective Services ('the Department') and the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('the PSA') identify and implement strategies that would realise savings of $5 million per annum in relation to the Department's inmate escort and court security functions within six months. He further advised that, should the savings through efficiencies not be identified and implemented within six months, the Government intended to outsource inmate escort and court security service functions to the private sector. On 9 September, the Commission received a document from Mr S Turner, Assistant General Secretary of the PSA, which communicated the agreed position of the parties arising out of the first and second stages of the conciliation process. That agreement will result in changes in three aspects of the operation of CESU: the utilisation of casual correctional officers within the court escort and transport function of the Department, arrangements for Temporary Court Security Officers and the hours of operation of 24 hour court locations. The savings deriving from those changes were fully costed and substantial. The changes agreed by the parties constitute tangible, recurrent savings in the CESU's budget. They represent savings, in total (when rounded), of $3,949,969. Thus, the savings resulting from this process represent nearly 80 per cent of the required savings identified by the Minister. It is, perhaps, needless to say, in the light of these outcomes, that the process has, to date, been entirely successful. This has occurred due to the diligence of the representatives of the parties in their application to the task at hand and the high level of co-operation between the parties. The process demonstrates the successful outcomes that may be obtained by parties maturely and responsibly working in partnership to achieve mutual goals. Some final observations are necessary. First, it may now be reasonably expected that the target savings will be reached within the timeframe specified by the Minister. Secondly, the arrangements for a reduction in the hours of operation of 24 hour court locations will require some refinement at an operational level for each area affected, but not in a way that would undermine the integrity of the agreement reached between the parties. There may be a further savings measure for this area but that consideration will, if required, be pursued in the next stage of the process.... The final stages of the conciliation process will commence on 30 September and continue on 1 October. A further date for conciliation has been provisionally fixed for 2 November. The process will conclude by 26 November, with a further Statement being issued by the Commission prior to that date. 4 Due to some difficulties encountered at the resumption of the proceedings, the conciliation process did not commence in earnest until 2 November. In consequence of the preliminary discussions which occurred on 30 September and 1 October, however, a further gain was obtained early in the resumed proceedings. An agreement was reached to use, under certain conditions, casual correctional officers in a risk intervention process (monitoring persons in a court cell complex who were identified as being at risk of self harm). That change resulted in a further estimated saving of $512,717. This brought the total savings to about $4.46 million, or nearly 90 per cent of the targeted savings. This was the first concession by the parties in the third and final stage of the conciliation process. 5 The savings achieved (up to and including the risk management process) were all agreed matters arising from the conciliation process. This is not to suggest that any element of the savings was easily obtained, but, rather, the advances materialised as a consequence of the diligent and co-operative efforts of the parties in that conciliation process. 6 I should pause, at this point, to include a note of commendation for those appearing for or representing the respective interests. Mr S Turner, Assistant General Secretary of the PSA, appeared with Mr S Little, Senior Industrial Officer, for that Union. They were principally assisted by Mr S O'Brien, Assistant General Secretary, PSA, Mr M Bindley, Chair, Prison Officers Vocational Branch (POVB) and Mr S McMahon, Vice President, Country POVB. Mr J Murphy, of counsel, instructed by Mr P Robinson, Crown Solicitor's Office, appeared for the Department. They were assisted by Mr D Rodgers, Acting Deputy Commissioner, Offender Management & Operations, Mr P Irving, Assistant Commissioner, Probity & Staff Development, Mr B Kelly, Assistant Commissioner, Metropolitan Region, and Mr M Hovey, Deputy Superintendent, Logistics & Strategic Operations. 7 No less measure of co-operation, diligence, maturity and professionalism was demonstrated by the parties in identifying and seeking to obtain the final elements of savings to achieve the $5 million target. However, those final steps proved particularly difficult and taxing for the parties' representatives. 8 A further agreement was reached (with some difficulty) late in the proceedings. That agreement consisted of the removal of two Assistant Superintendent positions from Central Business District Courts, and resulted in a further saving of $254,733. The total savings consequently grew to approximately $4.72 million, or 94 per cent of the targeted savings. Unfortunately, the parties were unable to find any agreed measures beyond that concession. 9 I have given consideration as to whether the Commission might declare that this outcome represents sufficient satisfaction of the mutually agreed objectives (to obtain the targeted savings) which have underpinned the process now before the Commission. However, I have formed the view that this course should not be taken, even though the gap between the agreed savings and the targeted savings may be described as modest, for the following three reasons. 10 First, the proceedings have been conducted before the Commission under the clear understanding that the targeted savings would be achieved in full within the designated time frame. The gap between the achieved and targeted savings is not so small as to allow a finding that the parties had effectively satisfied that obligation. 11 Secondly, the full obtainment of the goal would be most consistent with the spirit of the undertaking engaged in by the parties and the conduct of their negotiations. 12 Thirdly, I consider that the additional saving which I intend to recommend will fairly balance the concessions given by the respective parties in the final, and most difficult, round of discussions. 13 Having reached that conclusion, I am also mindful that the parties have had 'rung out' of them every last concession in the conciliation process, so that any further attempt to make up the shortfall in savings by that means would be pointless. I propose, therefore, to make a Recommendation for a further saving sufficient to make good the targeted savings in full. Naturally, I have selected a saving, in that respect, which was the subject of detailed discussion (and costing) in the conciliation process. 14 I recommend that a further saving be adopted and implemented, additional to those previously documented in my first two Statements or recorded as an agreed matter in this Statement. That saving will derive from a review of the establishment of court staffing based on a change to annual leave accrual rates. A further $283,454 will be produced by this saving, thereby resulting in a total saving of $5,000,873 (which is, plainly, greater than the targeted saving). The terms of that saving are set out in Tab A6 of the attachment to this Statement and Recommendation. (The attachment was prepared by the parties to the proceedings under my direction and contains a description of, and the terms and costings of, all savings agreed to or, in the case of Tab A6, recommended by the Commission. I note that I have made some minor adjustments to the document to conform with this Statement and Recommendation.) 15 Before concluding this Statement and Recommendation, one further matter requires attention. The timetable for this process contemplated completion by 26 November 2009. A delay has been occasioned because the parties were allowed additional time to negotiate in order to explore a further initiative for settlement advanced by the PSA (it will be clear that this initiative did not result in an agreement). The Commission gave approval for that extension of time and the delay should not, therefore, be taken as, in any way, detracting from a conclusion that the parties have fully satisfied the conditions set out in the then Minister's letter of 20 May 2009 as to 'time' in order to avoid privatisation of the subject area. 16 In my view, the parties have fully co-operated with the process before the Commission and will have satisfied the conditions of the Minister's correspondence both in savings and time (so as to avoid privatisation) by their agreements recorded in the attachment hereto (which concern all items other than Tab A6 and costings relating to that item) and their acceptance of this Recommendation. 17 I commend the savings referred to in the attachment hereto as representing genuine and fully costed improvements in the operations of prisoner escort and court security functions of the Department of Corrective Services which meet the stipulations of the Minister's correspondence of 20 May 2009, (subject to acceptance of the aforementioned Recommendation) and conclude the proceedings accordingly. ______________________ 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.