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 New South Wales (No 2) [2012] NSWIRComm 78 Hearing dates: 18 July 2012 Decision date: 19 July 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: Recommendations made Catchwords: INDUSTRIAL DISPUTE - Changes to operational model of Grafton Correctional Centre - Considerable downsizing of staff - Staff transitional issues - Selection process - Voluntary redundancies - Availability of new Management Plan - Compensation issues - Relevance of personal circumstances - Meeting of Union delegates - Recommendations made Category: Procedural and other rulings Parties: Department of Attorney General and Justice - Corrective Services New South Wales (Notifier) Public Service Association and Professional Officers' Association Amalgamated Union 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 STATEMENT AND RECOMMENDATION 1On 12 July 2012 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 dispute came before the Commission on the same day when the Commission made the following Recommendation: (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; 3The Recommendation was complied with and accordingly, the Commission met with the parties in a compulsory conference on 16 July. At that Conference the PSA identified a number of issues relating to the changes at Grafton and how those changes affected prison officers. The Department addressed some of those issues, but others required further consideration. The parties were requested to consider their respective positions, meet to further discuss those positions and report back to the Commission on Wednesday 18 July 2012. Issues 4When the parties reconvened before the Commission the PSA raised the following matters: Management Plan for Grafton 5The PSA sought a copy of the Plan as soon as possible. 6The Commission recommends the Management Plan be provided to the PSA by close of business on Friday 20 July 2012. Selection Process 7The changes at Grafton involve considerable downsizing of staff required to man the Centre. Consistent with the requirements in the Public Service the Department announced its intention that officers to remain at Grafton would be selected on a merit and equity basis. This would involve the relevant staff member forwarding a written submission by a nominated date and the member would then be subject to an interview by a selection panel. The selection panel would comprise a nominated community member, an independent Corrective Services General Manager and an officer from the Department of Attorney General and Justice. A union official would be entitled to sit in as an observer. The submission and interview would constitute 50 per cent of the staff member's assessment. Staff would be required to nominate their options in order of preference - whether to stay at Grafton, transfer to another centre or take a redundancy package. Staff would also be invited to identify any special circumstances they would like the interview panel to take into consideration including personal, family and financial circumstances. In addition, the Department proposed that staff members provide two referee reports that would constitute 30 per cent of the assessment. Proven disciplinary matters during the past 12 months would constitute 10 per cent and unsupported sick leave would constitute 10 per cent for five or less unsupported days, five per cent for more than five unsupported days where mitigating circumstances were supported by medical evidence and nil for more than five days unsupported sick leave. 8The PSA raised a number of concerns relating to the process for selecting staff members to remain at Grafton. The PSA took particular exception to staff having to provide referee reports constituting 30 per cent of the assessment. The referees would be two persons chosen by the staff member. The referees would be, essentially, officers more senior than the staff member and would be required to rank the staff member on a scale of one to five (poor to excellent) according to five critera: reliability, teamwork, inmate management skills, flexibility and communication, with provision to make further comments that would be rated from zero to five. 9The PSA's concern is that personality considerations might enter into the referee's assessment and the assessment would not be objective. In the non-custodial area, for example, there is really only one manager that could fulfil the referee role and the PSA indicated that it was known the manager had a low regard for the performance of certain officers, but that this opinion was a personal one and had not been substantiated in any way. 10The proposed process does present some problems. One can well understand the reluctance of staff to be subjected to a process where 30 per cent of their assessment will hinge on the referee's reports that may not be objective. On the other hand, in the absence of a senior person on the selection panel with knowledge of the performance and conduct of individual staff members at Grafton and who is accepted as being unbiased and objective, the panel would have difficulty in making any assessment about conduct and performance if there are no referee reports upon which the panel could rely. The Department has given the referee reports a weighting of 30 per cent because apart from what the staff member may say to the selection panel the only other source of information about the member's conduct and performance is the referee's report. I note, however, the Department proposes a weighting of 50 per cent for the applicant's written submission and the interview, this exceeding the weighting given to the referee's report by 20 per cent. 11It is not a matter of simply having regard to the fact that a staff member may have served at the Centre for 20 years and that proves he or she is immediately meritorious. That may be so, but there may be many more applicants for the positions at Grafton than there are positions available. That necessitates a selection process based on merit and equity. Assessments will have to be made of individuals and choices made between them. There has to be some objective basis upon which those choices can be made according to merit and equity. 12It will be important that panel members need to be aware of merit selection principles and standards including ethical behaviour. These principles and standards include the following: Impartiality - all stages of the recruitment and selection process must be conducted impartially and objectively. Accountability - those involved in the recruitment and selection process must be accountable for all their decisions and must ensure proper records are kept to support those decisions. Competition - the pool of potential applicants must be maximised to the extent practicable and appropriate. Openness - the factors impacting on recruitment and selection decisions must be clear to those involved. The process by which decisions are made must be transparent. Confidentiality must be maintained. 