Australian Workers' Union, The v Oceania Glass Pty Ltd
[2024] FWC 467
•12 AUGUST 2024
| [2024] FWC 467 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Workers’ Union, The
v
Oceania Glass Pty Ltd
(C2023/3482)
| COMMISSIONER MIRABELLA | MELBOURNE, 12 AUGUST 2024 |
Alleged dispute about matters arising under an enterprise agreement.
This decision arises from an application by the Australian Workers’ Union (the Union) for the Fair Work Commission (the Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (the Act). It concerns an employee of Oceania Glass Pty Ltd (the Company), Mr Gavin Gardner.
The dispute arises from provisions of the Oceania Glass Dandenong and AWU Enterprise Agreement 2020-2024 (the Agreement) regarding the internal filling of a vacancy and the inability of the Company’s selection panel to reach a unanimous decision endorsing Mr Gardner as a candidate to fill a vacancy in the float operations division of the company.
The issues in dispute concern whether the selection panel’s decision was reasonable and if not, whether the Commission can impose a different outcome to that of the selection panel. Further, if the Commission could impose a different outcome, what would be an outcome that was appropriate.
The matter was listed for conference on 23 June 2023, which the Company did not attend. Further conferences were attended by both parties on 6 July 2023 and 24 August 2023. The matter remained in dispute, so directions for the filing and service of materials were issued on 31 August 2024, after which the matter proceeded to arbitration.
On 8 September 2023, following an application by the Union, I issued an order for the Company to produce, amongst other things, the guides used by the selection panel in conducting the interviewing of candidates. The Company provided my chambers with the original copies of the Behavioural Event Interview Guides (the Guide), as well as copies which were de-identified and transcribed by the Company to ensure anonymity of panel members. The transcribed copies were provided to the Union on 19 September 2023.
At the hearing of the matter on 26 February 2024, Mr Patrick Reilly appeared for the Union and Mr Andrew Crocker appeared for the Company.
The following witnesses gave evidence for the Union at the hearing:
· Mr Mark-Ashley Marcus, and
· Mr Gardner.
The following witnesses gave evidence for the Company:
· Mr Justin McKenzie,
· Mr Rob Paterson, and
· Mr Sunny Singh.
On 17 May 2024, I requested the parties provide further submissions regarding whether one of the selection panel members, Mr Scott Wells, was elected as per clause 10.1.5(c) of the Agreement. The parties in response filed a further agreed statement of facts and submissions.
Background
The Company operates a glass manufacturing facility in Dandenong South in Melbourne.
The Agreement reflects the division of the Company’s operation between ‘processed products’, which is dealt with in Part 5 of the Agreement, and ‘float operations’ in Part 4 of same. Mr Gardner has been employed in the ‘processed products’ division of the Company.
The Company had decided that it had six vacant positions in the despatch area of the site’s float operations and on 24 February 2023 advertised for vacant positions across its float operations at the site, but the positions were not filled. Within two weeks, the Company published an advertisement for the vacant positions across the site.
Five applicants applied for the vacant positions and four were shortlisted, including Mr Gardner. A unanimous decision was reached to select three of the shortlisted applicants. Mr Gardner was not selected. The selection panel consisted of four members, and they were evenly split on the issue of whether Mr Gardner should be selected. The Agreement provides that the selection panel consists of two team representatives and two management representatives.
Mr Paterson and Mr Singh, the management representatives, voted against selecting Mr Gardner to a vacant position and Mr Marcus and Mr Wells, the team representatives, voted in favour. The Agreement requires the selection panel to reach a unanimous decision.
On 3 April 2023, Mr Gardner was informed that he had not been selected and on the following day, notice was given to the Company of a dispute over the decision. Over the next couple of months, the Union and the Company had various discussions pursuant to clause 8.2 of the Agreement.
This was Mr Gardner’s third unsuccessful attempt in applying for a position in the Company’s float operation division.
