Construction, Forestry, Maritime, Mining and Energy Union v Batchfire Callide Management Pty Ltd

[2022] FWC 1468

[2022] FWC 1468

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union
v

Batchfire Callide Management Pty Ltd

(C2022/1068)

DEPUTY PRESIDENT LAKE BRISBANE, 9 JUNE 2022

Application to deal with a dispute regarding a recruitment and selection clause in the Enterprise Agreement

1. The Construction, Forestry, Maritime, Mining and Energy Union (the Union/the Applicant) has filed a dispute against Batchfire Callide Management (the Respondent) about the proper construction of clause 8.2 of the Callide Mine Union Enterprise Agreement 2021 (the Agreement).

1. On 11 February 2022 the Applicant filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission) for the Commission to deal with the Dispute.

1. A conference was held on 17 February 2022 where the matters were ventilated however no resolution was forthcoming. Consequently, I made directions and listed the Dispute for arbitration. Both parties filed and served witness statements and submissions in accordance with my directions. A hearing was conducted in person on the 27 April 2022 and the appearances were Mr Christopher Newman for the Union and Mr Patrick Lawler of Ashurst requested permission to represent the Respondent.

1. I am required to consider whether permission ought to be granted under s.596 of the Act. Given the nuanced arguments in an agreement interpretation matter, I was satisfied that it would be of use to the Commission – and would not unduly prejudice the Applicant – to have the assistance of the Respondent’s legal representative. Noting that representation was not opposed. I was also satisfied that the presence of the Respondent’s Representative would also enable the matter to be dealt with more efficiently. Accordingly, I allowed Mr Patrick Lawler of Ashurst as a representative for the Respondent.

1. There is no dispute between the parties, and I am satisfied on the evidence, that I have jurisdiction to arbitrate the Dispute.

A Brief Outline of the Dispute

1. The genesis of the dispute arose on or about October 2021 during a recruitment process when the Respondent informed the Union’s site representatives that they had shortlisted a number of employees for interview and gave the timetable for those interviews. The Union representatives understood that the Agreement under Clause 8.2 gave them greater involvement in the selection and hiring of employees and indicated to the Respondent that this matter was in dispute.

1. The Respondent replied to the Unions assertions on 29 December 2021, indicating that clause 8.2 limited the Unions site representatives to the preliminary steps preceding the interview and the interview and no more of the hiring process.

The Question for Determination

1. The dispute was then filed with the Commission and following an unsuccessful attempt at resolving the dispute in conference the parties wish for the Commission to determine the following question to resolve the dispute, which is:

“Properly construed, does clause 8.2 require the involvement of up to two workplace representatives in any recruitment and selection steps prior to interview?”

Relevant Decisions

1. The Full Court of the Federal Court of Australia stated the principles applicable to the interpretation of an enterprise agreements in James Cook University v Ridd: 4

“(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind”. The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose”.

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to “... the entire document of which it is a part, or to other documents with which there is an association”.

(iv) Context may include “... ideas that gave rise to an expression in a document from which it has been taken”.

(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...”

(vi) A generous construction is preferred over a strictly literal approach, but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties”.

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.” [references omitted]

1. The Full Bench of the Commission articulated the principles in AMWU v Berri Pty Ltd these are well known and therefore I won’t list the principles (para 114, [2017] FWCFB 3005)

1. The Relevant Agreement Clause 8.2 states

“Recruitment and selection decisions for any Employee role will be based on merit and undertaken with the involvement of up to two Workplace Representatives from the relevant workgroup during the interview process. The final decision rests with the Company. If unsuccessful, Employee applicants will be provided specific and genuine feedback”

1. The point in contention is the scope of the term ‘Interview Process’. In short, the Applicant contests that the term covers workplace representatives’ involvement in not just the interview itself, but the series of steps and actions before and inclusive of an interview but stops at the point where the decision is made to hire a person.

Applicant’s submissions and evidence

1. The Applicant contends that the clause covers the process of recruitment for Agreement covered employees at the site and that it makes specific mention of merit and involvement of workplace representatives. The term ‘workplace representatives’ is defined in the agreement and will vary according to the type of role. The Company has the final decision in selection.

1. The Applicant referred to the Macquarie Dictionary definition of ‘Process’ as:

“1.A systematic series of actions directed to some end 2. A continuous action, operation, or series of changes take place in a definite manner”

1. The Applicant asserts that the intent of the clause gives the workplace representatives involvement in the ‘series of steps and actions that include an interview but stops short of the decision’.

1. The Applicant contests that the use of the word ‘process’ in addition to the word interview effectively expands the involvement of the workplace representatives in all the steps leading up to but not including the decision. The use of the word process modifies the intention of the clause as if the intent were for the workplace representatives just to be involved in the interview then the word ‘process’ does not have to be used.

1. A further contention is that the use of the word merit and the use of two workplace representatives is to ensure transparency and fairness and thus a meritorious decision on appointments. The whole clause is to promote fairness and merit-based decisions and thus interview process should be read broadly to include all steps up to the final decision which is clearly delineated as the role of management.

