Industrial Relations Commission New South Wales Medium Neutral Citation: Service NSW (Employment) Award [2013] NSWIRComm 19 Hearing dates: 11, 13, 14 and 18 March 2013 Decision date: 19 March 2013 Jurisdiction: Industrial Relations Commission Before: Walton J, Vice-President Decision: I recommend the parties adopt Appendix A in settlement of the application brought in this matter. The matter will be listed at 12.45 pm Thursday 21 March 2013 to receive the parties' response to this Recommendation and then, in the light of such submissions, to deal with the further disposition of the proceedings. Catchwords: AWARD - application for a new award - programme fixed for arbitration - adjournment of arbitration for further conciliation - Recommendation made in course of conciliation Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) State of New South Wales and Director-General of the Department of Premier and Cabinet (Respondents) Representation: A A Hatcher SC (Applicant) S B Benson of counsel (Respondents) A Grayson (Applicant) P Robinson (Respondents) File Number(s): IRC 1270 of 2012 RECOMMENDATION 1The service delivery model for government agencies in New South Wales is presently undergoing a metamorphosis from a multi agency service delivery scheme into a model operated through a new and singular agency, known as 'Service NSW', which will deliver a range of non-complex, high volume transactions on behalf of those agencies. 2That new service delivery model emerged from the New South Wales Government's 'Simpler Government Service Plan'. It is designed to offer a 'consumer-centric', one-stop government service model in New South Wales. 3The principal agencies affected by this transformation are Roads and Maritime Services, Births Deaths and Marriages and Fair Trading. 4The controversy laying at the epicentre of the present application brought by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('the PSA') to establish a new award, and the preceding dispute proceedings notified by that organisation, concerns differences over the appropriate procedures by which employees, who desire to transfer to the new agency, may do so. A related consideration is just how and to what extent the proposed operating systems and potential new business cultures arising under or out of the new model may or should affect the recruitment process for the employees of Service NSW, particularly in the case of applicants from those existing government agencies. The PSA raises questions in these proceedings about the fairness and reasonableness of the processes envisaged by the new agency for the selection of its staff. 5As mentioned, this matter concerns an application by the PSA to establish a new award which the PSA intends to be known as the 'Service NSW (Employment) Award'. That application was primarily directed to the regulation of the selection and recruitment processes adopted by Service NSW and the establishment of an effective appeal mechanism in the case of disputes over the non-selection of an existing employee of another government agency under a merit selection process. Those proceedings had their genesis in the notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 ('the Act') on 14 November 2012 (Matter No IRC 1150 of 2012) by which the PSA raised similar issues to those found in this matter. 6The industrial dispute proceedings were the subject of an extensive conciliation process before Staff J. His Honour issued two Recommendations, on 28 November and 4 December 2012 respectively. Whilst not resolving the matter (his Honour eventually issued a Certificate of Attempted Conciliation which triggered the present proceedings), his Honour's Recommendations continued to act upon the current proceedings such that they were instrumental in the encouragement of a further round of conciliation and the production of further agreements reflected in this Recommendation. It must be stressed, however, that this Recommendation arises from a further conciliation, initiated by the parties in the course of the current proceedings. (The initiation was, in fact, taken shortly before the scheduled arbitration of the matter.) 7In the final analysis, this Recommendation emerges from the aforementioned historical processes and is directed to the resolution of the issues to which I have earlier described. 8Some little more should be said about the background to the Recommendation and the reasons for its issuance before it is formally delivered. 9The procedure intended to be adopted by Service NSW to secure staff (as matters developed) was described in the contentions made on behalf of the agency, as follows: Fairness will be achieved by the cumulative effect of the following factors: (i) Affected staff at existing agencies will be offered the choice as to whether they wish to apply or lodge an expression of interest for positions within Service NSW; (ii) If such affected staff elect not to lodge an expression of interest then they will be either redeployed within their respective agency or declared an excess employee and managed under the Managing Excess Employees Policy; (iii) In the alternative, if such affected staff elect to lodge an expression of interest with Service NSW they will be afforded "priority consideration" for relevant new positions founded on the notion of "local jobs for local people". For example, for a directly affected employee whose substantive position is based at Orange, such an employee will be given priority consideration at Priority Stage 1(a) for Service NSW positions at Orange at the same salary band. For a directly affected employee whose substantive position is based at Liverpool, Penrith, Parramatta or Chatswood, such