CITATION : 2014 WAIRC 00349 CORAM : COMMISSIONER S J KENNER HEARD : WEDNESDAY, 19 FEBRUARY 2014; WRITTEN SUBMISSIONS 28 FEBRUARY AND 5 MARCH 2014 DELIVERED : MONDAY, 28 APRIL 2014 FILE NO. : CR 173 OF 2013 BETWEEN : WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS Applicant AND THE MINISTER FOR CORRECTIVE SERVICES Respondent Catchwords : Industrial Law (WA) – Decision of the respondent to forcibly transfer a prison officer – Harsh, oppressive and unfair – Allegations of negligent and careless performance of a prison officer’s duties – Commission has jurisdiction – Disciplinary inquiry held – Decision of the Prison Officers Appeal Tribunal – Proposed transfer for the good governance, good order and security of the prison – Principles applied – Operational needs – Appropriateness of the Commission in reviewing an operational decision – Order that the proposed forced transfer of the prison officer proceed 576 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Legislation : Industrial Relations Act 1979 (WA) ss 23(2a), 44(9) Prisons Act 1981 (WA) ss 7(3), 36(3), 98(1)(c), 108 Result : Declarations and order made Representation: Counsel: Applicant : Mr J Walker Respondent : Mr R Andretich of counsel and with him Ms T Borwick Solicitors: Respondent : State Solicitor’s Office Case(s) referred to in reasons: Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services (2013) 93 WAIG 1439 Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 01064 Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2014] WAIRC 00313 Reasons for Decision 1 The brief background to this matter was set out in my earlier reasons of 13 December 2013 dealing with the issue of whether the proposed management initiated transfer of Officer Ratten should proceed, despite the status quo provisions set out in cls 174.3 and 174.5 of the Department of Corrective Services Prison Officers’ Enterprise Agreement 2013. Given the circumstances then in existence, including the potential for a significant deterioration of industrial relations between the parties, the Commission declined to order that the status quo not continue: Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 01064. 2 The substantive merits of the claim brought by the Union on behalf of Officer Ratten have now been heard. The background to the present proceedings, including the disciplinary action against Officer Ratten, and the reasons for the proposed transfer of Officer Ratten from Casuarina Prison to Hakea Prison, were summarised in my earlier reasons. The issues for determination are set out in the memorandum of matters referred for hearing and determination under s 44(9) of the Industrial Relations Act 1979, which is in the following terms: SCHEDULE 1. The Union and the Minister are in dispute in relation to the proposed management initiated transfer of Prison Officer Daniel Ratten. Prison Officer Ratten is currently a prison officer at Casuarina Prison. It is proposed that he be transferred to Hakea Prison. The Union opposes the forced transfer and regards any such action as harsh, oppressive and unfair. 2. The proposed transfer arises as a result of a charge under Part X of the Prisons Act 1981 (WA) and a subsequent disciplinary inquiry held at the prison in December 2012 which found that Prison Officer Ratten, together with Prison Officer Phillip Clark, were negligent and careless in the performance of their duties. A penalty of a suspension from duty without pay and other entitlements for a period of six working days was imposed on both officers. 3. Both officers commenced an appeal against the findings to the Prison Officers Appeal Tribunal. The Tribunal’s decision delivered on or about 6 September 2013 dismissed the appeal. By letter of 1 November 2013 the Minister reissued its proposed transfer notice. 4. As a result of a further compulsory conference held before the Commission on 3 December 2013, the date of the proposed transfer was extended from 9 December 2013 to 16 December 2013. 5. The Minister wishes to proceed with a management initiated transfer in accordance with cl 140 of the Department of Corrective Services Prison Officers’ Enterprise Agreement 2013, to meet its operational needs and maintain good governance, good order and security of the Prison under s 36(1) of the Prisons Act. The Minister says he has a lack of confidence in Prison Officer Ratten’s ability to perform the inherent duties of a Prison Officer deployed at a maximum security prison. Specifically the ability of an officer to manage high risk prisoners and make sound decisions without supervision i.e. SHU/MPU prisoners. 