The selection process to fill a new role first involves potential candidates being interviewed by the selection panel. During the interview, each panel member used the Guide which provides predetermined questions for the panel to ask each candidate so that they may be scored accordingly. The maximum score, after combining the four panel members’ individual scores, is 264. The aggregate interview scores for each of the candidates were:
· Ms Soni Pannu: 176
· Mr Stephen Dolphin: 173
· Mr Roger Morgan: 167
· Mr Gardner: 144
The Guide has selection criteria based on the nine dot points listed in the advertisement for the role (the Advertisement) that in turn reflect the criteria in clause 10.1.5. The Union disputes one of the selection criteria, that being ‘organisational skills’, because they say it is not prescribed by the Agreement. The nine dot points listed in the Advertisement are:
· Commitment to safety and quality
· Good communication skills
· Adaptability in a changing work environment
· Commitment to customer service excellence
· A flexible work approach and understanding work ethic in order to support and drive team goals
· Well-developed problem solving and decision making skills
· Able to work under pressure and follow systems and procedures
· Motivated and ability to work in a team environment
· Excellent Time and Attendance
The options for scoring each criterion in the Guide are as follows:
· A rating of 1-2 means ‘poor’, which is defined as ‘[l]ittle or no evidence for the required behaviours. Unable to provide examples’.
· A rating of 3-4 means ‘marginal’, which is defined as ‘[s]ome evidence for the required behaviours. Gave reasonable responses’.
· A rating of 5-6 means ‘strong’, which is defined as ‘[e]vidence for most of the required behaviours. Gave strong examples’.
The responses by the four panel members in the interview guides indicate Mr Gardner received the following scores out of six for the following selection criteria:
· General: 4, 3, 3, 3
· Commitment to safety: 4, 3, 4, 4
· Quality assurance (+ following systems and procedures): 3, 3, 3, 3
· Customer service excellence: 3, 2, 3, 2
· Flexible work approach / adaptability: 4, 2, 3, 4
· Commitment to culture change: 3, 3, 4, 4
· Teamwork: 4, 3, 3, 4
· Organisational skills (+ working under pressure): 3, 2, 3, 4
· Communication: 4, 4, 3, 3
· Problem solving (includes decision making): 3, 3, 3, 3
· Self-appraisal: 3, 3, 3, 3
The panel did not provide any reasoning for this scoring. As they did when interviewing the other applicants, they made notes of Mr Gardner’s responses to their questions.
There is no dispute between the parties, and I accept, that the provisions of the dispute settlement procedure have been followed prior to the application being made to the Commission. Those steps of the dispute settlement procedure did not resolve the matter.
Relevant provisions of the Agreement
There is no dispute that as a result of the Advertisement of the vacant positions pursuant to clause 10.1.4 of the Agreement, clause 10.1.5 has been enlivened. Clause 10.1.4 provides for existing employees to apply for vacant positions before the Company advertises for vacant positions externally.
Amongst other things, the dispute is said to arise from clause 10.1.5.
Clause 10.1.5 provides:
‘10.1.5 Team Selection Process
a. Where a vacancy exits that requires the position to be advertised the following process will be observed:
b. The Area Manager and HR Manager in consultation with team members will examine the position description and selection criteria so that there is a clear understanding of the qualifications, attributes and experience required to best carry out the duties and responsibilities of the position(s).
c. A selection panel consisting of 2 management representatives and 2 elected, trained team representatives will shortlist applicants based on the following criteria, considered as a whole:
·Commitment to safety and quality,
·Good communication skills,
·Adaptability to change in work environment,
·Commitment to customer service excellence,
·Flexible work approach in order to support team goals,
·Well-developed problem solving and decision making skills.
·Motivation and ability to work in a team environment
·Time and Attendance
Generally, an Employee with a current warning will not be shortlisted.
Where an applicant has a current warning, the interview panel at time of shortlisting will meet with the Employee and the local manager to discuss the merits of the warning and subsequent improvement demonstrated by the Employee. The panel has the discretion to allow the employee to be interviewed based on that meeting.
The selection panel will then interview the shortlisted applicants against the same criteria.
The selection panel must reach a unanimous decision in their selection of the successful applicant. If the selection panel fails to reach agreement, the panel may request the joint assistance of the appropriate HR Manager and, if the Employees choose, the Site Delegate to assist in resolving the matter. If after such assistance the Panel is still unable to reach a unanimous decision the next most appropriate stage of the DSP will be enacted.
