Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific National

[2016] FWC 7221

[2016] FWC 7221

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s 739—Dispute resolution

Australian Rail, Tram and Bus Industry Union
v
Asciano Services Pty Ltd t/a Pacific National
(C2016/749)

DEPUTY PRESIDENT SAMS SYDNEY, 17 OCTOBER 2016

Application to deal with a dispute under the dispute settlement procedure of an agreement – recommendation sought concerning restructure proposal – abolition of roles and creation of new roles – consultation – open selection process – key elements of selection process – whether affected employees should have been directly appointed – compliance with Agreement provisions – selection process fair and reasonable – unfair to unravel the selection process – no utility in recommendation – dispute concluded.

BACKGROUND

[1] This decision will determine an application filed under s 739 of the Fair Work Act 2009 (‘the Act’), by the Australian Rail, Tram and Bus Industry Union (the ‘Union’) in which the Fair Work Commission (the ‘Commission’) has been requested to deal with a dispute under the Disputes Settlement Procedure (‘DSP’) of the Pacific National Coal NSW Enterprise Agreement 2013 (the ‘EBA’ or the ‘Agreement’). The dispute is with Asciano Services Pty Ltd t/a Pacific National (‘Pacific National’ or the ‘respondent’) and concerns the redeployment process in a restructure of the Plan Delivery Section in the respondent’s Hunter Valley operations.

[2] The restructure has affected 10 employees, five of whom were employed in Greta Train Coordinator roles (the ‘Greta roles’) and five employees in Integrated Live Run Coordinator roles (the ‘Broadmeadow roles’). Pacific National had proposed to abolish these 10 roles and replace them with 10 Hunter Area Coordinator roles (the ‘HAC roles’). Both the old and new roles are classified at Support Employees Specialist Level 2 (pay point 2.4) of the Agreement. To achieve its objective, the 10 occupants of the former roles were required to undergo a competitive selection process. Four of the existing employees were unsuccessful in the selection process and now face redundancy. In a nutshell, the dispute concerns the outcome for the four unsuccessful employees and the Union’s claim that Pacific National should have filled the 10 new HAC roles by direct appointment in accordance with cl C2.4 of the Agreement.

[3] The dispute was filed on 4 April 2016 and listed for conference on 29 April 2016. No settlement was reached at this conference. Despite further attempts by the parties to settle the dispute, it remained unresolved and the Union sought a further conciliation conference with the Commission. This conference was held on 15 August 2016, but resolution of the issues in dispute remained elusive. Accordingly, the Commission issued directions for a determination of the matter by way of a ‘highly influential’ recommendation in accordance with cl A30.2(i) – Resolution of Disputes; as the DSP provides only for consent arbitration (and the consent of the respondent was not forthcoming). Paragraphs (h) and (i) are set out hereunder:

‘(h) During or at the conclusion of the cooling off period, a Party may decide to refer the matter to a mutually acceptable mediator or the FWA for the purpose of conciliation of the dispute.

(i) Where a dispute/grievance is escalated to the point of involvement of either an independent mediator or the FWA in conciliation, the parties acknowledge the significance of this point being reached. Therefore, any recommendation made by the independent mediator or FWA in an attempt to assist the Parties to resolve the dispute/grievance will be treated as highly influential.’

[4] There were no issues as to the parties’ compliance with the preceding steps in the DSP. After the filing of statements and submissions, the parties agreed I should determine the matter ‘on the papers’. I intend to proceed by determining whether it is appropriate to make a recommendation as envisaged by the parties in the Agreement’s DSP, and if so, what recommendation should be made.

The Agreement’s relevant provisions

[5] The Union seeks a recommendation from the Commission that the process undertaken by Pacific National in filling the 10 new HAC roles, was in breach of cl C2.4 of the Agreement in that it only permits direct appointment in the circumstances of this restructure. The relevant clause is as follows:

‘C2.4 In relation to an organisational restructure that has a direct impact on support staff, this clause provides a process for employees and their union to raise any concerns arising out of the restructuring process. If the affected support staff member fulfils the criteria as set out in the position description they will be directly appointed into the new position. In the event that an employee is made redundant as a result of not meeting the criteria, as per above, the Redundancy clause will be activated. An employee will, subject to the redundancy clause provisions accept a suitable alternate role if they fulfil the criteria and will be directly appointed to that role.’