6. The Union maintains that the Minister’s proposed forced transfer of Prison Officer Ratten is harsh, unfair and unjustified, having regard to the circumstances, his length of service and good record. The Union seeks an order of the Commission preventing the forced transfer of Officer Ratten. This order is opposed by the Minister. Preliminary issue – jurisdiction 3 A preliminary issue as to the jurisdiction of the Commission to deal with this matter was raised by the Minister. That matter being the existence of a public sector standard called “The Employment Standard”, which was said to invoke s 23(2a) of the Act, ousting the jurisdiction of the Commission in this matter. By agreement of the parties, the submissions raised in the present proceedings were adopted and incorporated into earlier proceedings, involving a proposed transfer of another prison officer in application CR 207 of 2013. In my reasons for decision of 17 April 2014 in that matter, the Commission concluded that its jurisdiction was not ousted by s 23(2a) of the Act: Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2014] WAIRC 00313. 4 I adopt my earlier reasons on this issue for the purposes of this matter. I therefore conclude that the Commission has jurisdiction to enquire into and deal with the present industrial matter. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 577 Disciplinary proceedings 5 Officer Ratten was charged with a disciplinary offence under s 98(1)(c) of the Prisons Act 1981. The charge arose from his actions on 21 February 2012 at Casuarina Prison. It was alleged that Officer Ratten, along with another officer, was negligent or careless in the performance of his duties as a prison officer, when transferring a high profile prisoner, Prisoner Mercanti, to the prison’s Multi-purpose Unit. It was alleged that Officer Ratten failed to be vigilant and aware of the security implications of his actions. 6 On 18 December 2012, the charge against Officer Ratten was heard by Superintendent Farlie, the presiding Hearing Officer. The Commission has before it, as exhibit R1, a copy of the transcript of the disciplinary hearing. I have had full regard to its content for the purposes of the disposition of the present matter. The Hearing Officer found that the charge against Officer Ratten was proven. A penalty of suspension from duty without pay and entitlements for six days was imposed. The disciplinary report and penalty imposed were validated by the then Chief Executive Officer and Corrective Services Commissioner, by letter of 22 January 2013. Also, in the same letter, the Commissioner expressed the view that he did not consider that Officer Ratten’s continued deployment at Casuarina Prison was appropriate, having regard to the circumstances of the incident. 7 Officer Ratten appealed against both the finding of the Hearing Officer and the penalty imposed, to the Prison Officers Appeal Tribunal under s 108 of the Prisons Act. On 5 September 2013, the Tribunal did not uphold Officer Ratten’s appeal, and confirmed the findings and penalty imposed. As to the proposed transfer of Officer Ratten, foreshadowed in the Commissioner’s letter of 22 January 2013, the Tribunal noted in its reasons for decision at p 16 that “The issue of deployment, imposed by the Commissioner, is a consequence of the outcome not a part of the sentence.” The incident 8 For the purposes of determining this matter, some understanding of the incident that led to the breach of discipline charges is necessary. The following is largely taken from the reasons for decision of the Tribunal of 5 September 2013. The background to the incident was described by the Tribunal at p 6 of its reasons as follows: Background The Prisoner being transferred was a well-known criminal identity with a reputation for violence in the community. However, it was not in dispute before the tribunal that within the prison system Prisoner Mercanti is well-behaved; on the relevant day, however, he was a prisoner designated as requiring at least one officer to escort him on transfer. ……………. The hearing officer found the following: On the 21 February 2012, Prisoner Mercanti was being transferred within the Prison. As Prison Officer Clark and Mercanti passed through the main entrance of the administration block, they were joined unexpectedly by Prison Officer Ratten. He had completed a training day and was hoping to find a meal in the MPU. At this point he chose to join the escort and accompanied Mercanti and Clark through the administration area until they reached the entrance to the office. The Visiting Justice’s office entry is in the same corridor as the office for the security manager and had been used for some considerable time in the movement of MPU prisoners to prevent them being exposed to the general prison population. Apparently this process has now changed as a direct consequence of the events leading to these charges. On arrival at the Visiting Justice’s office doorway the following matters are not in dispute: i) the transition from Visits to the Visiting Justice’s office; ii) Prison Officer Ratten joined the escort at the administration area entrance; iii) all officers involved in this matter are experienced and understood the requirements of escorts and managing MPU prisoners; iv) Senior Officer Hogan was seated at the desk of the SO office, facing the corridor towards the Visiting Justices’ office door; v) Prisoner Mercanti unexpectedly stopped at the Visiting Justices’ office door to talk to Senior Officer Hogan, who was sitting at the end of the corridor; vi) the security office held a range of weapons and tools which were readily available to any person entering the room; the escorting officers did not question Mercanti as to what or why he wanted or speak to Senior Officer Hogan once he’d been approached by Mercanti; vii) Senior Officer Hogan had been and remains the subject of multiple threats from outlaw motorcycle gangs and in particular from Prisoner Mercanti; viii) Prisoner Mercanti is a known violent offender, however he has not assaulted prison staff at Casuarina Prison; ix) and Senior Officer Hogan and Prisoner Officer Ratten have an interpersonal conflict. 