Construction, Forestry, Maritime, Mining and Energy Union Maritime Union of Australia Division v Patrick Stevedores Holdings Pty Ltd t/a Patrick
[2022] FWC 240
•9 FEBRUARY 2022
| [2022] FWC 240 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Maritime, Mining and Energy Union - Maritime Union of Australia Division
v
Patrick Stevedores Holdings Pty Ltd t/a Patrick
(C2021/4819)
| DEPUTY PRESIDENT MANSINI | MELBOURNE, 9 FEBRUARY 2022 |
Dispute arising under an enterprise agreement.
This decision relates to an application made by the Construction, Forestry, Maritime, Mining and Energy Union - Maritime Union of Australia Division (Union) under section 739 of the Fair Work Act 2009 (Cth) (Act) and the dispute resolution procedure at Schedule 1 of the Patricks Terminals Enterprise Agreement 2016[1] (Agreement).
The employer respondent is Patrick Stevedores Holdings Pty Ltd t/a Patrick (Employer). The dispute arises in relation to the Patrick Terminals facility at East Swanson Dock, Port of Melbourne (Terminal). The Terminal is a container stevedoring terminal at which a range of roles are performed by operational employees including but not limited to straddle driving, lashing, driving quay cranes and other vehicles.
The present dispute concerns the Employer’s decision to reject an application for promotion by a Mr Justin Hong.
Preliminary matters
There was no agreed resolution of the dispute following a conference before the Commission and so the matter proceeded to arbitration before the Commission as presently constituted, without objection.
The parties filed an agreed statement of facts, submissions and their respectively proposed questions for determination. The Union filed a witness statement of a Mr Robert Lumsden (Divisional Assistance Victorian Branch Secretary of the Maritime Union of Australia Division of the Union) and the Employer filed a witness statement of a Mr Chris Brewster (Terminal Manager at Port Melbourne). Both witnesses gave evidence at the hearing.
There is no dispute, and I am satisfied, that the Agreement:
a)covers the Union, in accordance with s.201(2) of the Act, pursuant to the decision of the Commission to approve the Agreement[2] and clause 2.1 of the Agreement; and
b)is expressed as binding the Employer and its relevant employees engaged in stevedoring operations as stevedoring employees in an Award classification (Grade 1 to Grade 6) and applies to all employees employed by the Employer at Patrick container terminal operations at East Swanson Dock in the categories established in the Agreement for work in the Employer’s stevedoring operations, pursuant to clauses 2.1 and 3.1 of the Agreement.
There is also no dispute, and I am satisfied, that:
a)the Agreement is read in conjunction with any of the Schedules attached to it, such that Schedule 1 – Dispute Resolution Procedure is to be read as a term of the Agreement;
b)the dispute arises in the workplace in regard to the application of the Agreement or a matter pertaining to the employment relationship, such that the dispute resolution procedure at Schedule 1 is invoked; and
c)the pre-requisites at Schedule 1 have first been followed,
such that the Commission is empowered to resolve the dispute by arbitration pursuant to s.739 of the Act and the agreement of the parties in accordance with the procedure at Schedule 1 of the Agreement.
The facts
The agreed statement of facts is comprehensive and not repeated in its entirety here. A short summary of the facts follows and is not contentious except where indicated.
Mr Hong and the round of promotions in dispute
Mr Hong commenced employment at the Terminal in August 2015, in the role of “Permanent Guarantee Employee” (PGE), following some 5 years’ “supplementary” (casual) employment at the Respondent’s general stevedoring facility at Webb Dock. As PGE, Mr Hong was trained and assessed as competent in straddle driving which he has undertaken on an ad hoc basis ever since.
In December 2016, the commencement of the Agreement saw the removal of the PGE classification at the Terminal and there were then only two categories of employment at the Terminal: Grade 2 Permanent (G2P); and Grade Multi Permanent (GMP). Following the commencement of the Agreement, Mr Hong’s employment was converted from PGE to G2P in accordance with the agreed arrangement.
In March 2019, the Employer and the Union agreed to facilitate the re-introduction of a PGE classification at the Terminal. Under this structure (which presently remains in place), new employees at the Terminal commence as PGE, are the least skilled at the Terminal and earn a minimum income under a different remuneration structure.