Management and team representatives will receive appropriate training within six months of being elected (ie, EEO, Behavioural Event Training) before being able to sit on a selection panel. The training program will include initial training as well as ongoing refresher training within 2 years.
The recruitment and selection process should be completed within four (4) working weeks with unsuccessful applicants notified within 24 hours of a decision made and at that stage be offered the opportunity to receive feedback. Unsuccessful applicants who dispute the selection panels decision have up to three (3) working days to lodge an appeal.
Leadership roles in the first instance will be advertised within the local work group and if no suitable candidate is found then the role will be readvertised site-wide. External recruitment will be considered after both local group and site wide options have been exhausted.
All vacancies will be advertised internally in the first instance.
The advertisement for the vacancy shall take the following form:’
With regards to the elected and trained team members, in around 2018 glassworkers voted for a proposal for permanent members of the selection panel and proceeded to vote for Mr Marcus and Mr Warren Geyer.
At a later meeting, the date of which has not been specified, the glassworkers voted in favour of a proposal to offer the other employees, who had expressed an interest in being panel members, positions as back-up panel members. These back-up members included Mr Wells. When panel members could not participate in a selection process, a back-up member would serve on the panel instead. All members of the panel including back-up members received the requisite training for their roles.
Clause 8.2 concerns the dispute settlement procedure and 8.2.7 provides:
‘8.2.7 If the dispute is not settled, the matter may be submitted to FWC by either party. FWC will endeavour to settle the matter by conciliation in the first instance and, should conciliation fail, by arbitration. FWC may give all such directions, orders and/or recommendations and do such things necessary or expedient for the speedy and just hearing and determination of the dispute.’
The issues for determination
The parties agreed that the questions for determination are:
In deciding whether Mr Gardner would fill a vacant float despatch position (the vacant position), the selection panel did not reach a unanimous decision, as required by clause 10.1.5 of the Agreement.
Question 1: Was the decision reached by the selection panel reasonable?
Question 2: If the answer to Question 1 is ‘no’, does the Commission have jurisdiction to impose a different outcome on Mr Gardner’s application for the vacant position?
Question 3: If the answer to Question 2 is ‘yes’, what is the appropriate outcome?
Question 1
The principles to be applied to the interpretation of an enterprise agreement are well-articulated and settled.[1] The first step is to determine whether the disputed terms of an agreement have a plain meaning or are instead ambiguous or susceptible to more than one meaning. The language of disputed terms is to be construed objectively, having regard to both context and purpose, and a narrow or pedantic approach to interpretation is to be avoided.
I have applied these well-established principles without repeating them.
The first question for arbitration is ‘was the decision reached by the selection panel reasonable?’ The question arises because the decision regarding Mr Gardner’s suitability to fill an advertised internal vacancy was evenly split. Was it reasonable for a difference of opinion to exist between the members of the selection panel? The parties only argued the point with regards to one half of the split decision. That is, submissions related only to the reasonableness of the panel members who did not endorse Mr Gardner and, accordingly, this decision as it relates to Question 1 is concerned with whether it was reasonable for Mr Paterson and Mr Singh to not select Mr Gardner.
I have had regard to all of the submissions, some of which are summarised below.
The Union answers this first question in the negative, with the Company having the opposing view.
The Union seeks to rely on the meaning of ‘reasonableness’ as it has been determined in cases where the question of whether something was reasonable related to decisions made by an employer in dismissing an employee and the reasonableness of directions given by an employer to its employee: Construction, Forestry, Maritime, Mining and Energy Union (105N) & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (Mt Arthur Coal).[2] The Union also relies on the decision in Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd (BHP Coal).[3] In their submissions, the concept of ‘reasonableness’ as per Byrne & Frew v Australian Airlines Ltd[4] and Mt Arthur Coal[5] was applied in a different context in BHP Coal and, therefore, should apply in this matter.
I accept the Company’s submission that Deputy President Asbury, as she was then, limited the application of the above authorities to the facts in BHP Coal.[6]
The facts in the cases relied upon by the Union are not analogous to the matters before me. Those authorities are concerned with the actions of an employer in dismissing an employee or giving them a warning or a direction. The relevant concerns of this matter relate to the actions of employees, who effectively volunteer to interview, score and assess the suitability of fellow employees.
