Re Crown Employees (Correctional Officers, Department of Corrective Services) Award 2007 for Kempsey, Dillwynia and Wellington Correctional Centres (No 2) [2015] NSWIRComm 38

Industrial Relations Commission New South Wales Medium Neutral Citation: Re Crown Employees (Correctional Officers, Department of Corrective Services) Award 2007 for Kempsey, Dillwynia and Wellington Correctional Centres (No 2) [2015] NSWIRComm 38 Hearing dates: 19 June 2013; 3 and 4 April 2014; 16, 17, 18 and 19 March 2015; 11 June 2015 Date of orders: 02 December 2015 Decision date: 02 December 2015 Jurisdiction: Industrial Relations Commission Before: Kite AJ Decision: The PSA's application for variation is refused Catchwords: AWARD – application to vary award - Full Bench on referral determined threshold questions on costs savings flowing from Memorandum of Understanding – Full Bench answered "no" – remitted substantive matter for disposition by single member – subject of amended application –three issues for determination – whether variation should be made to provide for equitable rostering, provision of 12 rostered days off and payment of incidental allowance for Chief Correctional Officers and Principal Correctional officers – whether any such variation will result in increased "employee-related costs" – whether the increase in "employee-related costs" will exceed 2.5 per cent "cap" imposed by cl 6(1)(a) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 so as to require demonstration of "employee-related cost savings" – presumption that existing award provides for fair and reasonable conditions of employment – assumption that officers under relevant award are "equivalent classifications" to those in another award – no evidence explicitly directed to establishing equivalent classifications – award regulates three correctional centres under separate award – classifications have identical annualised salaries – award variation principles – evidence suggests classifications not identical SPECIAL CASE – Arbitrated Case – Special Case Principles – historical context – contended "long-standing anomalies in conditions" – evidence suggests negotiations did not miscarry – little to no evidence setting out background to making of separate award in 2005 – award reviewed in 2007 and 2012 – no explanation why concerns were not raised in 2007 – terms of award suggest subject matters in this application were considered and dealt with in a particular way – not satisfied the positions are equivalent – in light of evidence cannot conclude existing conditions are not fair and reasonable – presumption not rebutted - special case not made out – application refused JURISDICTION - Notice of Motion seeking permanent stay of the application – Motion not heard by Full Bench – unnecessary to determine question of jurisdiction and question of employee-related costs Legislation Cited: Industrial Relations Act 1996 Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 Cases Cited: Child Protection (Working with Children) Award 2014 [2015] NSWIRComm 8 City of Sydney Wages/Salary Award 2014 [2014] NSWIRComm 49 Crown Employees Wages Staff (Rates of Pay) Award 2014 [2015] NSWIRComm 7 Operational Ambulance Officers (State) Award [2015] NSWIRComm 17 Re Crown Employees (Correctional Officers, Department of Corrective Services) Award 2007 for Kempsey, Dillwynia and Wellington Correctional Centres [2014] NSWIRComm 44 Re Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 [2012] NSWIRComm 122 Re Health Employees Pharmacists (State) Award [2003] NSWIRComm 453; 132 IR 244 Re Storeworkers – IGA Distribution Pty Limited New South Wales Distribution Centres Award 2002 [2002] NSWIRComm 156 Secretary of The Treasury v Public Service Association & Professional Officers' Association Amalgamated Union of NSW [2014] NSWCA 138 State Wage Case 2010 (No 2) [2010] NSWIRComm 29; 206 IR 218 Category: Principal judgment Parties: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (Applicant) Corrective Services NSW (Respondent) Representation: Counsel: M Gibian of counsel (Applicant) J V Murphy of counsel (Respondent)