In May 2021, the Respondent agreed to convert 16 of its G2Ps at the Terminal to GMP employment with selection to be in accordance with Part A, clause 9.5 of the Agreement.[3] It is not contentious that the GMP classification is perceived as most desirable because employees will typically hold more skills and competencies, have longer tenure at the Terminal, perform “better” (less physically tasking) work and earn higher pay.[4]
Clause 9.5 of the Agreement sets out a points-based framework against which to assess applications for promotion from G2P to GMP (as set out at Attachment A to this decision).
On 31 May 2021, the Employer advertised expressions of interest in converting from G2P to GMP. There were 45 applicants (including Mr Hong) for 16 available positions. The Employer’s position was that, for employees to receive the 20 points under sub-clause 9.5.1(iii)(D), their individual Average Yard Straddle Rate (AYSR) (being the mean number of container moves they performed on shifts operating a straddle carrier) during the previous 6 months should be equal to or above the Terminal AYSR over the same period: resulting, on this occasion, in a required average of 68 or more container moves per shift.[5] On 16 June 2021, Mr Brewster met with the Employee Representative Committee (ERC) and discussed the port specific scoring framework. The ERC’s initial position was that the cut-off should be the Terminal AYSR minus 10 (that is, a benchmark of 58 on this occasion). Mr Brewster considered the ERC’s position but was not persuaded. Mr Brewster’s position was that the parties would follow the same process as in the previous promotion round. The ERC did not agree to the cut-off rate of 68 but ultimately this cut-off rate was (and is) not disputed.[6]
Mr Brewster conducted an assessment of all applicants against the requirements of clause 9.5.1 of the Agreement, allocating points and ranking the applicants against the total. Of the 45 applicants, 35 met or exceeded the Terminal AYSR of 68. Mr Hong had been absent from work for around 3 months during the 6 month assessment period, worked 11 shifts as a straddle driver and achieved an individual AYSR of 63 which meant he was not awarded any points for the criterion at sub-clause 9.5.1(iii)(D).[7] Mr Hong was not successful in selection for a promotion for this reason only.
On 29 June 2021, Mr Hong was notified that he had not been successful in applying for promotion to GMP. The successful applicants were offered positions on a provisional and conditional basis noting the right of unsuccessful applicants to appeal by raising a grievance pursuant to Schedule 3 of the Agreement.
Also on 29 June 2021, Mr Hong lodged a grievance by email.[8] On 2 July 2021, the Employer responded to Mr Hong’s grievance in a letter.[9] An appeal was raised on 5 July 2021 and put forward at a meeting on 12 July 2021 which was also attended by Mr Lumsden.[10] The basis of Mr Hong’s appeal was that he had only driven a straddle carrier 11 times in the 6 month period that was assessed. In this respect:
a) Mr Lumsden said words to the effect that “Justin should be given the opportunity to increase his box rate. Others have been granted this in the past.”
b) Mr Brewster said words to the effect that “That was different as they had not driven at all in the period.”
c) Mr Hong said words to the effect that “I believe I would have achieved the rate if I’d been given the opportunity.”
d) Mr Brewster said words to the effect that “I believe that 11 shifts is sufficient enough to provide an accurate average. You have never achieved the average. I have gone back to 2018. I don’t see how giving you more time will change anything.”[11]
No criticism was made of Mr Hong’s performance and there was no suggestion of disciplinary action being warranted.[12] However Mr Brewster gave evidence of having conducted an analysis Mr Hong’s performance over the previous 12 months, 18 months and 24 months with the result that Mr Hong did not meet an individual AYSR of 68 or the AYSR for the Terminal in any of those extended periods.[13]
By letter of 19 July 2021, the Employer advised that it had considered the appeal and remained of the view that Mr Hong had been afforded sufficient opportunity to achieve his individual AYSR. The letter confirmed that Mr Hong was therefore unsuccessful for conversion from G2P to GMP and as such his grievance had not been upheld.[14]
On 16 August 2021, the Union filed this application on behalf of Mr Hong.