In addition to construing the meaning of the Agreement on settled principles that are not in dispute,[7] the Company says that I must have regard to the principle of ‘managerial prerogative’ outlined in the decision of Construction, Forestry, Mining and Energy Union v HWE Mining Pty Ltd.[8]
The Company asserts that the Agreement merely prescribes a process for the panel to select a candidate, but that it does not obligate the Company to employ the candidate selected by the panel.[9]
I accept the Company’s submission that the Agreement does not impose an obligation on the selection panel to select an internal candidate and that clauses 10.1.4 and 10.1.5 facilitate a process for the panel to select an internal candidate prior to any external advertisement to fill a vacancy. That much is made clear from the plain wording of clause 10.1.4 where provision is made for external advertisements when the other internal options for filling the vacancy have been exhausted.
The Company submits that the principles of interpretation urge restraint before determining what is fair or reasonable and that this restraint is exercised by a decision-maker making findings based on the express terms of an enterprise agreement.[10]
The Company says that the scope of clause 10.1.5 is to provide a fair process for existing employees to put themselves forward to fill a vacancy and a panel process to filter candidates and that the unanimous selection of candidates is effectively a list of recommended candidates that the Company may consider when filling a vacancy. Further, they submit that, therefore, the Company is free to reject the panel’s recommendation. They submit that to do otherwise would effectively self-execute an employment contract between the Company and the employee.[11]
The Company submits that the clause is so structured because an employer cannot be compelled to employ someone against their wishes. Consequently, the Company submits that the Commission has no jurisdiction to order that Mr Gardner be employed to fill the vacant position.
The Union disputes the characterisation of the panel’s selection as a ‘recommendation’. The Union says that the words in the heading of clause 10.1.5 are ‘Team Selection Process’, not ‘Team Recommendation Process’. The Union submits that the use of the word ‘selection’ throughout the clause supports their contention that the process in clause 10.1.5 unambiguously provides for the selection of a successful candidate who will fill a vacancy,[12] and that the Company’s preferred interpretation of the clause would require the insertion in clause 10.1.5 of the word ‘recommendation’ and the re-writing of the clause.
The Union says that clause 10.1.5 binds the Company to follow the decision of the selection panel and says that the clause is silent on the implications of a unanimous panel decision because that decision effectively is the selection of the person to fill the vacancy. The Union further submits that to have selected Mr Gardner would not be a new contract, but merely a matter of classification. That is, Mr Gardner is employed as a ‘team member’ and he would continue to be employed as a ‘team member’ in the float despatch section of the Company.
The Act does not provide for a preference of interpretation in favour of any particular party. Section 739(5) dictates that I cannot make a decision that is inconsistent with the Agreement. I must interpret the Agreement to give effect to its clauses.
If the Company having entered into this Agreement has had the effect of overriding ‘managerial prerogative’ in some way, that is the choice they have made. In these circumstances, the Commission cannot turn back the clock and interpret the Agreement as if the Company’s managerial prerogative remains unfettered. The question of whether a unanimous panel decision must be accepted by the Company is determined by a plain reading of the relevant words. I accept the Union’s submissions that the ‘selection panel’ is not the ‘recommendation panel’ and that the Agreement would have specified as much if the intention was a mere recommendation. That the Company may be required to take further steps to give effect to a unanimous panel decision does not change the effect of a unanimous decision, being a decision on who will fill a vacancy. That much is clear from the evidence on which the Company seeks to rely. Mr McKenzie, the Company’s National Logistics Operation Manager, said at the hearing:
‘…once the panel have reached agreement and there’s an applicant put forward, then there's a step where the hiring manager completes what we call a pro forma form, so a payroll form for a transfer between different departments and cost centres. So it has to be signed off and authorised.’[13]
According to Mr McKenzie’s unchallenged evidence, the steps the Company takes are effectively administrative in nature. The Company completes pro forma paperwork to effect interdepartmental transfers within the Company. The Company does not make a decision as to whether they accept or reject the selection panel’s unanimous decision. The decision that is made is to authorise the payroll form.