employees will be given priority consideration at Priority Stage 1(a) for Service NSW positions at Liverpool, Penrith, Parramatta and Chatswood at their same salary band respectively. Priority is first assessed upon the affected employees' current substantive location. There are further stages of priority before final recourse will be made to external recruitment; (iv) Direct appointment of staff across a number of agencies, as proposed by the PSA Application, may not be practical nor equitable, especially having regard to the fact positions may be partially, substantially or wholly affected to varying degrees across affected agencies; (v) If a member of staff at an affected agency feels aggrieved by his or her non-selection, Service NSW is prepared to implement an Assisted Appointment Review Process, with the safeguards recommended by Justice Staff being implemented. Unfortunately this recommendation did not meet the approval of the PSA and accordingly has not at this stage been taken any further. 10In addition to the Recommendation of Staff J mentioned in the respondents' contentions, one other aspect of his Honour's Recommendations should be alluded to at this juncture. In his first Recommendation (of 28 November 2012), his Honour recommended: I have conferred with the parties in private conference and I propose to make the following recommendations: 1. New positions in Service NSW should be divided into two categories: Category A will be comprised of positions which include or require new skills and responsibilities for the occupant and where there is no existing equivalent position in the Roads and Maritime Services; New South Wales Fair Trading; the Department of Attorney General and Justice or any other agency, such positions will be subject to the recruitment process proposed by the Department of Premier and Cabinet. Category B will be comprised of those proposed positions in Service NSW which do not require or involve new skills and responsibilities for the position, for example, front line customer service positions. Such positions will have an existent or current equivalent position in the Roads and Maritime Services; New South Wales Fair Trading; the Department of Attorney General and Justice; and the Office of Environment and Heritage. Employees who fall within this category should be offered positions in Service NSW, subject to standard checks in respect of performance, skills and conduct matters. 2. In light of the New South Wales Government establishing Service NSW, I would recommend that all manager positions should be captured and should fall within category A, regardless of whether they involve new skills and responsibilities or not. It follows, as I have already observed, that such positions would be subject to the recruitment process as proposed by the Department of Premier and Cabinet. I propose to list this dispute for report and further compulsory conference at 10am on Tuesday, 4 December 2012. In that respect I would further recommend to the Department of Premier and Cabinet that it does not commence the recruitment process until there has been a report back to this Commission on 4 December 2012. 11The further conciliation in the current proceedings was intensive and involved the parties undertaking negotiations in a manner which left 'no stone unturned' in the pursuit of a solution to the impasse giving rise to the application. I have taken those exchanges into account in reaching my Recommendation, together with the Recommendations of Staff J, written submissions filed by the parties, some short oral submissions given during the course of the conciliation and various parts of the material filed in the proceedings (to which I was taken). 12It must be noted that many issues were, in fact, resolved by the representatives of the respective interests during the current conciliation process. However, some were not, resulting in the necessity for a Recommendation (to resolve issues in dispute) to be issued. Nonetheless, I have taken the view, consistent with the parties' approach to negotiations, that the Commission should issue a Recommendation directed to the entirety of the matters under consideration, whether agreed (as to particular elements), or the subject of a Recommendation as to disputed matters. By this means, the parties may consider the Recommendation as part of a 'package' which should settle the proceedings. 13Thus, the culmination of both agreed matters and those the subject of the Recommendation (issued by the Commission extempore on 18 March 2013) are contained in the document attached hereto and marked 'Appendix A'. Ultimately, the Commission will, as I noted, recommend the entirety of Appendix A. 14In my view, Appendix A represents a fair balance between the interests of the new agency in maintaining the integrity of its new operational model (and concomitant employment policies and practices) and the interests of employees of existing agencies in wishing to secure ongoing employment with the State of New South Wales via its new agency, under a fair and reasonable selection criteria. 15That balance has been achieved by the proposed establishment of a recruitment and selection procedure and review process which, I consider, represents a reasonable solution in the present context. 16I recommend the parties adopt Appendix A in settlement of the application brought in this matter. 17The matter will be listed at 12.45 pm, Thursday 21 March 2013 to receive the parties' response to this Recommendation and then, in the light of such submissions, to deal with the further disposition of the proceedings. ********** APPENDIX A 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: 20 March 2013