Industrial Relations Commission New South Wales Medium Neutral Citation: Department of Attorney General and Justice - Corrective Services New South Wales v Public Service Association and Professional Officers' Association Amalgamated Union of NSW [2012] NSWIRComm 75 Hearing dates: 12 July 2012 Decision date: 12 July 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: The Commission strongly recommends the following: (1)that any stop work meetings tomorrow are limited to one hour; (2)arising out of the meetings all bans presently in place are lifted immediately upon the cessation of the meetings; (3)no further industrial action is to occur in relation to this dispute whilst the parties are engaged in conciliation before the Commission; (4)both parties commit to engaging in conciliation in good faith; (5)the PSA to advise the Commission of the outcome of the meetings by 3.00 pm tomorrow, 13 July; (6)on being advised that recommendations (1) to (4) hereof have been complied with the Commission will convene a compulsory conference of the parties at 10.00 am Monday 16 July. In the event the bans are not lifted the conference will not proceed; (7)liberty to apply on short notice. Catchwords: INDUSTRIAL DISPUTE - Notification of industrial bans in protest at the downsizing of Grafton Correctional Centre - Employer sought immediate lifting of bans - Recommendation that bans be lifted - Parties referred into conciliation Cases Cited: Teachers Federation Re, [1968] AR 410 Teachers Federation v PSB [1968] AR 507 Category: Procedural and other rulings Parties: Department of Attorney General and Justice - Corrective Services New South Wales (Notifier) Public Service Association of New South Wales (Respondent) Representation: Mr J Murphy of counsel (Notifier) Mr S Little, Industrial Officer (Respondent) File Number(s): IRC 777 of 2012 RECOMMENDATION 1This morning, the Department of Attorney General and Justice - Corrective Services New South Wales (Department) notified the existence of an industrial dispute involving the Public Service Association and Professional Officers' Association Amalgamated Union of NSW (PSA) and members of that Union in relation to "state wide industrial action in protest of the Government's decision to change the operational model for Grafton Correctional Centre". 2The industrial action was said to involve the following bans: (a)movement of inmates (except for court escorts); (b)implementation of variable operational routines as set out in management plans for each centre; (c)case management of inmates; (d)assistance to facilitate the movement of inmates from Grafton Correctional Centre; (e)assistance to facilitate the removal of plant and equipment from Grafton Correctional Centre; (f)discussions with representatives from the HR branch regarding the willingness or otherwise of individual staff members to relocate to other positions within the state or accept a voluntary redundancy. 3The notification described the effect of the bans: (a)The ban on movements has an impact on the management of the correctional system in that inmates cannot be moved when their classifications change or to manage beds occupancy. This may lead to inmates being held in gaols that are inconsistent with their classifications. (b)Correctional officers have refused to allow moves from one Centre to another to facilitate medical appointments. This impacts on the management and/or diagnosis of health issues for inmates. (c)Bans on the implementation of the variable operational routine may lead to inmates being locked in their cells and not having access to rehabilitation and treatment programmes, industry activities and recreational activities. Bans on case management also impacts the daily operation of the centre and management of the inmates. 4There had been a ban on visitations to Correctional Centres, but this was lifted by the PSA. The bans on movements of inmates and plant from Grafton also no longer applied, but the other bans remained in force. 5The notifier sought an urgent hearing of the dispute. In support of that application an affidavit of urgency was filed by the Assistant Commissioner of the Sydney Metropolitan Region, Mr Brian Kelly. Mr Kelly deposed to the impact of the bans in the short and long term. Mr Kelly deposed that the bans constituted a risk to staff and inmates. 6The Department sought an immediate lifting of the bans. 7The PSA advised that the purpose of the bans was to protest at downsizing of Grafton and to attempt to apply pressure to the Government to change its position. The PSA said the decision to downsize had caught them completely by surprise, as it had understood the Government's position to be to continue with the Centre. The PSA indicated that together with community groups, it had met with the Government after the downsizing decision, but that the Government had remained firm in its decision. 8The PSA indicated there would be a Statewide two-hour stop work meeting tomorrow at 12 noon to report to members on the present state of the dispute. Consideration 9The bans have been imposed in protest at the NSW Government's decision to downsize Grafton Correctional Centre and turn it into a remand and reception centre. The downsizing has attracted widespread publicity and provoked community anger at the move and over a failure by the Government to consult before making the decision to downsize. Nevertheless, the Government appears to be pressing ahead with its decision. 10This Commission has no power "to issue imperatives to Parliament as to how it should legislate or to Cabinet as to how it should distribute the economic resources of the State...": Re Teachers Federation [1968] AR 410 at 412, affirmed on appeal in Teachers Federation v PSB [1968] AR 507. That is to say, this tribunal has no power to direct the Government by order, award or otherwise not to proceed with downsizing Grafton. 11The only step that is available to the Commission, in the circumstances, is to engage with the parties using its conciliation powers in an endeavour to ameliorate or mitigate the effect on employees of the Government's decision where those effects are found to be unreasonable, harsh or unfair or impact adversely on the safety of employees. 12The Commission will make itself available for that purpose. However, it is apparent the bans that remain are affecting adversely the operation of the prison system in the State including the provision of medical, mental health and legal services for prisoners, inter-gaol escorts thereby causing reception centres to fill to the point that the notifier will not be able to receive offenders in custody from police, case management of prisoners and lockdowns. 13Notwithstanding the understandable anger felt amongst prison officers at the Government's failure to consult with them over the decision to downsize, and their concern at the effect of downsizing on the employment of officers at Grafton, and at the lack of other employment opportunities in the Grafton area, the Commission cannot condone the continuation of the bans. The bans constitute disruption to the prison system and I am informed by way of a sworn statement the bans will constitute a risk for staff and inmates if the bans continue for any length of time. Given that the Commission is prepared to provide a forum in which the PSA can air its grievances, with the possibility of achieving some relief, the Commission would recommend to the PSA that the bans be lifted. 14The Commission notes that the PSA intends to hold stop work meetings tomorrow of two hours' duration. That is likely to be disruptive in itself. However, the PSA has indicated that it is critical to the future course of the dispute for the meetings to occur. 15The Commission strongly recommends the following: (1)that any stop work meetings tomorrow are limited to one hour; (2)arising out of the meetings all bans presently in place are lifted immediately upon the cessation of the meetings; (3)no further industrial action is to occur in relation to this dispute whilst the parties are engaged in conciliation before the Commission; (4)both parties commit to engaging in conciliation in good faith; (5)the PSA to advise the Commission of the outcome of the meetings by 3.00 pm tomorrow, 13 July; (6)on being advised that recommendations (1) to (4) hereof have been complied with the Commission will convene a compulsory conference of the parties at 10.00 am Monday 16 July. In the event the bans are not lifted the conference will not proceed; (7)liberty to apply on short notice. ********** 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. Decision last updated: 12 July 2012