The Union submits the purpose of clause 10.1.5 is to prescribe a selection process for vacant positions and that the Agreement is intended to create binding obligations in respect of the selection process.[14] They submit that the advertisement prescribed by the Agreement contains a list of criteria that are to be applied in the selection of candidates.
Amongst other things, the Union further submits that Mr Paterson and Mr Singh appear not to have had regard to relevant criteria, including the skills and attributes of Mr Gardner. They say that if they had applied the criteria, they would have concluded that Mr Gardner was suitable to fill one of the vacant positions.
Further reasons given by the Union to support their submission that the decision not to select Mr Gardner was unreasonable include a lack of reasoning for Mr Gardner’s poor scoring, that the decision departed from common practice and that the Advertisement was changed from the standard format in the Agreement.
The Union says that any applicant would fail in being selected if they did not demonstrate the required attributes listed in dot point form in the Advertisement, and that Mr Gardner did satisfy the criteria. They say Mr Gardner satisfied the criteria because of the total 176 separate responses rated by the panel for all of the candidates, the following results were entered:
· 23 responses were rated as ‘strong’
· 6 responses were rated as ‘weak’
· 1 response was rated as ‘between marginal and strong’
· 146 responses were rated as ‘marginal’
That does not change the scoring, in that Mr Gardner was the lowest scoring candidate. In addition, of the two options within the ‘marginal’ rating, 67.5% of Mr Gardner’s ratings were of the lower score of 3, not 4.
Mr Marcus, one of the team representatives who did endorse Mr Gardner, conceded that he did not give Mr Gardner a high score and further that it was not unreasonable to select someone who only ‘just scrapes over at 50 per cent score’.[15] In his re-examination, Mr Marcus explained that the reason he believed it was not unreasonable to deny Mr Gardner selection was because ‘[i]f the interview process was one, I guess was one job with a number of multiple applicants, then I would say that that was probably a correct thing, but in this instance there was multiple jobs. There was more jobs than applicants’.
Mr Marcus’s view is that it was reasonable to select Mr Gardner, even with a low overall score, because there were more vacancies than internal candidates.
The Agreement provides that a job will be advertised externally if it is ‘not filled’ by an internal candidate. The Agreement does not make the sort of distinction that is made by Mr Marcus. That is, the Agreement does not apply a lower standard against which internal candidates are assessed where the vacancies exceed candidates. If that lower standard were to be applied, that would be reflected in the wording of clause 10.1.5, but it is not.
The Union submits that ‘marginal’ results cannot justify the decision not to select Mr Gardner, and that under the ‘marginal’ heading in the Guide, further detail and meaning are given to this rating by the words ‘[s]ome evidence for the required behaviours. Gave reasonable responses’ (the further words).
They argue that a marginal response therefore demonstrates the required attributes and submit that ‘[a] response that provides some evidence of the required attributes is one that provides some ground for belief, and that tends to prove, that the employee possesses the required behaviours’ (footnotes omitted).[16]
Even when taking into account the further words the Union says support its interpretation, I do not accept the Union’s reasoning that the attributes scored as ‘marginal’ in the various completed Guides are results that necessarily demonstrate Mr Gardner possessed the requisite degree of these attributes. If that were the case, uncommercial and perverse results could ensue. Possessing some of the behaviour in a marginal sense cannot equate to having the required behaviours for any particular attribute.
In any case, it is not disputed that Mr Gardner received the lowest score, and that it was considerably lower than the next lowest score of Mr Morgan, whose aggregate score was 167.
The Union submits that under clause 10.1.5, where there are more positions than candidates, the usual practice has been to select candidates if they achieved a minimum rating of 50% of the maximum interview score. They further submit that under these usual practices, Mr Gardner would have been selected.[17] I do not accept the Union’s reasoning in this regard. If the Agreement intended for the selection process to be a mere arithmetic exercise, with an effective pass or fail at the 50% mark, then this would have clearly been detailed in the Agreement. Instead, the Agreement provides for a process that gives panel members the discretion in making their decision and contemplates a lack of uniformity amongst the panel members by providing a requirement for a unanimous decision and in the event that a unanimous decision eludes the panel, a dispute resolution process.