9 The Tribunal referred to the testimony of Senior Officer Hogan before the Hearing Officer, to the effect that Prisoner Mercanti had threatened SO Hogan on a number of occasions. When Prisoner Mercanti appeared at the doorway of his office, SO Hogan was fearful of an attack by him. According to another officer, present at the time, Acting SO Chitty, both Officer Ratten and the other officer charged, Officer Clark, were distant from Prisoner Mercanti and not in a position to restrain him if he attacked SO Hogan. Before the Hearing Officer, this was disputed by Officers Ratten and Clark. Both said they were close to Prisoner Mercanti in accordance with the established procedures for prisoner escorts. However, the version of events described in the evidence of Acting SO Chitty was preferred by the Hearing Officer. 10 There were a number of matters in dispute before the Hearing Officer. These were conveniently summarised by the Tribunal on p 8 of its reasons as follows: 578 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. i) Prison Officer Clark and Prison Officer Ratten denied that Acting Senior Officer Chitty attended the scene at all; ii) Senior Officer Hogan and Acting Senior Officer Chitty were both emphatic that Acting Senior Officer Chitty did arrive on the scene while the interaction between Senior Officer Hogan and Mercanti unfolded; iii) whether Prison Officer Ratten showed himself to Senior Officer Hogan; iv) the placement of Prison Officer Ratten and Prison Officer Clark; v) there is some dissonance between the evidence of Prison Officer Ratten and Prison Officer Clark when they described where Mercanti was standing and the positioning of Prison Officer Clark whilst Mercanti was talking to Senior Officer Hogan; vi) the email statement made by Prison Officer Ratten sometime after the event has some obvious additions which could be construed as attempting to alter the record of the event; vii) and the very clear difference in stories which requires the inquirer, should he be able to make a determination, to find one party or the other to have misled the inquiry. 11 The Tribunal also referred to various parts of the Hearing Officer’s reasons and conclusions. At pp 9-11 of the Tribunal’s reasons for decision, a reference was made to the Hearing Officer’s observations and conclusions as follows: It was agreed in the inquiry that an officer, when participating in a two-man escort – and Prison Officer Ratten stated he had decided to stop and assist with the escort – would ensure an officer was positioned behind Mercanti at all times and another officer remained to the side or in front of him throughout the escort. In contrast to this, Acting Senior Officer Chitty describes the placement of the two officers as being with the VJ’s office, which is ahead of Mercanti and quite distant to him, to the point where he could not have been restrained if he had decided to attack Senior Officer Hogan. This speaks to the element of negligence. ……… Secondly, a failure of either officer to interject verbally when Mercanti spoke to Senior Officer Hogan is worrying. It was acknowledged that in Casuarina it is normal for staff to delay any immediate, unanticipated request for information from prisoners so as to control the timing and placement of that interaction. This delay was not instigated by either officer. ……… In coming to a determination based on the balance of probability, I assessed the credibility of Prison Officer Clark and Prison Officer Ratten as being in question, given their testimony differed as to the placement of Mercanti. ………. Therefore I find that Acting Senior Officer Chitty has been truthful and have discounted those parts of the evidence that Prison Officer Clark and Prison Officer Ratten have given which were in conflict with Acting Senior Officer Chitty’s (testimony). In reaching this determination it’s clear that both officers were distant from Mercanti, failed to interject when Mercanti chose to speak to Senior Officer Hogan and expose Senior Officer Hogan to potential assault. Therefore they failed in their duty to maintain custody and security of the prison or to comply with the procedures of safety, security and correctional services as required. 12 Having considered the evidence and the issues, the Hearing Officer concluded that Officer Ratten was careless and negligent in the performance of his duties and observed: Prison Officer Daniel Ratten had a duty to ensure the safety of Senior Officer Hogan. He was negligent in his duties within the meaning of section 98(1)(c) of the Prisons Act 1981 in that he failed to take due regard for the interest, safety and welfare of Senior Officer Hogan and that he did not maintain custody and security of the prisoner, nor did he comply with custom and practice in escorting this prisoner. He was aware of the requirements for escorting and is an experienced officer. 