Andre Shrimski v Australian Broadcasting Corporation

[2013] FWC 7858

[2013] FWC 7858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Andre Shrimski
v
Australian Broadcasting Corporation
(C2013/4537)

COMMISSIONER ROBERTS SYDNEY, 8 OCTOBER 2013

Application pursuant to s.739 - dispute resolution - enterprise agreement - appeal against a selection decision - jurisdictional objection.

[1] This decision concerns an application made by Mr Shrimski on 28 May 2013, pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute between him and the Australian Broadcasting Corporation (the ABC). Mr Shrimski is employed pursuant to the terms of the ABC Enterprise Agreement 2010- 2013 (the Agreement) and the reference to the Commission arises from the Prevention and Resolution of Disputes procedure set out at clause 61 of the Agreement. Relevantly subclause 61.3 of the Agreement says:

“61.3 Right of Appeal Against a Selection Decision

61.3.1 Subclauses 61.1.1 to 61.1.3apply to a dispute regarding a Selection Decision. Once those steps have been followed, the provisions below will apply.

61.3.2 An ABC employee, who is an applicant for a vacancy which has been the subject of a Selection Committee assessment, may apply to Fair Work Australia for it to deal with a dispute which is an appeal against Selection Decision where that decision is based on any alleged:

a. Non-observance of due process;

b. Unlawful discrimination;

c. Patronage or favouritism by a Selection Committee.

61.3.3 An application by an ABC employee must be in the form prescribed by the Act. 61.3.4 The application must be lodged within 7 days after the date of notification to an employee that he/she has been unsuccessful in his/her application for the position in question.

61.3.5 There is no right of appeal against:

a. a Selection Decision based on merit;

b. a Selection Decision to a position involving a joint venture;

c. a Selection Decision involving an external appointment; or

d. a Selection Decision in respect of a vacancy where the vacancy duration is 12 months or less.

61.3.6 On receipt of an application for a dispute resolution process under this clause, Fair Work Australia will establish a Selection Committee Assessment Panel. The Panel will be comprised of three people: a. an independent chairperson nominated by Fair Work Australia; b. a person nominated by the ABC; and c. the appellant's nominee who must be from outside the appellant's work area.

61.3.7 The Panel can only consider the due process of the selection in accordance with clause 13 [Advertising and Selection] and this subclause 61.3 and not the question of merit. The Panel will determine the matter within 21 days of receiving the appeal and will provide reasons for their decision in writing. The burden of proof will rest with the appellant.

61.3.8 Where the Panel determines that due process was not observed and that the non-observance had an adverse or detrimental impact on the selection process, the appeal will be upheld and the Selection Decision declared void. If the vacancy is to be filled, the ABC will convene a new selection committee and observe due process. The ABC will retain the right to appoint the employee of its choice in an acting capacity, pending the determination of the appeal.

61.3.9 Where the appeal has been disallowed, the selection is automatically confirmed.

61.3.10 The provisions of subclause 61.1.6 will apply during the process under this subclause 61.3.”

[2] Subclause 61.1.6 of the Agreement provides:

“61.1.6 While the parties are trying to resolve the dispute using the procedures in this term an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health and safety, in which case the employee must comply with a direction given by the ABC to perform other available work at the same workplace, or at another workplace, unless:

a. the work is not safe; or

b. applicable occupational health and safety legislation would not permit the work to be performed; or

c. the work is not appropriate for the employee to perform; or

d. there are other reasonable grounds for the employee to refuse to comply with the direction.”

[3] The application first came before me on 13 June 2013 by way of a conciliation conference. The matter was not resolved at that conference and a mention and programming hearing was held on 21 June 2013. Directions were then issued on the same day. Both parties complied with the directions and filing and serving of evidence and materials was completed on or about 9 August 2013.

[4] It was agreed between the parties that a jurisdictional objection by the ABC would be heard as a separate threshold matter. The hearing of the jurisdictional objection occurred before me on 10 September 2013 in Sydney. Mr Shrimski was represented by Ms A Monkley of CPSU, the Community and Public Sector Union (the CPSU). The ABC was represented by its Head of People & Communication ABC Radio, Ms V MacBean. Mr R Buckham (Manager of ABC Classic FM), Mr C Naylor (Head of Planning & Performance for ABC People & Learning Division) and Mr J Crawford (Live Music Director of ABC Classic FM) gave sworn evidence for the ABC and each submitted a witness statement 1. Ms M Rayner (Executive Producer, Hindsight, Features, Radio National) submitted a witness statement2 but was not required for cross-examination. Mr Shrimski gave sworn evidence and submitted a witness statement3.

Background

[5] Mr Shrimski is employed as a Music Producer (NSW) at ABC Classic FM and has held that position since December 2006. In November 2012 Mr Shrimski applied for the position of Senior Live Music Producer - Classic FM advertised internally and externally by the ABC. On 26 February 2013 he attended an interview before a Selection Panel. He was advised verbally on or about 21 March 2013 that his application had not been successful and received formal written notification to that effect on or about 5 April 2013. Subsequently, Mr Shrimski disputed the outcome of the selection process with relevant ABC managers where he alleged failures of due process by the Selection Panel: “I felt that in my application and interview I had not been assessed against the advertised selection criteria for the position.” 4

[6] Mr Shrimski characterised his application to the Commission, and the relief sought, in the following terms.