The ordinary meaning of the adjective ‘marginal’ is to describe something that is on the edge, something that is not certain one way or another. The Macquarie Dictionary includes the following definition: ‘situated on the border or edge’.[18] That ordinary meaning is applied to Mr Gardner’s marginal scores.
In light of the fact that Mr Gardner’s overall interview score of 54.5% was marginal in itself, and that all his scores were either marginal or poor, it was open to and reasonable for a panel member to decide not to recommend Mr Gardner based on these scores.
Mr Paterson, who did not select Mr Gardner, says that whilst the score, which is assessed against the criteria, is part of the selection process, it is not the only consideration. He says that after speaking with other staff, he formed the view that other relevant staff did not want to work with Mr Gardner.
In oral submissions at the hearing, the Union said, ‘Mr Paterson has accepted that his decision was based solely on the opinions of the team leaders’. In cross-examination, Mr Paterson responded in the affirmative when asked whether his decision was ‘really based on the opinions of people that you spoke to about Mr Gardner’. Mr Paterson did not base his decision ‘solely’ on the opinions of team leaders. He clarified in re-examination that Mr Gardner’s interview scores were considered as part of the criteria for selection.
For the reasons below, even where other factors were taken into account, it would be open to Mr Paterson and Mr Singh to make a decision not recommending Mr Gardner.
Mr Singh gave evidence that following the interview, he discovered Mr Gardner would not integrate well into the despatch team and that he only put effort in to building the necessary skills for the role because he wanted to get out of his current work area. Mr Singh said that it was this information, as well as Mr Gardner’s score in the interview Guide, that meant he voted against selecting Mr Gardner as a successful applicant.
The Company submits that the decision to reject Mr Gardner was not unreasonable and that if I find it was unreasonable, it is not appropriate for the Commission to determine the matter itself. They submit instead that Mr Gardner’s application ought to be remitted back to the Company’s selection panel for re-determination.[19]
The Company says that the process in clause 10.1.5 is not intended as a rubber stamp for internal applications. That is not disputed by the Union.
The Company submits that to have selected Mr Gardner would have been contrary to objectives of the Agreement, specifically clauses 1.6.1(d) and 2.6 that discuss, amongst other things, developing a culture of excellence and recognising that security of employment is based on long-term business success.
The Company submits that the recruitment of unsuitable staff undermines the objectives of job security and business success and that ‘a necessary incidence of clause 2.6 is that a selection may need to reject candidates if deemed unsuitable’.[20] They say that these provisions are relevant in my formulation to Question 1.
As noble as these objectives in clauses 1.6.1(d) and 2.6 are, I am not persuaded to give them weight in interpreting the relevant provisions to answer Question 1. At best, these objectives are mere aspirations and at worst, they are motherhood statements. In any case, they do not create any binding obligations. The words ‘[t]o further develop’ and to ‘recognise’ are effectively meaningless.
With regards to the Advertisement of the vacancies, the Union submits the Advertisement departed from the prescribed advertisement in the Agreement in the following respects:
· Applicants were said to be required to demonstrate ‘adaptability in a changing work environment’, rather than ‘adaptability to change in the work environment’;
· Applicants were said to be required to demonstrate a ‘flexible work approach and understanding work ethic in order to support and drive team goals’, rather than ‘a flexible work approach in order to support team goals’;
· Applicants were said to be required to demonstrate an ability ‘to work under pressure and follow systems and procedures’;
· A current forklift competency for 10 tonnes and above was not identified as an advantage;
· Applicants were said to be required to be willing to take on additional duties; and
· Applicants were required to submit a written application to Mr Paterson, instead of the HR Manager.
The Union submits that the Company’s alteration of the advertisement prescribed in the Agreement weighs in favour of a finding the decision not to select Mr Gardner was unreasonable, as it meant the selection criterion of forklift competency was removed and a higher criteria than those prescribed by the Agreement was imposed in respect of:
· Adaptability, by presupposing the existence of change in the work environment, rather than the possibility of change, and
· Flexibility, by requiring employees to demonstrate an understanding of work ethic and to not only support, but also ‘drive’ team goals.