THE EVIDENCE

For the Union

[6] Gregory John Cameron had been employed from 1982 - July 2015 in various support operational roles within Pacific National, or its predecessor entities, including Station Master, Coal Overseer, Terminal Operations Coordinator and Main Line Asset Coordinator. Throughout his career, Mr Cameron has held various honorary positions with the Union. He is currently employed as a Union Project Officer. Mr Cameron has been part of the Union’s negotiating team for various enterprise agreements.

[7] Mr Cameron said that on 4 March 2016, Mr Robert Jarvis, the respondent’s NSW/Vic Planning Manager advised the employees holding the Greta roles (5) and Broadmeadow roles (5) that their roles were to be restructured and all incumbent employees would have to reapply for a position. One member submitted a dispute under the terms of the Agreement, alleging a failure by Pacific National to comply with the consultation process in respect to significant change under the Agreement. In a letter from Mr Hoskins, Plan Delivery Manager on 22 March 2016, he denied a decision had earlier been made regarding significant change. The proposal was subsequently advised to employees on 1 April 2016. Following a conciliation conference in the Commission, Pacific National agreed to provide position descriptions for the two former roles and the new role (this was done on 2 May 2016). Mr Cameron annexed these position descriptions to his statement. A ‘spill and fill’ exercise proceeded during May and June 2016. The 10 employees all participated in the process. However, four employees were subsequently advised they were unsuccessful.

[8] Mr Cameron said that the Greta and Broadmeadow roles and the new HAC roles, were classified at Support Employees Specialist Level 2 (pay point 2.4) of the Agreement. It was Mr Cameron’s experience that members of the team in these positions will often cover for other positions in the team. At this point, I set out the Support Stream classifications found at Section C3 of the Agreement:

Classification Pay Level

Description

FRONTLINE SUPPORT LEVEL 1

PAY POINTS 1.1. TO 1.5

This classification level applies to positions which have accountability for delivering administrative, technical or operational support. At this level, the range of tasks and activities to be carried out are usually well defined. As a result, routine methods and procedures are employed that may require some judgement in the selection of resources, sequencing of tasks, or the selection of appropriate work methods or involvement of other employees.

Specialist Level 2

Pay points 2.1 to 2.4

This classification level applies to positions which have accountability for delivering a range of specialist services. These could include those related to a specific engineering, technical or administrative discipline. At this level, Employees would be expected to operate autonomously in line with specific skills or qualifications they possess. There may also be some coordination of activities being performed by other Employees.

While focused on specific functional or discipline based activities, activities are usually based on the application of defined precedent. As a result, routine methods and procedures are employed that may require some judgement in the selection of resources, sequencing of tasks, or the selection of appropriate work methods or involvement of other Employees, within the context of the specific function or discipline.

Seasoned Specialist Level 3

Pay Points 3.1 to 3.3

This classification level applies to positions that have accountability for delivering high level specialist services. These could include those related to engineering, financial, technical or support disciplines.

This classification level has no application to any Employee in supervisory positions, i.e. Employees whose substantive and major accountability is the supervision of other Employees.

At this level, Employees are expected to deliver seasoned or senior level specialist support within their specific functional speciality or discipline. While focused on specific functional or discipline based activities, these activities can be based on the application of their professional principles to resolve unusual problems and/or oversee the development and implementation of new programmes or projects. Problem resolution is a frequent requirement at this level and the outcomes of their resolution process may break new ground for the organisation.

[9] Mr Cameron claimed that part of Pacific National’s recruitment process requires applicants when making their applications to demonstrate how they meet the position selection criteria. If they fail to do so, they are not interviewed. Mr Cameron assumed that as all 10 affected employees were interviewed, they must have met the selection criteria. Having also reviewed the 10 employees’ resumes, he believed they had all met the selection criteria.