Prior rounds of promotion
Since the Agreement commenced operation, the Respondent has made promotions from G2P to GMP available on 4 occasions including that subject of this dispute. The evidence of the 3 previous rounds of promotion from G2P to GMP under the Agreement involving application of sub-clause 9.5(iii)(D) was that the Terminal AYSR was determined as the basis for setting the port specific scoring framework but following consultation in each case the outcome was as follows:
a)In 2018, the Terminal AYSR over the previous 6 months was 76 but, after consideration of the ERC’s feedback, the Respondent set the minimum at an average of 66;[15]
b)In 2019, the Terminal AYSR was 77 but, after a consultation process involving the assistance of the Commission and discussions with the Union, a rate of 67 was selected;[16]
c)In 2020, the Terminal AYSR was 66 over the previous 6 months and, while the Union and the ERC pressed for a lower number, following consultation the Respondent was not persuaded to change its proposed approach and ultimately this was reluctantly accepted by the Union at that time.[17]
There was also evidence of individual exceptions to the above in 2018 and 2020, as follows:
a)In 2018, a Mr Muraca who did not achieve the Terminal AYSR of 66 raised a grievance under Schedule 3. He had been on a return to work plan and not working full capacity. The Employer agreed to allow him an extra 10 shifts for consideration as part of his assessment for promotion. Once the extra 10 shifts were taken into consideration, Mr Muraca exceeded the rate of 66 that was applied in that round.[18]
b)In 2020, there were 2 employees who had not worked any straddle shifts at all during the assessment period and were provided an opportunity to work straddle shifts because, according to Mr Brewster, they otherwise had no straddle score to be assessed for the purposes of sub-clause 9.5(iii)(D). In those additional shifts, these employees met or exceeded the Terminal average.[19]
There was also some evidence of a Mr Davey who had raised a grievance when unsuccessful for promotion in 2015. That was under a previous enterprise agreement, a different system including a “shift manager score” for allocating points, and under which there was no G2P category and GMPs were called “Permanents”. Mr Brewster’s evidence was that the resolution of that dispute did not result in that individual being given additional shifts and did not result in the decision changing.[20]
Mr Lumsden gave evidence that, in past rounds of promotion, the Employer and the ERC had agreed to a period of assessment of the preceding 6 months to account for the many variables that affect the straddle rates and to give G2P employees a fair chance to accurately demonstrate their performance as straddle drivers (noting they mainly do lashing work in their G2P role and the performance framework is designed to assess their performance as straddle drivers for the GMP role). Further, that the Employer agreed to subtract 10 from the cut-off rate in acknowledgement of those variables.[21] He pointed to an email of Mr Brewster from April 2019 in which Mr Brewster stated “..we are proposing to use 5 months of data as this ensures all employees have sufficient shifts (average of 20) in the yard to provide a reasonable average.”.[22]
Mr Brewster gave evidence that the concept of “a fair chance” has never been discussed with the ERC in relation to the port specific scoring framework.[23]
Mr Brewster was cross-examined about an email exchange relating to a selection process in 2018, whereby he stated: “The last 6 months of data will be used to determine a drivers average number of moves per shift. As per previous practice, the cut-off will be 10 below the average across all G2Ps. It will be a single cut-off figure, points do not change regardless of how many or few moves are completed.” Mr Brewster’s evidence was that this was a result of a specific agreement in order to get supplementary labour in and not a concession about the application of the framework at sub-clause 9.5.1(iii)(D).[24] Mr Lumsden did not have a definitive recollection but was inclined to disagree.[25]
In response to the email of April 2019, Mr Brewster’s evidence was that 5 months’ data was considered a suitable basis to ascertain employee averages on that particular occasion because an average of 20 straddle shifts had been worked in that time – and, further, that he does not believe that data of 20 shifts is necessary to properly establish an individual AYSR.[26]
Without agreeing with Mr Lumsden’s evidence of variables, Mr Brewster accepted that there are many variables that might affect an individual employee’s straddle rate but said that is why an average is used.[27] He also gave evidence of a lack of incentive because, in his experience, granting extra shifts for purposes of assessment for promotion does not result in the most efficient and competent employees being selected for promotion but rather employees can adopt a high level of productivity to boost their averages at a rate that is not sustainable and might be unsafe.[28] Specifically in relation to Mr Hong, Mr Brewster expressed a concern that Mr Hong would be pushing himself “above his abilities” if he were to achieve the necessary rate arising from a further 9 shifts as sought and that the outcome sought in this dispute would be unfair to other applicants.[29]
History of clause 9.5.1
Whilst the previous enterprise agreement provided for selection for promotion, it was not identical to the presently applicable clause 9.5.1.