“I have not alleged in my application to the Fair Work Commission that I am the most meritorious candidate and should be placed in the position. The relief I am seeking from Fair Work is for Fair Work to constitute a Selection Committee Assessment Panel to determine whether due process was followed in the selection for the position. It is my hope that that Panel will uphold my appeal and declare the selection decision void due to non-observance of due process which had an adverse or detrimental effect on the selection. This is in accordance with clause 61.3.8 of the Agreement.” 5

The ABC’s jurisdictional objection

[7] The ABC contends that determination of Mr Shrimski’s application is jurisdictionally barred by subclause 61.3.5(a) of the Agreement in that Mr Shrimski’s application is an appeal against a Selection Decision based on merit. Accordingly, the Commission should “decline to refer the appeal to a Selection Committee Assessment Panel on the ground that there is no jurisdiction to do so.”

[8] The CPSU, for Mr Shrimski, argues:

“... it is the Commission’s role to constitute a Selection Committee Assessment Panel to examine whether due process was followed in the selection process. It is not Commission’s role to stand in the position of this panel and determine the matter whether due process was indeed followed.” 6

[9] The CPSU goes on to argue that the appeal concerns alleged failure to adhere to due process, not any question of merit.

Determination of the jurisdictional objection

[10] After a careful examination of all of the evidence, materials and submissions, I have come to the conclusion that the ABC’s jurisdictional objection is clearly not made out.

[11] The central thrust of the objection is that I should examine the question of merit, or whether Mr Shrimski’s appeal is based on merit issues, and if I find that to be the case then his appeal can proceed no further. To that end, the ABC put on extensive evidence to support its view on the merit issue.

[12] Subclause 61.3 of the Agreement was certainly not drafted with clarity of meaning in mind. At 61.3.2 it provides that an ABC employee may apply to the Commission to deal with a dispute which is an appeal against a Selection Decision in certain circumstances. It goes on to say that no appeal can be made where a Selection Decision is based on merit. However, the clause goes on at 61.3.6 to state:

“61.3.6 On receipt of an application for a dispute resolution process under this clause, Fair Work Australia will establish a Selection Committee Assessment Panel. The Panel will be comprised of three people:

a. an independent chairperson nominated by Fair Work Australia;

b. a person nominated by the ABC; and

c. the appellant's nominee who must be from outside the appellant's work area.”

[13] Subsequent subclauses make it again clear that decisions based on merit are not appealable.

[14] The ABC’s jurisdictional objection, in effect, argues that pursuant to subclause 61.3.5(a), the Commission is placed in the position of ‘gatekeeper’ by being required to assess whether an application under 61.3.2 is concerns a merit-based Selection Committee decision or not. The ABC argues that if the Commission was to find that an application was based on a merit issue then an applicant would be precluded from seeking the relief provided for in 61.3.6, 61.3.7, 61.3.8 and 61.3.9. Although I note that the ‘merit point’ rears its head at 61.3.5(a), that reference must be read in the light of 61.3.6. Subclause 61.3.6 sets out the role, duty, and power of the Commission when an application of the type made by Mr Shrimski is lodged. I am satisfied that the role and duty of the Commission in this case is to establish a Selection Committee Assessment Panel, one of whose members shall be an independent chairperson nominated by the Fair Work Commission. That three person Panel is, at 61.3.7, charged with the responsibility to only consider the issue of due process in the selection and not the question of merit. It is in this context that 61.3.5(a) must be considered.

[15] Given the basis on which I have reached my determination on the jurisdictional objection, I have not had need to refer to the evidence put to me in the substantive hearing. However, that evidence should be of great utility to the Selection Committee Assessment Panel.

[16] The jurisdictional objection by the ABC is therefore dismissed and Mr Shrimski’s application for relief will proceed according to the provisions of subclauses 61.3.6, 61.3.7, 61.3.8 and 61.3.9 of the Agreement.

[17] This brings me to the process by which the Commission will establish the Selection Committee Assessment Panel. In that regard, it is my intention to refer this matter to his Honour the President of the Commission for him to determine who should be appointed as the independent chairperson nominated by the Fair Work Commission. The parties will be advised of the outcome.

COMMISSIONER

Appearances:

A Monkley for Andre Shrimski.

V MacBean for Australian Broadcasting Corporation.

Hearing details:

2013.

Sydney:

June 21;

September 10.

 1   Exhibits ABC 3, ABC 4 and ABC 5 respectively.

 2   Exhibit ABC 7.

 3   Exhibit CPSU 2.

 4   See paragraph 11 of Exhibit CPSU 2.

 5   See paragraph 19 of Exhibit CPSU 2.

 6   See paragraph 6 of Exhibit CPSU 1.

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