13The convener of the panel must ensure that the panel in arriving at a recommendation considers all the available evidence for each applicant, including their written application, interview performance, reference feedback, personal circumstances including special hardship and any other relevant assessment. 14It seems to me that the parties need to give consideration to one of the following options applying: (a) the parties adopt the merit selection process that applies generally in the public sector; (b) the parties agree on a person (or persons) to sit on the panel who has knowledge of the applicants' conduct and performance. In those circumstances, referee reports would not be a part of the process unless an applicant chooses to submit a referee's report and/or a character reference. If this option is adopted an applicant's written submission would be important - a simple statement showing qualifications and service would hardly be adequate unless the applicant was confident his or her abilities, experience, qualifications, standard of work performance and personal attributes could be adequately articulated in the interview process; (c) the selection process proposed by the Department applies provided that: (i) the referee's report is made available to the applicant prior to undertaking the interview; (ii) if any inconsistency arises between the referee's report and the panel's assessment of the candidacy of the applicant it is for the panel to deal with that inconsistency and the referee's report is not to be taken at face value. If it is necessary for the panel to make further inquiries it should do so; (d) the selection process proposed by the Department applies. 15In relation to sick leave and disciplinary matters, these are relevant considerations in a merit selection process and in the Commission's view what the Department proposes is fair. Of course, any point system cannot be rigidly inflexible and, as personal circumstances are to be taken into account, there may well be an explanation as to why some sick leave taken was unsupported. The selection panel would need to take that explanation into account. Expression of interest in redundancy from officers in other Centres 16The Department has indicated that it will accept expressions of interest from officers in other Correctional Centres to take voluntary redundancy, which may make positions available in those other Centres for officers from Grafton. The Commission accepts that the Department has the right to manage those expressions of interest in such a way as to avoid compromising its ability to run the relevant Centre in accordance with proper standards. 17The Commission recommends that the Department expedites the process for determining whether a Grafton staff member is able to fill the vacancy in another Centre created by another staff member in that Centre taking voluntary redundancy and that in any event the process take no longer than four weeks. Written right of return 18The Department has indicated it will provide to those staff who require it, a written right of return to Grafton. Compensation 19The PSA indicated that a small number of staff were transferred to Grafton after November 2011 at a time when the changes to Grafton were under active consideration by the government. The transferred staff were not advised of this. The PSA claim that such staff should be compensated for the cost involved in having transferred to Grafton only to find they no longer have a position there. 20The Commission recommends the PSA provide to the Department details of the staff involved and the amount and basis of any compensation claimed. The Commission further recommends that the Department gives genuine consideration to the claims for compensation and that any reasonable claim is met or, alternatively, makes a recommendation to government that reasonable compensation should be provided. Individual circumstances 21The Department accepts that it must have regard to individual circumstances including special hardship. The Commission wishes to emphasise the importance of individual circumstances in the selection process. Staff members and their families may suffer enormous upheaval. With the specialised skills that come with working in Correctional Centres and the lack of job opportunities in the Grafton area, officers and their families may be forced to sell their home and move out of the area in search of other employment; others may have strong compassionate grounds for needing to stay in Grafton. These are matters to be taken into account by the panel. Meeting of delegates 22The PSA is proposing to hold a meeting of its delegates from Correctional Centres in the State on 25 July 2012. The Department has indicated it will pay the delegates for a day provided that the PSA pays travel and other ancillary expenses. However, the Department has indicated it is under considerable cost restraints and it could avoid the cost of staff replacement on overtime and the like if the meeting was held after the present roster ran its course on 13 August 2012. 23The PSA, in my opinion, has acted quite responsibly in this dispute thus far in the face of an unheralded and very significant downsizing of staff at Grafton. There is undoubtedly considerable anxiety amongst prison officers as to what the future might hold for the prison system and what progress is being made regarding the transition at Grafton. 24In my opinion, it would be advisable and I so recommend that the PSA be permitted to hold its delegates' meeting sooner rather than later in order to avoid the problems associated with a lack of communication and to enable the PSA to continue to manage the matter responsibly. If the meeting is not held until a month's time it will only foster uncertainty and misinformation in the meantime. Future proceedings 25As I have indicated, the PSA has taken a responsible approach to this matter and is obviously attempting to work in the best interests of its members in a difficult environment. For its part, the Department has shown a commendable willingness to accommodate the PSA to the extent it is permitted and continues to be prepared to address concerns regarding the selection process and other matters. 26The parties are to consider this Statement and Recommendation. The parties are given liberty to apply to the Commission on short notice if it is considered the Commission can offer further assistance. ********** 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: 19 July 2012