Mr Lumsden gave evidence of his recollection of the negotiations for the Agreement, that the Union sought to remove a “Shift Manager score” on the basis it considered that criteria to be “overly subjective and capriciously exercised”. He recalled that the scoring framework at sub-clause 9.5.1(iii)(D) was to be “port specific” in replacement of the “Shift Manager score” with the intention of introducing a “more objective and predictable” criteria and to allow different ports to develop different criteria for promoting employees given their different circumstances.[30]
Issues for determination
As Mr Hong met all other criteria for a promotion under clause 9.5, the Union contended that the only part of clause 9.5 of the Agreement to be construed in order to resolve this dispute is sub-clause 9.5.1(iii)(D). Specifically, it sought a determination of the following questions:
What is the port specific scoring framework for the purposes of sub-clause 9.5.1(iii)(D) of the Agreement?
Has the Employer complied with its consultation obligations in respect of that framework?
Has the Employer complied with that framework in respect of Mr Justin Hong’s application to convert from the classification of G2P to that of GMP?
The Union sought orders: that the Employer roster Mr Hong to work at least 9 shifts as a straddle driver; on the basis of Mr Hong’s average rate calculated over the 11 shifts worked in the 6 months preceding his application for promotion plus the 9 shifts worked pursuant to the order, the Employer reconsider Mr Hong’s application for a promotion; and the Employer comply with its obligation to Mr Hong under clause 11.1 and 11.2 of the Agreement.
The Employer contended for an alternate question to be determined and opposed the orders sought:
Whether Mr Justin Hong’s application to convert from classification of G2P to that of GMP should have been successful having regard to the requirements of clause 9.5 of the Patrick Terminals Enterprise Agreement 2016.
In the absence of agreement as to the question(s) for determination, I consider it appropriate to proceed on the basis of the applicant (Union)’s proposed questions. For completeness, whilst it was foreshadowed that the Commission’s decision in this matter might provide some guidance to other aggrieved and unsuccessful applicants in this round of promotions, it was accepted that this dispute is confined to the circumstances of Mr Hong.
The Union’s interpretation
The Union characterised “the thrust” of its submission regarding the proper construction of sub-clause 9.5.1(iii)(D) as follows:
The port specific scoring framework, which was created by the Employer in consultation with the Applicant, included a requirement that the relevant employee be given a fair chance to prove their performance;
Mr Hong was absent from work for much of the relevant assessment period due to an injury, so he was not given a fair chance to prove his performance; and
It follows that it was not open to the Employer to reject Mr Hong’s application for a promotion.
The Union contended that the common intention of the parties in agreeing a “port specific scoring framework” is easily discernible from the text of that phrase and the text of the clause in which it appears:
· First, the scoring framework is “port specific” because each port at which the Employer provides stevedoring services has different operational requirements and, accordingly, the scoring framework developed at the Terminal applies only to employees seeking promotion under sub-clause 9.5.1 at the Terminal.
· Second, the plain and ordinary meaning of the words “scoring framework” points to the existence of a set of objective criteria (a framework) against which people are rated or awarded points (against which people are scored). Clause 9.5 at large sets out a list of objective criteria which govern the process for selection and there is no ambiguity in any of those criteria. This points to the “obvious” conclusion that, in striking the Agreement, the parties sought to remove as much ambiguity as possible from the promotion process – a proposition supported in evidence of Mr Lumsden’s recollection of the negotiations that the parties departed from the predecessor clause to clause 9.5.1 because it was “overly subjective”.
In putting these submissions, the Union accepted that the Employer has the final say when it comes to creating the scoring framework and could have created a harsher and more objective framework. But the Union urged the Commission to hold the Employer to the framework it created and to which the Union says it is bound by operation of clause 9.5.
The Union said that beyond the minor fluctuations from one promotion round to another there is little or no room for movement because “the framework is what the framework is”. The Union asked the Commission to find limited flexibility in the framework and the “underlying structure” as rigid in that employees are allocated 20 points if their average box (straddle) rate is higher than the yard average, and they are allocated no points if their average box (straddle) rate is below the yard average.
The Union submitted that it does not seek to import any “external notions of fairness into the Agreement”. But it strongly contended that another aspect of the framework is that it requires applicants for promotions to be given a “fair chance” to prove their performance and earn the 20 points under sub-clause 9.5.1(iii)(D). In this respect, the Union pointed to the 2020 promotion round when 2 employees who had not driven any straddles during the assessment period were given 20 further drives each to prove their ability which it said effectively amounts to a concession by the Employer that without at least 20 shifts an employee’s performance can not be properly assessed.