The words in the pro forma advertisement in the Agreement and the actual Advertisement are substantially the same, with the additional inclusion of the words ‘adaptability in a changing work environment’ and ‘a flexible work approach and understanding work ethic in order to support and drive team goals’.
These words reflect ‘adaptability to change within the work environment’ and ‘a flexible work approach in order to support team goals’ in the criteria in the Agreement.
The words ‘able to work under pressure and follow systems and procedures’ were also included in the Advertisement but were not in the prescribed criteria.
The Agreement states, ‘the advertisement for the vacancy shall take the following form’. It is not unambiguous. It does not say the advertisement must be in the following form. The advertisement in the Agreement is in the nature of a template advertisement. Common sense requires some flexibility so that the Company is able to tailor job advertisements for specific job vacancies.
The amendments to the Advertisement are inconsequential and I do not find anything in the changes that would have disadvantaged Mr Gardner or contributed in any way to any ‘unreasonableness’ of a decision not to select him. The Union further submits that section 8 of the Guide headed ‘Organisational Skills’ is not consistent with the criteria listed in clause 10.1.5. They submit that insofar as it was a consideration in the panel’s decision-making, it was not reasonable.
Whether organisational skills are necessarily embedded in any of the criteria listed in the clause is an arguable case and, therefore, organisational skills are not necessarily irrelevant. In any case, the Agreement does not mandate the factors and the respective weight that is required to be given to each factor when a panel member decides on whether or not to select a candidate.
Clause 10.1.4 is titled ‘Team Leader, Assistant Team Leader, Team Member Selection Process’ and immediately following it, clause 10.1.5 is titled ‘Team Selection Process’. Clause 10.1.5(a) mandates a process that ‘[w]here a vacancy exits that requires the position to be advertised the following process will be observed’. That is clear from the use of the word ‘will’, which is given its ordinary meaning. In the context used, the word ‘will’ is used to denote a certainty that a certain action will follow.
The wording of clause 10.1.5(b) provides for an examination of the position description and selection criteria needing to be undertaken by the Area Manager and HR Manager in consultation with ‘team members’, ‘so that there is a clear understanding of the qualifications, attributes and experience required to best carry out the duties and responsibilities of the position(s)’. The requirement here is for an examination of the position description and selection criteria in order that there is a clear understanding of what is required to ‘best carry out the duties and responsibilities of the position(s)’.
Clause 10.1.5(b) is the first stage in the internal process to fill a vacancy with an internal candidate and is about consultation between management and ‘team members’ in order to clarify the requirements of the advertised jobs.
The reference to ‘team members’ is not a reference to the ‘team representatives’ or the ‘selection panel’. It is a reference to the broader group of employees who are ‘team members’. As such, clause 10.1.5(b) is concerned with clarity of understanding the job requirements as opposed to mandating selection criteria.
It is followed by clause 10.1.5(c) which makes specific reference to a ‘selection panel’. The clause does not require the selection panel to have regard to all the matters referred to in clause 10.1.5(b). If that was the intention, then these matters would have been included in the specific dot points in clause 10.1.5(c) that mandate the criteria for shortlisting and scoring candidates.
Clauses 10.1.5(b) and (c) are different. The former imposes a requirement for an examination of the position description and selection criteria. This is in the endeavour of getting ‘a clear understanding’ of ‘the qualifications, attributes and experience required to best carry out the duties and responsibilities’ of the advertised job.
The clause is aimed at assisting team members to get better clarity about what is required around a specific job. The mandate is on the Area Manager and the HR Manager to examine the position description and the selection criteria ‘in consultation with’ team members. ‘In consultation with’ requires communication between the Area Manager and HR Manager, and ‘team members’.
Clause 10.1.5(c), however, lists a set of criteria that does not change from one job vacancy to the next. It is this list of criteria, against which the selection panel ‘will’ interview and grade the candidates. The Agreement is clear in so far as the candidates are assessed on the listed criteria ‘considered as a whole’.