[10] Mr Cameron said that the four positions not won by the existing employees were secured by other employees who were impacted under another Pacific National restructure in which positions at the North Sydney Operation Centre are to be made redundant later in the year. Mr Cameron claimed that Pacific National failed to provide any detailed advice as to how, or why the employees failed to meet the selection criteria. One employee was given conflicting reasons for his non-selection.

For Pacific National

[11] Robert Jarvis is currently employed by the respondent as Head of Strategic Customer Planning. He previously had oversight for the Broadmeadow roles and Greta roles. Mr Jarvis referred to a wide ranging review and restructure of the respondent’s Planning Function. This included:

‘The development of the Integrated Planning Services function, based in North Sydney. This will involve the creation of new roles based in North Sydney and the abolition of a number of roles at locations such as Port Kembla, Parramatta, Newcastle and Broadmeadow.’

[12] The review and restructure was advised to all employees on 2 March 2016. Mr Jarvis said that the proposal to create 10 HAC roles was part of this broader review and would not have occurred, but for this review. On 19 April 2016, Mr Jarvis wrote to Mr Cameron setting out the relevant information relating to the HAC roles.

[13] Mr Jarvis claimed he contacted Mr Cameron on or about 5 May 2016 to advise of the respondent’s intention to proceed with the internal recruitment process for the HAC roles. Having left a voicemail message for Mr Cameron, he did not hear anything from him or the Union until 19 July 2016, when he was advised of a relisting of the dispute before the Commission.
[14] Mr Jarvis denied the process undertaken was a ‘spill and fill’ process. These were 10 newly created positions. There was a wider cohort of employees whose roles were to become redundant in the full review and restructure of the Plan Delivery Function. All employees directly affected were given an opportunity to apply for the 10 HAC roles and the positions were advertised internally. The following four-step selection process was undertaken:

(i) The employee applies in writing for the position;

(ii) An interview which involved the asking of questions relevant to the performance of the HAC role;

(iii) A group activity, in which employees’ performance was assessed against criteria relevant to the performance of the HAC roles; and

(iv) A reference check.

[15] All of the 10 affected employees were progressed through this selection process. Contrary to Mr Cameron’s view, Pacific National did not make an assessment based solely on their applications, which indicated fulfilment of the selection criteria. As to the employee whose reasons for non-selection were said to be inconsistent, Mr Jarvis said that he had been advised the employee failed to demonstrate an ability in the group assessment and interview.

[16] Mr Jarvis said that on 19 July 2016, all affected employees were advised whether they had been successful or unsuccessful in their application. Those who were successful are due to commence in the new HAC role on 1 January 2017.

[17] Mr Jarvis believed Mr Cameron’s reference to ‘another restructure’ was an arbitrary distinction. Mr Cameron’s reference was actually to the Integrated Planning Services (IPS) Function. Each of the employees directly affected were, and are part of the respondent’s Planning Function. Mr Jarvis added that no employee had approached him to complain that the feedback they received about the process was inadequate.

[18] In a reply statement, Mr Cameron disputed Mr Jarvis’ view that the creation of the 10 HAC roles was part of the wider review and restructure of the Planning Function. The wider review of the IPS was companywide, impacted on several areas and employees under three different enterprise agreements, for which separate consultation processes are required. Even Mr Jarvis’ position chart confirmed that this was a separate restructure.
[19] Mr Cameron explained that the Union did not contact Pacific National between 19 April 2016 and 19 July 2016 because there was no reason to do so, as Pacific National had made several references to the matter as being one not able to be disputed, because no one, at that point, had been affected or displaced. After the first Commission conference, Pacific National had supplied the requested position descriptions. Mr Cameron and the Union believed Pacific National may have appointed the 10 affected members through the direct appointment process. Mr Cameron had encouraged his members to apply for the 10 HAC roles and await the outcome. As four were unsuccessful, the Union sought a relisting of the dispute by the Commission.