Finally, the Union contended that the language of clause 9.5 should be viewed in light of its context – specifically, clause 11 - Communication and Performance Reviews, being another clause that deals with promotions. It asked the Commission to import the content of that clause into clause 9.5 or, in the alternative, to find that clause 11 creates independent obligations that support the making of the orders sought to resolve this dispute. It was also suggested that clause 11 provides an answer to Mr Brewster’s concern about performance dropping off after a promotion, in that the Employer is obliged to support employees in maintaining their performance.
The Employer’s interpretation
The Employer highlighted that no issue was taken with the allocation of points to Mr Hong other than under sub-clause 9.5.1(iii)(D). Further, that it did not appear to be controversial that the “port specific scoring framework” has always related to employees achieving a required benchmark or cut-off in their average straddle rate (or “box rate”) over the designated period; the benchmark being set by reference to the AYSR of all employees performing straddle driving shifts at the Terminal over the relevant period. That is, notwithstanding that in some prior (albeit not immediately prior) rounds of promotion, a different (reduced) figure was adopted following consultation.
The Employer submitted that: Mr Hong did not achieve the Terminal AYSR for the period considered in the promotion round subject of this dispute; it gave consideration to Mr Hong’s contention that he did not have sufficient opportunity to demonstrate his ability to achieve the Terminal AYSR; it was not persuaded that was the case and found that, even if a longer period were assessed, he did not achieve the benchmark average.
The Employer strongly opposed the Union’s contention that Mr Hong was entitled to a “fair chance” and said that, even if he was so entitled, Mr Hong was provided with a “fair chance”. It said the Union’s contentions are misconceived as matters of both law and of merit in the following respects:
The Agreement does not expressly or impliedly impose an obligation on the Employer to provide a “fair chance” in application of the framework at clause 9.5.1;
There is no evidence that a “fair chance” requirement has been agreed in consultation or could be imported on account of past practice;
In the alternative, Mr Hong was not denied a “fair chance” - there is no explanation as to why the 11 straddle driving shifts over a 6 month period was not sufficient opportunity and, even extending the period of assessment of Mr Hong’s performance to a 12 month, 18 month and 24 month period, the criteria was not met for promotion; and
Contended that agreement to a future or prospective period of assessment was not appropriate or fair in the particular circumstances of this case.
Consideration
The principles that apply to the interpretation of an enterprise agreement were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd,[31] drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.[32] The Full Bench in Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context might appear from the text of the agreement as a whole, the place and arrangement of the disputed provision in the agreement, and the legislative framework under which the agreement was made.[33]
The following principles from Berri are particularly relevant to the present dispute:
· The task of interpretation does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome, rather it is one of interpreting the agreement produced by the parties;
· If the agreement has a plain meaning, evidence of surrounding circumstances will not be admitted to contradict the plain language of the agreement;
· Context may be drawn from the evidence of prior negotiations, to the extent that the evidence tends to establish objective background facts known to all parties and the subject matter of the agreement; notorious facts of which knowledge is to be presumed; and evidence of matters in common contemplation and constituting a common assumption; and
· Admissible extrinsic material may be used to aid interpretation of a provision with a disputed meaning but cannot be used to rewrite the provision in order to give effect to an externally derived concept of what the parties’ intention or purpose was.[34]
The Union contended that this dispute would be resolved by construing sub-clause 9.5.1(iii)(D):
“…
(iii) Candidates will be awarded points on the following basis:
…
(D) 20 points based on a port specific scoring framework. The Company will consult with employees and the Union regarding this scoring framework;
…”
In the present matter, I consider that the provision in dispute has a plain meaning and is not ambiguous. The fact that the two parties have presented different interpretations does not mean that the provisions concerned must be ambiguous.[35] In this case, the Union’s interpretation includes compelling propositions but I prefer the Employer’s interpretation as correct.
1: What is the port specific scoring framework for the purposes of sub-clause 9.5.1(iii)(D) of the Agreement?