That Mr Paterson and Mr Singh did not, in the Union’s submission, give due consideration to Mr Gardner’s experience and qualifications does not make their decision to not select Mr Gardner unreasonable. I accept the Company’s submission that the Agreement does not mandate a specific process for each decision-maker to follow in deciding on the selection of an internal candidate. That is, the Agreement is silent about other considerations that ought to be taken into account and what weight such matters should be given.
Clause 10.1.5(c) informs the panel members, who are volunteer employees, as to the matters they must take into consideration ‘as a whole’ in shortlisting and assessing candidates. The Agreement imposes an obligation on the panel. That obligation is that they ‘must reach a unanimous decision in their selection of the successful applicant’. The Agreement does not tell them how to do so. How each panel member is to arrive at their respective decisions is not mandated, and the decision-making process and weight of relevant matters is necessarily left to each individual panel member who, through their own unique analysis, will make a decision. The requirement for unanimity perhaps recognises that panel members will have different perspectives on the relevant matters for successful selection.
Mr Gardner’s score against the listed criteria was the lowest score of all the internal candidates interviewed. It was a marginal score of 54.5%. All of the panel members gave him low scores with an aggregate score on the margin. In these circumstances, it was open to any of the panel members to make a decision either way.
Mr Paterson said he took into consideration Mr Gardner’s score and the views of relevant employees, who advised him that they did not wish to work with Mr Gardner. In the context of selecting a ‘team member’, in this instance to work in and with the float despatch team, it is not unreasonable for Mr Paterson to decide not to select Mr Gardner.
Mr Singh says he did not believe that Mr Gardner had all the necessary skills for the job and, using the interview results and negative feedback from team leaders, he decided not to select Mr Gardner.
The Union has criticised Mr Paterson and Mr Singh for relying on the opinions of other team members as hearsay. The issue is whether it was reasonable for them to factor these opinions into their decision-making. The advertised position had the requirement of the ability to work in a team environment. In deciding on the suitability of a candidate, it is not unreasonable to seek the views of team leaders with whom Mr Gardner, if successful, would be working.
It is the decision of Mr Paterson and Mr Singh not to select Mr Gardner that is at the centre of this dispute. The Union’s submissions argue for an interpretation of the Agreement that reads additional matters into the Agreement. The words of the Agreement speak for themselves. The Agreement does not direct members of the selection panel to give weight to particular criteria or to give reasons for the decision each one of them makes. The decision-making process is left to each panel member, who makes a decision with the context of the discretion inherent in a non-prescriptive process. It is self-evident that an individual selection panel member’s decision is not required to be identical to another member’s decision. For the reasons above, I find it was not unreasonable for Mr Paterson and Mr Singh not to have selected Mr Gardner.
Conclusion
On the basis of the foregoing, the questions for determination proposed by the parties are answered in the following manner:
Question 1: Was the decision reached by the selection panel reasonable?
Answer: Yes
The answer to Question 1 being ‘yes’, it is not necessary to answer Question 2 and Question 3.
The dispute is determined accordingly.
COMMISSIONER
Appearances:
Mr P. Reilly for the Union.
Mr A. Crocker of counsel for the Company, instructed by Rigby Cooke Lawyers.
Hearing details:
2024
Melbourne
26 February
[1] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005; The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447.
[2] [2021] FWCFB 6059.
[3] [2022] FWC 1699.
[4] [1995] HCA 24.
[5] [2021] FWCFB 6059.
[6] Exhibit R1 at paragraph 44.
[7] WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 at [114].
[8] [2011] FWA 8288; transcript of the hearing on 26 February 2024 (transcript) at PN648-PN660.
[9] Transcript at PN669; exhibit R1 at paragraph 56.
[10] Exhibit R1 at paragraphs 6-8.
[11] Transcript at PN676.
[12] Exhibit A3 at paragraphs 16, 20.
[13] Transcript at PN271.
[14] Exhibit A2 at paragraph 22.
[15] Transcript at PN103.
[16] Exhibit A2 at paragraph 53.
[17] Exhibit A2 at paragraphs 80-81.
[18] Macquarie Dictionary (4th ed 2006) ‘marginal’ (def 2).
[19] Transcript at PN638.
[20] Exhibit R1 at paragraph 5.
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