13 The Tribunal, having considered the approach of the Hearing Officer to the matter, concluded that there was no merit in the appeals. The Tribunal considered that the Hearing Officer was entitled to prefer the evidence of Acting SO Chitty, over the evidence of Officers Ratten and Clark. The Tribunal further concluded that the Hearing Officer was entitled to have regard to the state of mind of SO Hogan at the time of the incident. In particular, his considerable fear and apprehension that he may have been attacked by Prisoner Mercanti, because of the serious threats from him previously. The Tribunal noted that as found by the Hearing Officer, Prisoner Mercanti was not aggressive or threatening on the day in question. However, the Tribunal concluded that while under escort, Prisoner Mercanti should not have been allowed to go beyond the effective control of the officers performing the escort, contrary to established practice. 14 As to the penalty imposed, the Tribunal considered, at p 16 of its reasons, that the breach of discipline committed was “at the upper end of the range for this type of offence; a fellow officer was placed at potential risk (with an actual adverse impact) which could have been avoided, without much effort, by the appellants abiding by the regulations and practices”. The Tribunal concluded that the penalty imposed by the Hearing Officer was within the range for such offences. Contentions of the parties 15 In these proceedings, on behalf of Officer Ratten the Union submitted that the proposed transfer of Officer Ratten would be harsh, oppressive and unfair. In particular, the Union emphasised that given the similarities of Casuarina Prison and Hakea Prison, Officer Ratten would, in all likelihood, be involved in the performance of similar work, involving the supervision and management of high risk prisoners. Furthermore, the Union submitted that the Department, in its letter of 15 February 2013, set out its lack of confidence in Officer Ratten’s ability to perform the inherent duties of a prison officer deployed at a maximum security prison, but have not sought to address them through training or other performance management. 16 The Union called evidence from two other prisons officers, Officers Bohling and Tirant. Officer Bohling is a prison officer who has been based at Hakea Prison for some years. Officer Tirant is a prison officer who has been based at Casuarina Prison 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 579 for some years. Both officers gave evidence in relation to the supervision of high risk prisoners. Reference was also made by Officer Bohling to the Special Handling Unit and Multi-purpose Unit facilities at Casuarina. There is only an MPU at Hakea Prison. The purpose of this evidence was to attempt to demonstrate that the work of a prison officer at both prisons, involved similar responsibilities. In particular, the management and supervision of high risk prisoners. Additionally, Officer Tirant testified that as far as he was aware, since the incident involving Officer Ratten, no restrictions had been placed on Officer Ratten’s duties and he has worked in the SHU since. Officer Tirant acknowledged however, that he is not involved in or responsible for rostering of prison officers and gave his evidence as a work colleague of Officer Ratten. 17 For the Minister it was contended that the evidence before the Hearing Officer, confirmed by the Tribunal on appeal, established clearly that Officer Ratten committed a serious breach of discipline. The Minister placed full weight on the transcript of proceedings and the reasons for decision of the Tribunal, as justification for its decision under s 36(3) of the Prisons Act to transfer Officer Ratten. The Minister emphasised that the prisoner escort concerned, involved a notoriously violent offender, and the dereliction of duty by Officer Ratten exposed SO Hogan to a significant and unacceptable risk. Furthermore, on the submissions of the Minister, it was clear that not only was there a long history of animosity between Prisoner Mercanti and SO Hogan, but there was also some evidence of conflict between Officer Ratten and SO Hogan. 