The provision at clause 9.5 of the Agreement, on its face, confines the criteria to be taken into account in selection for promotion from G2P to GMP. At sub-clause 9.5.1(iii)(D), discretion is afforded to the Employer to develop a scoring framework. It is not contentious that:
· this scoring framework is “port specific”, allowing for consideration of operational requirements of the Terminal; and
· there is a requirement that the Employer consult with employees via the ERC and the Union regarding this scoring framework, albeit such consultation not requiring agreement.
Even if a scoring framework at the Terminal was fixed on its initial development or first implementation under the Agreement (about which there may be some doubt), the components of that framework in my view are limited to individual employee applicants meeting or exceeding a required benchmark in their individual AYSR which is set by reference to the Terminal AYSR, such averages to be calculated over the preceding 6 month assessment period. To meet or exceed the Terminal AYSR results in award of 20 points; failure to meet or exceed results in 0 points under sub-clause 9.5.1(iii)(D).
I prefer the view that consultation, on each occasion, may result in modification. For example, taking into account factors such as the number of roles available, the circumstances of individual applicants for promotion and/or any changed operational or any other matter raised in consultation, the Employer may agree to apply a lower benchmark for a given round of promotions - as it has done following consultation with the ERC and the Union in past rounds of promotion under the Agreement. Such interpretation does not bind the employees, the ERC, the Union or the Employer to positions taken or views expressed in prior rounds of promotion. Indeed that is consistent with the evidence of the approach of the parties in each round of promotion since the Agreement commenced operation and allows for meaningful consultation about the application of this port specific scoring framework with a view to the relevant circumstances at the time, before selections for promotion are finalised.
There is no express reference to fairness in the provision itself and the evidence before the Commission does not establish a common intention in this respect. The Union properly does not seek to import any external notion of fairness to the criteria at sub-clause 9.5.1(iii)(D). There is opportunity to dispute the proposed application of this port specific scoring framework, including at an early stage before consultation concludes. In my view, that is an appropriate mechanism for ensuring that any contention that the Employer’s proposed application of this scoring framework would result in harsh or unfair outcomes in any given promotion round is ventilated and resolved. The parties have in the past availed of Commission assistance in resolving such disputes.
I consider the obligations at clause 11 to establish a mutual obligation to engage in career planning and performance evaluation which plainly complements, but does not alter, the agreed selection criteria for promotion from G2P to GMP at sub-clause 9.5.1.
For completeness, I do not consider the evidence of an individual recollection of negotiations to alter the plain and common meaning.
2: Has the Employer complied with its consultation obligations in respect of that framework?
There is nothing before the Commission which points to a conclusion that consultation did not occur as required by this provision and subject of this dispute.
Although I did not understand a contrary view to be pressed, for completeness I consider consultation with the ERC as nominated representatives of employees covered by the Agreement to meet the obligation at sub-clause 9.5.1(iii)(D). It was also acknowledged that consultation for this purpose does not require agreement of employees and the Union, consistent with well established principles in this respect.
There is evidence of: an initial agreement with the Union about the number of promotions and utilisation of the process at clause 9.5 of the Agreement; following which there was a discussion with the ERC, at a meeting attended by the Union, at which feedback was provided; before the Employer decided how to proceed and conducted its assessment.
After the provisional outcome of the assessment process was notified, there was then a review on account of a grievance raised under Schedule 3, an opportunity for Mr Hong and the Union to discuss considerations relevant to Mr Hong’s particular circumstances and consideration of the matters raised before the outcome of that grievance review was confirmed.
3: Has the Employer complied with that framework in respect of Mr Hong’s application to convert from the classification of G2P to that of GMP?
In the round of promotions relevant to this dispute, and specifically in the case of Mr Hong, the Terminal AYSR of 68 as the benchmark was not agreed but was not disputed. The assessment period was the preceding 6 months. Mr Hong’s individual AYSR was 63.
With regard to the above findings, the question of whether any individual exception should be applied for Mr Hong was properly a matter for consultation and remained at the discretion of the Employer having taken into account the matters raised during consultation. Indeed there remained opportunity following the provisional announcement (during the grievance review process) for the individual circumstances of Mr Hong to be taken into account. There is evidence that the matters raised in relation to Mr Hong were considered by the Employer but did not change the outcome.
Even if the above conclusions regarding an obligation to afford fairness were incorrect, I do not discern any unfairness to Mr Hong. The evidence before the Commission establishes that Mr Hong had the opportunity to achieve the 20 points under this criterion because he had driven 11 shifts in the relevant assessment period of the preceding 6 months. Mr Hong did not meet or exceed the benchmark over the assessment period or indeed the Terminal averages over longer periods of the preceding 12, 18 or 24 months.