1. The Applicant also refers to a company policy document titled “Talent Acquisition Policy”. Which in clause 1 states

This document is subject to and should be read in conjunction with the Fair Work Act and any applicable industrial instrument within the context of talent acquisition and onboarding.

1. The document goes on further at clause 7.4, to define the term “interview process” as the following:

“7.4 Interview process

The interview process includes:
Sourcing;
Screening;
Shortlisting;
Interview and Selection;
Reference Checking;
Medical; and
Offer of Employment.”

1. The clause then expands and defines each of the steps of the “interview process”.

1. The Applicant asserts that the Company’s Talent and Acquisition Policy is a strong indication of the parties’ objective understanding of the term interview process. That it includes a series of steps that concludes with the appointment of a successful candidate. The document clearly provides guidance to both parties regarding their obligations under the Agreement.

1. Further, Clause 7.4 further shows that the “interview process” is seen by the parties as a series of steps taken to provide a person with an offer of employment and interview is not just an individual action.

1. Evidence was given that post agreement in August 2021 the two workplace representatives were involved in the broad process - the compilation of the selection criteria, screening, and interviews. This was contrasted in December 2021 the workplace representatives were only limited to involvement in the interview process.

Respondent’s submissions

1. The Respondent asserts that the broad and expansive construction of the term interview process is contrary to the plain and ordinary meaning. The use of the term process when applied following the word interview does not act to give the word further meaning to include processes that precede interviewing and effectively expand the meaning.

2. They contend that the words are plain and unambiguous. The words “interview process” mean, in the context of clause 8.2, the process of interviewing candidates as part of a recruitment and selection process. If that was the intention of the drafters of the Agreement then they would have stated for example - the process of shortlisting, screening, setting selection criteria or the recruitment steps including interviewing. The Respondent further contends that the use of the word “process” simply reflects that there may be a process of interviewing prospective candidates once a shortlisting process has occurred. That construction reflects the reality of how a recruitment process would occur, and that the framers of the document used the word “process” because they were of a “practical bent of mind”.[1].

1. The Respondent contends that the construction the Applicant suggests requires rewriting the clause to suit its objectives (substituting the word “interview” for “recruitment”) or reading into the clause words that do not appear (i.e. the words “up to and including”).

1. The assertion of the Applicant that the broad definition of the words ‘interview process’ aligns with the objective of merit does not further the Applicants contention say the Respondent. The process of merit appointments is implicit in the process and requires management to comply. Part of that is achieved via the involvement of the workplace representatives which is not a common requirement in workplace agreements.

1. The Respondent asserts that current Human Resources practices includes outsourcing of some parts of the recruitment process such as sourcing and screening thus it would be impractical to include Workplace Representatives in these steps of recruitment. The involvement of the workplace representatives in the interview step of the recruitment process is a practical method of ensuring that there is a robust merit-based recruitment process.

1. The Respondent contends that where clause 8.2 is clear and unambiguous, the evidence of surrounding circumstances cannot be admitted contradicting the plain language of the agreement. (Berri at [114].)

1. The Respondent states that the “objective backgrounds facts” outlined by the Applicant from [29 onward] are, not objective, and do not assist to determine whether an ambiguity exists. The Applicant seeks to rely on such matters to aid interpretation of the Agreement in circumstances where the clause has a plain and ordinary meaning. The Respondent states the evidence of Mr Perry and Mr Wieden doesn’t provide assistance to the Commission.

1. The Respondent proposes in the alternate if the Commission determines that clause 8.2 is ambiguous, then the admissible extrinsic evidence aids the respondent’s interpretation of clause. They point to the change in wording of the clause from the past Agreement to the current Agreement:

Clause 8.2 in the predecessor enterprise agreement provided:

8.2 Recruitment and Selection

Recruitment and selection decisions for new Production or Engineering Employees will be based on merit and undertaken with the involvement of up to two Employees from the relevant workgroup. The final decision rests with Management.

This is in contrast the current Agreement which states

8.2 Recruitment and Selection

Recruitment and selection decisions for new Production or Engineering Employees any Employee role will be based on merit and undertaken with the involvement of up to two Employees Workplace Representatives from the relevant workgroup during the interview process. The final decision rests with Management the Company. If unsuccessful, Employee applicants will be provided specific and genuine feedback.

1. The predecessor agreement provided for recruitment and selection decisions to be made “with the involvement of up to two Employees from the relevant workgroup”. On its face the clause did not confine the involvement to the interview process. There is a clear change in the wording and involvement of the workplace representatives in the current Agreement where the words ‘interview process’ is made explicitly.

1. The following exchange during cross examination of Mr Weiden:

“You didn’t previously have arbitration, did you? ‑No, we didn’t previously have it.

And guaranteeing minimum numbers of full-time employees? ‑Yes.

That’s a pretty significant win, isn’t it? ‑It’s what we chased for many years, yes.