[20] Mr Cameron reaffirmed his view of the ‘spill and fill’ process. He believed the HAC roles are a combination of the two former roles and each employee can perform at least half of the HAC role because they already perform some of the tasks. He claimed the tasks and duties of the 10 HAC roles are ‘just arranged differently’. Mr Cameron insisted that no unsuccessful employee was provided with information to explain why they did not meet the selection criteria. It was Mr Cameron’s view that because of Mr Jarvis’ seniority, it would not have been normal practice for employees to contact him directly.

SUBMISSIONS

For the Union

[21] After setting out the background to the dispute, the Union noted Pacific National’s advice in its Notification of Significant Change that the HAC role consists of 50% of the Greta roles and 50% of the Broadmeadow roles. The HAC roles are at the same classification and pay point as the two former roles and there had been overlapping and cross training between the two former roles in the past. The Union pointed out that all 10 affected employees had met the selection criteria and Pacific National had provided no information as to how their selection criteria had not been met. Pacific National was therefore not meeting its obligation to fill the 10 HAC roles via direct appointment in accordance with cl C2.4 of the Agreement.

[22] The Union submitted that cl C2.4 is not ambiguous; see: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426. The ordinary meaning of the clause is that:

(a) In an organisational restructure, where a support staff member is directly impacted by that restructure, they are an ‘affected support staff member’.

(b) If the employee, as the affected support staff member, fulfils the criteria as set out in the position description, they will be directly appointed.

(c) If they do not meet the criteria, they will not be directly appointed and the Redundancy clause will be applied.

The clause does not provide for competitive selection or for other employees from other areas (affected or otherwise) being able to compete against affected employees.

[23] The Union concluded as follows:

‘• The applicant submits that cl C2.4 of the Agreement should be interpreted using its plain meaning as outlined above.

• The applicant submits that the Commission has the power, pursuant to sections 739 and 595 of the Act, and through cl A30 of the Agreement, to make a recommendation interpreting the application of cl C2.4, in order to provide certainty to the parties and to assist in resolving the dispute.

• Accordingly, we seek that the Commission provide an interpretation of cl C2.4 in a recommendation to this effect.’

For the Respondent

[24] After setting out the background to the dispute, Ms DeBoos, Solicitor, described the broader review and restructure of Pacific National’s Planning Function and submitted that the abolition of the former Greta and Broadmeadow roles is part of the broader review; see: Notice of Significant Change. She put that the HAC roles were materially different to the two former roles and required a quite different set of skills. It could therefore not be presumed that the 10 occupants of the former roles met the selection criteria for the HAC roles.

[25] Ms DeBoos noted that neither the Union nor Mr Cameron raised any concerns when, on 6 May 2016, the Union was advised that the HAC roles were to be advertised internally and did not pursue the dispute until 19 July 2016.

[26] Ms DeBoos claimed that each of the employees who applied for the HAC role was a member of the Planning Function who was otherwise subject to his or her role becoming redundant, due to the wider restructure. The selection process and outcomes were those set out in Mr Jarvis’ statement.

[27] Ms DeBoos submitted that the Commission should not make a recommendation in this matter for the following reasons:

(a) the Union mischaracterised the nature of the dispute;

(b) in seeking an ‘interpretation’ in the terms set out in the Union’s submissions, the Union is seeking that the Commission engage in an entirely futile exercise, which involves nothing more than restating the words of the clause;

(c) the respondent has conducted its processes in a manner that is:

(i) compliant with its obligations under the Agreement; and

(ii) manifestly fair to all members of the respondent’s Planning Function who are impacted by the review and restructure of the IPS.

In the circumstances, there is no basis for the Commission to disturb that process, and replace it with an arbitrary outcome; and

(d) the Union had delayed pursuing this dispute. Given the steps that have occurred between the initial conference and now, the respondent submitted that the delay should weigh heavily against the Commission exercising its discretion to issue a recommendation in this matter.

[28] Ms DeBoos developed her submissions as follows. Pacific National recognises that there are employees who are directly impacted by the organisational restructure of the Planning Function. It has complied with cl C2.4 of the Agreement. The Union has mischaracterised the facts in the dispute and has failed to recognise the significant numbers of employees directly impacted. It seeks to exclude employees who are covered by the same Agreement, from being considered for appointment when they meet the selection criteria.