Clause 11 entitles Mr Hong to participate in informal discussion to understand business activities and input into decision making processes; as well as formal individual performance evaluation and career planning – which reviews must (among other things, but most pertinently) be objective, transparent and based on practicable and measured mechanisms to deliver competency and enhance career paths, promote productivity, safety and understanding of company policies, job satisfaction and communication within the enterprise. This is not Mr Hong’s first unsuccessful application for promotion. Whilst I decline to make orders in this respect, I recommend that the Employer proactively works with Mr Hong consistent with the process at clause 11 of the Agreement to better understand what is required to improve his individual AYSR, why he has been below average in the past and to reasonably support him in achieving his career goals.
DEPUTY PRESIDENT
Appearances:
Mr P Mohseni of the Applicant.
Mr S Crilly for the Respondent.
Hearing details:
2021.
Melbourne (By Video).
10 November.
Attachment A
9.5 Conversion from G2P to GMP employment
9.5.1 Where the vacancy to be filled involves transferring G2P employees to other permanent positions, the following selection criteria will apply:
(i) The candidate must have the required skills;
(ii) The candidate must not have received a final warning within the previous 12 months;
(iii) Candidates will be allocated points on the following basis:
(A) 1 point per month of service to a maximum of 120 points
(B) 5 points deducted if the candidate has been issued with a formal counselling notice within the previous 12 months;
(C) 10 points deducted if the candidate has received a written warning within the previous 12 months;
(D) 20 points based on a port specific scoring framework. The Company will consult with employees and the Union regarding this scoring framework;
(E) Where two candidates have the same score the candidate with the longest length of service will be appointed to the job.
(iv) To be appointed a candidate must be fit for the inherent requirements of the job. Where a candidate has an injury that means they are not fit for the inherent requirements of the job, but can satisfy the Company that they are expected to be fit to do so within 4 months, and would otherwise be selected for the role, the Company will hold the role for the candidate for 4 months. If after 4 months the candidate is fit for the inherent requirements they will be appointed to the position subject to that candidate's continued eligibility.
[1] AE422740.
[2] [2016] FWCA 9082.
[3] Statement of Agreed Facts at 17.
[4] Statement of Agreed Facts at 10.
[5] Witness Statement of Mr Chris Brewster at 40.
[6] Statement of Agreed Facts at 27; Statement of Mr Brewster at 41 and CB-1; Evidence of Mr Brewster on Transcript at PN143, 144, 149.
[7] Statement of Agreed Facts at 28; Statement of Mr Robert Lumsden at 42.
[8] Witness Statement of Mr Brewster at CB-2.
[9] Witness Statement of Mr Brewster at CB-3.
[10] Witness Statement of Mr Brewster at CB-4.
[11] Statement of Agreed Facts at 35.
[12] Evidence of Mr Brewster on Transcript at PN212-213.
[13] Witness Statement of Mr Brewster at 50.
[14] Witness Statement of Mr Brewster at CB-5.
[15] Witness Statement of Mr Brewster at 29.
[16] Agreed Statement of Facts at 24.
[17] Agreed Statement of Facts at 25.
[18] Agreed Statement of Facts at 22.
[19] Witness Statement of Mr Brewster at 35.
[20] Agreed Statement of Facts at 23.
[21] Witness Statement of Mr Brewster at 23-24.
[22] Statement of Mr Lumsden at 23-24 and RL-1.
[23] Witness Statement of Mr Brewster at 27.
[24] Evidence of Mr Brewster on Transcript at PN238.
[25] Evidence of Mr Lumsden on Transcript at PN74.
[26] Witness Statement of Mr Brewster at 27, 52 and 53.
[27] Evidence of Mr Brewster on Transcript at PN215.
[28] Witness Statement of Mr Brewster at 36-37.
[29] Evidence of Mr Brewster on Transcript at PN221-222.
[30] Statement of Mr Lumsden at 15.
[31] [2017] FWCFB 3005 (Berri).
[32] [2014] FWCFB 7447 (Golden Cockerel).
[33] Berri at [114]; Golden Cockerel at [41].
[34] Berri at [114].
[35] National Union of Workers v CHEP Australia Limited[2018] FWC 3797 at [44].
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