So, given the significance of the agreement, no doubt, as you participated in bargaining meetings and the like, you gave very careful consideration to the wording that was being used in various clauses in the agreement? ‑Yes. We changed a lot of the agreement, if that’s - - -

Yes, and when you did so, you carefully considered the language that was going in? ‑Yes.

To ensure that it reflected the intention? ‑Yes.

That’s particularly so where the company had suggested changes to existing clauses; do you accept that? ‑Where the company had?

Where changes were being made to an existing clause in the enterprise agreement, for example 8.2, when that was changed, you would have given careful consideration to the changes to that clause? ‑Yes.

To ensure that they were accurate and reflect what was intended? ‑Yes, I guess so, yes.

When that happened, you would have carefully considered the language that was being used? ‑Yes.”

1. During the negotiations for the current enterprise agreement there were concessions given on both sides and as well benefits provided in order that the new agreement be agreed to by both parties and supported by the workforce. As articulated in the above exchange, this included the Union winning an agreement to staffing levels and that arbitration be included in the dispute’s resolution process. On the other side of the equation the respondent points out that new words were included and in the case of clause 8.2 the involvement of the union was spelled out where it was not before.

Therefore, clause 8.2 was amended as per the below:

8.2 Recruitment and Selection

Recruitment and selection decisions for new Production or Engineering Employees any Employee role will be based on merit and undertaken with the involvement of up to two Employees Workplace Representatives from the relevant workgroup during the interview process. The final decision rests with Management the Company. If unsuccessful, Employee applicants will be provided specific and genuine feedback.

1. The predecessor agreement provided for recruitment and selection decisions to be made “with the involvement of up to two Employees from the relevant workgroup”. This then has no constraint as to which part of the process the workplace representatives could be involved. The only limitation, as in the updated clause in the recent agreement, was that management would make the final decision on recruitment. This changed with the current Agreement which provides that involvement of the “Workplace Representatives”, is expressly confined to the “interview process”.

Consideration

1. The principles of construction of enterprise agreements are well known and are not in dispute.[2] Firstly the approach requires one to commence at the ordinary meaning of the words, read as a whole and in context.[3] Secondly, if the agreement has a plain meaning, evidence of surrounding circumstances will not be admitted to contradict the plain language.[4]

1. On the plain and ordinary meaning, the use of the word process in combination with interview does not give it a broader interpretation. It makes it clear that the interview may be a process – the interview may not be a single event or meeting but a series of interviews, it could be the interview process is a group interview followed by one-on-one interviews. I do not have to look further than the plain and ordinary meaning of the words.

1. If the writers of the new agreement had wanted or agreed for the workplace representatives to be involved in all steps of recruitment bar the appointment decision, then it would have been spelt out; but the use of the words ‘interview process’ on the plain meaning is just that; nothing more, no preceding steps, just interview and its process. I do not find that interview process has wider meaning or involves the steps leading up to interviewing of candidates that is on the plain and ordinary meaning.

1. If I am wrong on this point, then consideration of context identifies does not assist the Applicant. During the agreement negotiations there were concession given by the organisation and benefits won in return. The Applicant it seems won a few concessions (headcount number and Arbitration) and it would seem that the Respondent achieved a narrowing of the involvement of the workplace representatives in the recruitment process.

1. The change in the expression of the clause indicates that during the negotiations there was a proposal by the company to seemingly limit or clarify the role of the Applicant in the recruitment process, that is acknowledge the involvement of workplace representatives and where in the overall recruitment processes they would be involved. This narrowing of role the Applicant says was not made out during bargaining discussions or in communication prior to the vote. The Applicant states that it was explained as no change to the past and the expression ‘process’ was to intended to cover all of the recruitment steps apart from appointment decisions. It may have been the case that while the Applicant secured some significant concessions from the employer, agreement to headcount and agreement to have arbitration in the Agreement, that the Applicant may not have focused so much attention on the wording of the recruitment clause.

1. Either way the Respondent is now enforcing the clause as it is written plainly. It may be that for employees unfamiliar with recruitment that they may have believed that interview process is more than that, however as I have explained in my reasoning above the words are plain and ordinary, the word interview inclusive of the word process is clear, that it does not involve the preceding steps of sourcing and selection of candidates. These are separate and different activities. The Applicant wants to ensure robustness and rigour in the process and that appointments are on merit. The Interview is an obvious key step in the recruitment of employees to have a face to face to test the candidate with questions and see how they respond

1. In considering all the evidence and submissions on this question I conclude that during the negotiations the words adopted interview process were specifically proposed and adopted and ultimately voted upon. There is no confusion that ‘interview’ even followed with the word ‘process’ does not include other steps in the recruitment process. The answer to the question is No.

DEPUTY PRESIDENT LAKE

[1] Kucks v CSR Ltd (1996) 66 IR 182 at 184

[2] AMWU v Berri Pty Limited [2017] FWCFB 3005 at [114] (Berri).

[3] City of Wanneroo v Holmes (1989) 30 IR 362 at 378

[4] Berri at [114]

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