[29] Pacific National characterises the issue in dispute this way:

(a) Whether all employees who are directly impacted by the review and restructure of the IPS Function should have the opportunity to be directly appointed to one of the 10 new positions; or

(b) Whether that opportunity should be confined to Integrated Live Run and Train Coordinators only?

[30] In mischaracterising the nature and facts of the dispute, the recommendation sought by the Union did not address the real issue in dispute. Accordingly, the recommendation should not be made and the process undertaken by Pacific National should not be disturbed.

[31] Ms DeBoos said that even if the Commission issued a recommendation interpreting cl C2.4 it would be doing no more than giving the words their plain, ordinary meaning and restating the words of a clause that have no application to the resolution of the issues in dispute. It would be of no real utility and of no assistance to the parties.

[32] Ms DeBoos emphasised that the respondent has conducted itself in a manner which is:

(a) compliant with its obligations under the Agreement; and

(b) fair to all employees in the Planning Function whose roles are directly affected by the restructure.

[33] Ms DeBoos submitted that cl C2.4 refers to organisational restructure, not to arbitrarily ‘carving up’ the restructure into separate areas. Where the clause is silent as to new roles, and where there are more employees seeking appointment to the new roles, the process undertaken by the respondent was fair, appropriate and transparent. The Commission should not intervene to unravel such a process which has already been undertaken.

[34] Ms DeBoos further submitted that the Union had provided no explanation why it took no action in respect to the dispute between May and 19 July 2016 when it was well aware of the steps being undertaken by Pacific National consistent with its understanding of the process. While it was unclear whether the Union sought to unravel the selection process and outcomes, if this was to occur it would significantly disadvantage those employees who participated in the process in good faith and assumed certainty as to the outcome.

[35] Finally, Ms DeBoos said the Commission should not issue a recommendation as sought by the Union, or at all.

In reply

[36] Ms Rose, Industrial Officer, put that the Union sought clarity on the meaning of cl C2.4 so that it may appropriately represent its members affected by this restructure and other members in the future. This will assist in communications with its members and in the renegotiation of the Agreement.

[37] Ms Rose noted that although the occupants of the new roles have been announced, the Greta and Broadmeadow employees remain in their roles until 1 January 2017. She reaffirmed that the two roles are the same, just arranged differently. Ms Rose emphasised that the respondent had itself treated this restructure as a separate standalone exercise. The 10 directly affected employees are the 10 employees in the former roles. Ms Rose believed that the respondent was seeking to expand the words in cl C2.4 to include details of processes not contemplated by the clause. Again, it was said that there was no information provided to the employees or the Union, as to why the unsuccessful employees had not met the selection criteria.

[38] Ms Rose put that there was no delay by the Union in processing this dispute. The Union had expected the respondent to comply with its obligations under the Agreement. Lastly, Ms Rose said the Union did not confuse the issue in dispute. It was simple and straightforward. The Commission has the power to make a recommendation interpreting the application of cl C2.4 in order to provide certainty to the parties and assist in resolving the dispute.

CONSIDERATION

[39] In any exercise of the Commission’s dispute settlement functions under the Act, or as mandated to it by the DSP under an Agreement, (including, as here, in a limited function of making a recommendation) it is necessary to keep steadily in mind the requirement to properly characterise the nature of the dispute.

[40] Clause A30.2 sets out the scope of the DSP as follows:

‘Where a dispute or grievance arises between Pacific National Coal, NSW and its Employees in relation to the application of this Agreement or other workplace change, the following (being the step by step process of the DSP) will occur.’

[41] In United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (PR973884) the Full Bench of the Australian Industrial Relations Commission (as the Commission was then styled) said at paragraphs [10]-[12]:

‘[10] It is well established within the Commission that a dispute settling clause in a certified agreement can only empower the Commission to deal with “disputes over the application of the agreement”. That is, the Commission has no jurisdiction arising from a dispute settlement procedure in a certified agreement to conciliate or arbitrate a dispute pursuant to such a clause unless the dispute can properly be characterised as a “dispute over the application of the agreement”.

[11] In AMWU v Holden Limited the Full Bench observed:

[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is ‘over the application of the agreement’ within the meaning of s.170LW of the WR Act. As noted by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this expression has not been judicially considered. The majority went on to observe that:

“A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement. ...”

[46] We adopt these observations. Further, in our view the expression should not be narrowly construed. In this context we agree with the observation of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores that:

“...what comprises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”

[47] In characterising the nature of the dispute in this matter the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced. In this context we note that in TWU v Mayne Nickless Ltd the Full Court of the Federal Court held that in determining whether an application calls on the Commission to exercise judicial, as opposed to arbitral, power ‘a court should review the entire factual background to properly characterise the claim and the power sought to be invoked (My emphasis).’(footnotes omitted)

[42] It seems to me, the Union’s proposed recommendation sought from the Commission, proceeds on the assumption that cl C2.4 of the Agreement applies to Pacific National’s proposal to abolish the Greta and Broadmeadow roles and create 10 new HAC roles. I do not agree. In my view, the Union mischaracterised the dispute by referencing it to cl C2.4 of the Agreement. It is therefore unnecessary to interpret the clause. Even if one did so, according to a ‘golden rule’ of agreement interpretation, I agree with the Union that the words have a plain and ordinary meaning which do not require ferreting around to find evidence of their meaning through ‘surrounding circumstances’: see Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) 245 IR 394 (‘Golden Cockerel’).

[43] As I have said, the Union’s reliance on cl C2.4 is misplaced. I come to this view for the following additional reasons.

[44] Firstly, there is no doubt that cl C2.4 is a discrete provision dealing with the circumstances of an organisational restructure — although I do not accept it is a limited restructure of the 10 affected roles at Greta and Broadmeadow. I shall come back to this matter shortly. I agree the restructure had a direct impact on the employees (this is not disputed by Pacific National). However, a critical caveat to the activation of the clause is that the affected employees fulfil the criteria set out in the position description. The clause also provides for ‘direct appointment’ in circumstances which have triggered the redundancy provisions of the Agreement.

[45] Secondly, I do not accept the Union’s submission that as all of the affected employees met the selection criteria, that was in effect the end of the matter and that they should have been automatically appointed to the HAC roles. That is certainly not how the Union reacted to the Notice of Significant Change of April 2016, in which it was made abundantly clear that the process was the HAC roles would be advertised internally, interviews arranged and persons selected according to wider criteria than the mere compliance with the position description. If it was not clear then, it was reinforced again in the document provided to the Union on 19 April 2016, in which a Frequently Asked Questions document said at questions 5, 10 and 13:

‘ Q5 If you apply for one of the roles within IPS will you still be considered for this role?

• A5 All employees will have the opportunity to apply for these roles and we are trying to match the process time for the recruitment of this role to what is currently occurring for the IPS positions.



• Q10 Why not direct appoint people into the role as per clause C2.4 of the EA?



• A10 The new roles are significantly different to the existing roles this is why a recruitment and assessment process is required.



• Q13 Do you think that anyone would meet the criteria to allow direct appointment into these roles?



• A13 To ensure a transparent process, there will be no direct appointments and all employees that apply will be assessed for their suitability to the roles following the same process.’

[46] Thirdly, in the face of this unequivocal advice, I have difficulty accepting Mr Cameron’s evidence that he had expected Pacific National to apply the direct appointment provisions of cl C2.4 to the 10 affected employees. I do not understand from where, or from whom he could have obtained and maintained this belief. As he pointed out, Mr Cameron is an experienced Union official and negotiator, who might not ordinarily be so confident as to the ‘goodwill’ of management. It makes not a skerrick of sense to believe Pacific National would do the complete opposite of what it had expressly told the Union and the affected employees it would not do; namely, direct appointment of the 10 employees. If the above documents did not demonstrate precisely what Pacific National intended, then it is difficult to imagine what else was necessary.

[47] Fourthly, given the above observations, it was incumbent on the Union to have directly challenged the process and/or the application of cl C2.4 of the Agreement, as soon as Pacific National’s intentions were made pellucidly plain. To wait three months until the process had been completed (albeit the new appointments have not commenced), was a bold, but risky strategy, for which the Union must take full responsibility. That said, I do not single out Mr Cameron in particular. Perhaps his view was that the appointment of the 10 affected employees to the new HAC roles was a fait accompli. Regrettably, that was not the reality.

[48] Fifthly, in any event, after consultation sessions, the affected employees participated in a competitive process in which they knew there were three relevant considerations for selection; not just the meeting of the criteria of the job description. These were:

(a) an interview which involved the asking of questions relevant to the performance of the HAC roles;

(b) a group activity, in which employees’ performance was assessed against criteria relevant to the performance of the HAC roles; and

(c) a reference check.

[49] Sixthly, I reject the Union’s submission that the organisational restructure was limited only to this group of 10 affected employees. Again, it was plainly set out in the first paragraph of the Notice of Significant Change of 1 April 2016 that it was part of a wider Planning Function Review:

‘With the introduction of the Integrated Planning Services (IPS) Team in North Sydney, the current operation of Plan Delivery in the Hunter Valley will undergo significant change. As well as the planned relocation of the majority of the functions of the Planning team, the functions currently completed by both the Greta Train Coordinator and the Integrated Live Run Coordinator, will require adjustment to support the IPS structure once it is implemented.’

[50] It was also made clear that the new HAC roles would not start until 1 January 2017; after the wider IPS review had been completed at the end of 2016. This fact demonstrates the integral nature of the HAC roles to the wider restructure of the Planning Function. In regards to the issue raised by the Union that the wider review impacted on several areas and employees under three enterprise agreements and subject to separate dispute notifications; with respect, that is not the point. Many restructures will impact on more than one discrete area or group of employees. The management and industrial response to such restructures may be different and varied. That does not mean an individual or a group of employees should be isolated from the wider ramification of the restructure and its effect on all employees.

[51] Seventhly, it seems to me that Pacific National undertook an exercise which Unions often seek in restructuring proposals; that is, to open up the options available in newly created roles to all persons directly affected by the restructure. What was the respondent to do if it had more applicants than the number of new roles available? The only sensible and responsible response was to undertake a selection process which was transparent and objective. In these circumstances, the regrettable reality is that there will always be winners and losers.

[52] Eighthly, given that firstly, the selection process has been completed and the successful and unsuccessful candidates have been advised of their start and end dates of 1 January 2017, and secondly, that the Union has effectively acquiesced in the process until it was too late, in my view, it would be manifestly unfair to the successful employees (some, or all whom may be Union members) to unravel the entire selection process and effectively overturn the outcomes of the selection process. There is no industrial or merit justification for doing so. These employees participated in the process in good faith and are entitled to the certainty of the outcome. It would be wrong to take their successful selection away from them, in order for the unsuccessful employees to effectively take their place.

[53] Ninthly, the Union’s reliance on the fact that the former roles and the new roles were at the same classification and pay point, does not in my opinion, advance the Union’s case very far. There are only three classifications in the Support Stream of the Agreement, within which there are 12 pay points (see paragraph [8] above). However, as the Union has often argued in the past, these three classifications, particularly Specialist Level 2, are broad in scope and generic in nature. They apply to a wide range of administrative, technical and professional positions. Just because two positions are at the same classification and pay point, does not necessarily mean that the positions or the roles are the same. They are clearly not in this case.

[54] Lastly, while I regret the circumstances in which the four unsuccessful employees find themselves, the fact there is some time yet before they are made redundant (1 January 2017) may hold some prospect of them securing alternative redeployment opportunities with Pacific National. I hope this to be the case.

[55] In my opinion, there is no utility or purpose in making the recommendation/s as sought by the Union. Moreover, there is no industrial merit in the Union’s submissions which would warrant any other recommendation in resolution of this dispute. I decline to do so. The dispute, in so far as the Commission’s powers are limited by the Agreement’s DSP, is concluded.

DEPUTY PRESIDENT

Written submissions:

28 August 2016 – Applicant’s written submissions

15 September 2016 – Respondent’s written submissions

22 September 2016 – Applicant’s written submissions in reply.

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