18 Having regard to all of these matters, in the context of the seriousness of the incident, the Minister submitted that the proposed transfer should proceed. In particular, the Minister submitted that for the purposes of cl 140.1 of the Agreement, a conclusion reached by the Corrective Services Commissioner, that a direction under s 36(3) of the Prisons Act should be made, is a sufficient “operational need” to authorise and support the transfer of a prison officer. Consideration 19 Officer Ratten was subject to a serious charge of negligence and carelessness in the performance of his duties as a prison officer when assisting in a prisoner escort of a violent offender. I have had full regard to all the circumstances of the incident, taken from the transcript of the hearing before the Hearing Officer. I have also had regard to the reasons for decision of the Tribunal, in dismissing Officer Ratten’s appeal. At the time of the incident, SO Hogan was clearly left in the position of substantial risk, to both himself and other prison officers, through the negligence of Officer Ratten. There was a history of conflict and significant antagonism between Prisoner Mercanti and SO Hogan. Officer Ratten was seemingly not aware of this conflict, but this fact is largely irrelevant in my view. The existence of any such underlying conflict is all the more reason why there is a necessity for prison officers to strictly comply with established practices and protocols, to guard against risks that may not be known to others. I would observe however, that it seems that conflict between Prisoner Mercanti and his associates and SO Hogan, was known to Acting SO Chitty. 20 The then Corrective Services Commissioner, in view of the findings of the Hearing Officer, considered the deployment of Officer Ratten at Casuarina Prison was not appropriate. In upholding the Hearing Officer’s finding, the Tribunal concluded that the breach of discipline was at the higher end of the scale. The Commission as presently constituted has previously raised concerns as to the appropriateness of the Industrial Commission reviewing operational decisions of the Chief Executive Officer of the Department, in matters concerning the suitability of a person to be a prison officer, in the absence of demonstrated unfairness. Operational decisions by the Corrective Services Commissioner, and other senior officers, in the exercise of powers under s 36(3) of the Prisons Act, should, in my view, only be called into question in cases of a breach of industrial principle: Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services (2013) 93 WAIG 1439. 21 For the purposes of the exercise of s 36(3) powers, a Superintendent and the Chief Executive Officer, are also required to act subject to the terms of the Agreement. In this case, cl 140.1 deals with transfers by management in accordance with “operational needs” of the Department. In the recent case in application CR 207 of 2013, in relation to the proposed transfer of another prison officer, I considered that “operational needs” was a concept very broad in scope. In my view, a bona fide direction by the Chief Executive Officer under s 36(3) of the Prisons Act satisfies this broad requirement. Unless the Commission is persuaded that the proposed exercise of the statutory power is industrially unfair, the Commission should not intervene. 22 Having carefully considered all the material and evidence in this case, I am not persuaded that the Commission should intervene in the exercise of the powers of the Chief Executive Officer under ss 7(3) and 36(3) of the Prisons Act and cl 140.1 of the Agreement. The decision made to transfer Officer Ratten was one clearly open in all of the circumstances. Accordingly, declarations and an order will be made. 2014 WAIRC 00355 DISPUTE RE DECISION TO TRANSFER UNION MEMBERS WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS APPLICANT -v- THE MINISTER FOR CORRECTIVE SERVICES RESPONDENT CORAM COMMISSIONER S J KENNER DATE WEDNESDAY, 30 APRIL 2014 FILE NO/S CR 173 OF 2013 CITATION NO. 2014 WAIRC 00355 580 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Result Declarations and order made Representation Applicant Mr J Walker Respondent Mr R Andretich of counsel and with him Ms T Borwick Declarations and Order HAVING heard Mr J Walker on behalf of the applicant and Mr R Andretich of counsel and with him Ms T Borwick on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby – (1) DECLARES that the Commission has jurisdiction to enquire into and deal with the herein industrial matter. (2) DECLARES that the proposed forced transfer of Officer Ratten from Casuarina Prison to Hakea Prison is not harsh, oppressive or unfair. (3) ORDERS that the proposed forced transfer of Officer Ratten from Casuarina Prison to Hakea Prison should proceed. (Sgd.) S J KENNER, [L.S.] Commissioner. 2013 WAIRC 00927 DISPUTE RE TRANSFER OF OFFICER WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS APPLICANT -v- THE MINISTER FOR CORRECTIVE SERVICES RESPONDENT CORAM COMMISSIONER S J KENNER DATE TUESDAY, 29 OCTOBER 2013 FILE NO/S CR 207 OF 2013 CITATION NO. 2013 WAIRC 00927 Result Order issued Representation Applicant Mr J Walker Respondent Ms N Sagar and with her Ms T Borwick Order HAVING heard Mr J Walker on behalf of the applicant and Ms N Sagar and with her Ms T Borwick on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – (1) THAT the Department shall give discovery to the Union of transcripts of the interviews undertaken by Mr Theodorsen in his investigation by 1 November 2013. (2) THAT the parties have liberty to apply on short notice. (Sgd.) S J KENNER, [L.S.] Commissioner. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 581 2014 WAIRC 00313 DISPUTE RE TRANSFER OF OFFICER WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION