CPSU, the Community and Public Sector Union v Victorian WorkCover Authority
[2009] FWA 1633
•23 DECEMBER 2009
[2009] FWA 1633 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
v
Victorian WorkCover Authority
(C2009/10266)
VICTORIAN WORKCOVER AUTHORITY CERTIFIED AGREEMENT 2005-2008
(ODN AG2006/2767) [AG846833]
Insurance industry | |
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 23 DECEMBER 2009 |
Redundancy and Redeployment - Failure of Individual To Gain Selection – Priority under the agreement, fairness of decisions, selection committee decisions – Re AEU
[1] On 18 August 2009 the Community and Public Sector Union (CPSU) lodged an application with Fair Work Australia under the dispute settling procedure of the Victorian Workcover Authority Agreement 2005-2008 (‘the Agreement’). The application related to the decision of WorkSafe to make Mr.Grant Odgers redundant, and to Mr.Odgers’ failure to gain selection for a number of jobs.
[2] The matter was conciliated and no agreement was reached. The CPSU sought to have the matter determined in arbitration under clause 67 Dispute resolution procedure. It was not in issue that the procedure provides for arbitration and that this step in the procedure had been reached. I reject the submission of WorkSafe 1 that the alleged dispute has not been clearly identified in writing. The written submissions of the CPSU identify the dispute.
[3] Written submissions and witness statements were filed, and the matter was heard on 21-22 September 2009. I have had regard to the written submissions and witness evidence.
[4] The CPSU sought an order to the effect that WorkSafe place Mr.Odgers in position number 30225, Program Development Officer. The CPSU then accepted that Re AEU 2prevents Fair Work Australia from issuing such an order and withdrew its submission. It then sought leave to put a supplementary submission with alternative orders. These orders were opposed by WorkSafe on jurisdictional, procedural, and merit grounds.
[5] The CPSU relied for its position on clause 55 of the Agreement which provides:
‘55 Redeployment
55.1 Where a decision is made by WorkSafe Victoria which will result in the change to the way work is carried out or work is no longer being performed, and as a result, an employee’s position becomes excess to requirements, consultation with the employee will occur to endeavour to redeploy the employee to another position if a suitable vacancy exists.
55.2 In the filling of all vacant and new positions, Worksafe Victoria will give priority to suitably qualified employees whose positions have been made redundant.
55.3 If the employee is unsuccessful in being redeployed or appointed to a suitable position, they will be eligible for a retrenchment service payment in accordance with the Victorian Government policy for the calculation of this payment.
55.4 ‘Suitable position’ means a job that is classified at the same generic level of the employee’s substantive position, and where the employee will be able to satisfactorily carry out the duties of that position with a reasonable amount of training. However, an employee may request to be considered for a position at a lesser salary.’
…
[6] Clause 12.1 of the Agreement sets out requirements regarding recruitment and selection:
‘WorkSafe Victoria is committed to a recruitment and selection process that:
(a) provides development and career opportunities to employees;
(b) will be fair, transparent and communicated openly to all employees;
(c) has a clear definition of requirements for specific roles;
(d) can clearly and accurately assess the required skills of applicants; and
(e) openly supports equal opportunity principles.’
[7] Clauses 12.2 and 12.3 deal with other relevant issues regarding filling positions and advertising. Clauses 9 and 64 deal with discrimination and authorised union representatives.
[8] The objectives of the Agreement include the following:
‘8.1 The aim of this Agreement is to reinforce and build upon the relationship between WorkSafe Victoria and its employees. As a result of this, the objective of this Agreement is to promote an efficient and productive workplace which is characterised by:
….
(g) Fairness and equality of outcomes for all employees’
[9] The Redeployment and Retrenchment policy 3 provides in clause 3.1.4 that:
‘When a position becomes redundant, every effort will be made to provide the position employee with suitable alternate employment. This is redeployment to a position:
• at the same level, where possible;
• which matches most appropriately the employee’s skills, experience, knowledge and abilities; or
• which the employee could be able to perform satisfactorily with a reasonable amount of training.’
[10] It also contains other obligations in clause 3 which are relevant.
[11] The following witnesses were called by the CPSU:
- Mr.G.Odgers
- Mr.B.Stavreski
- Mr.T.Caruso
- Ms.A.Summits
- Ms.A.Payne
- Mr.M.Donohoe
- Mr.A.Cook
[12] The following witnesses were called by WorkSafe:
- Ms.B.Millen
- Mr.J.Howard
- Ms.K.Canham
- Mr.C.O’Mallon
- Ms.V.Jukes
- Mr.E.Windholz
CPSU Evidence
[13] Mr.Odgers gave evidence that the ‘person specification’ for position number 30225 had eleven competencies listed with their required levels, while the PD2 classification document listed only eight primary competencies. He said that the selection report makes specific comment on his responses to five of the eight questions, and that the panel’s comments did not accurately reflect his experience, the preparation he had done, or the responses that he provided. He detailed a number of alleged problems with the selection report, including that he had provided an example of a complex project he had planned and implemented, namely his delivery of the ‘Psychosocial Factors in MSD project’, his response to a question about his operational occupational health and safety experience, and that the operational project was one of many such projects he reviewed as part of his work to place Worksafe project information into the Worksafe evaluation database. He said that the selection report was inaccurate in various respects 4. He also said that the panel members genuinely determined that he did not have the skills and competence for the position, and in relation to Mr.O’Mallon’s comments on his union badge said:
‘And you're not suggesting are you in your view that Mr O'Mallon did not give you the job because you wore a CPSU badge?---No, I'm not suggesting that at all.’ 5
[14] Mr.Odgers said that his prepared summary statements and related experience addressing the eight primary competencies were as follows:-
1. In relation to building relationships, Mr.Odgers said that he had systematically built relationships, and accountabilities have included implement praxis research methodology with investigate Work Groups in the Australian Taxation Office, as a workplace union delegate and delivering ongoing work related hospital admission information and historical data sets.
2. In relation to contributing expertise, Mr.Odgers referred to the development of the Evaluation Database helpfile, providing advice on evaluation survey questions, radiation safety, and stress policies. Accountabilities including assisting WorkSafe project officers, stress policies, and delivering safety standards and supporting documentation.
3. In relation to driving improvement initiatives Mr.Odgers referred to improved OHS interventions, evaluation and analysis of outcomes from workplace inspections, and WorkSafe’s Evaluation Database. Accountabilities included monitoring and researching developments in other jurisdictions, evaluation of interventions, promoting use of the Evaluation Database.
4. In relation to facilitates outcomes, Mr.Odgers referred to providing OHS representatives with inspection reports from walk-through inspections, aligning external project objectives with those of WorksSafe in contractor relationships. Accountabilities included biological monitoring, footwear manufacturing advice, options for 12 hour shifts at Telstra, psychosocial risk factors, and the Evaluation Database.
5. In relation to stakeholder support and service, Mr.Odgers referred to excellent stakeholder support, and accountabilities included advice and information.
6. In relation to tactical and analytic thinking, Mr.Odgers referred to the Evaluation Database, and accountabilities included a strategy unit, country of birth analysis, and advice to the Strategy Development Manager.
7. In relation to utilising WorkSafe and industry awareness, Mr.Odgers referred to resolving union member grievances, and accountabilities included liason over the Hazard audit project, activities as a union delegate, and the Evaluation Database.
8. In relation to working in a team, Mr.Odgers referred to the joint ACTU/VTHC Health and Safety Unit and other matters, while accountabilities including quarterly analysis of hospital admissions data, the monthly CE report, and providing documents 6.
[15] Mr.Odgers gave detailed evidence about the interview for the bullying and stress Program Development Officer, interview feedback and selection report, and the welfare project position. Mr.Odgers also provided detailed documentation supporting his application.
[16] In relation to the interview for position 30225, Mr.Odgers said that the interview report did not ‘accurately reflect my experience, the preparation I had done, or the responses that I provided’. He said that he was asked to provide an example of a complex project that he had planned and implemented, and that he used the example of his delivery of the Psychosocial Factors in MSD project, the specific example listed in his preparation notes in the ‘facilitates outcomes’ section. He contested the interview report comment that this was a project planned and implemented by another party, and other matters.
[17] He did not specifically contradict the interview report comment that ‘his role did not involve operational health and safety experience’. Rather, he comments that this is not an accountability or primary competency, nor listed in the person specification, and said he provided an example concerning the Australian Taxation Office. He said he was responsible for the implementation of an additional administrative control for a health and safety risk, and could demonstrate operational OHS experience, and that the panel did not comment as to any operational training that might be needed.
[18] He said that the interview report stated in relation to analytic ability that Mr.Odgers had evaluated a project plan, but in fact he had reviewed the entire project and other matters.
[19] Mr.Odgers said that he had dealt with senior management contrary to the selection report comment on engaging industry, and that he had given examples of working with teams. He concludes that the selection report was not a ‘fair or reasonable judgement of my competence or skills, given the points I have made in this statement’ 7.
[20] Mr.Stavreski gave evidence 8 that Mr.Odgers had worked in his team, and that he considered that Mr.Odgers would meet the competencies for the Program Development Officer position. He considered Mr.Odgers to be a ‘competent and skilful employee, particularly in the OHS field’. He disagreed with the summary given by the panel chair of his comments in various respects. However, he conceded that Mr.Odgers was not involved in research so much as reporting other people’s research, and did not have a project management or project implementation type role9. Nor was he a project owner in relation to a project mentioned. The extent of his building relationships was limited perhaps to contacting people in Ireland about developments10.
[21] Mr.Caruso gave evidence 11 that Mr.Odgers assisted him with establishing program objectives and deciding on specific measures that would demonstrate that the stated project objectives were met, and he and his team interacted with Mr.Odgers in 2004-2007. He considered that Mr.Odgers had ‘good analytical skills’ and gave examples including the stress program in 2004-2005, and in 2005/2006 a manual handling injury reduction project in the health sector. He said he had read the person specifications, generic position profile and the panel report for position number 30225 and considered that Mr.Odgers ‘would have the ability to fulfil the key competencies for position number 30225’. He agreed that he had interviewed Mr.Odgers for another project officer position and had recommended that he was not suitable for the position, and was in fact fourth out of the four interviewed, and did not have an appropriate level of skills in relation to project management12.
[22] Ms.Summits gave evidence 13 about the selection process for the PD2 position in SP&S Division.
[23] Ms.Payne gave evidence 14 about the role of position 30225, a position which she had direct input into the creation of. She also gave evidence about her selection for the PDF3 role as Senior Project Officer for Stress Prevention on 17 October 2007, and that when selected she had no specialist technical knowledge of stress prevention.
[24] Mr.Donohoe gave evidence 15 which corrected WorkSafe evidence that the PD2 role is in the top band for Agreement covered employees. In fact it is at the bottom of band 5 in the six band award structure. He also gave evidence about the PD2 Welfare Project Office position. He said that the vacancy in SP&S Division was not covered by the agreement on expressions of interest, open only to SP&S employees and should have been advertised and filled in line with the standard recruitment processes.
[25] Mr.Cook gave evidence 16 that he was Mr.Odgers’ manager from 2007 to early 2008, and found him to be ‘insightful and knowledgeable’. He was of the view that Mr.Odgers met the competencies for the PD2 position, namely facilitating outcomes, driving improvement initiatives, tactical and analytical thinking, utilising VWA and industry awareness, building relationships, stakeholder support and service, working in a team, and contributing expertise. He was unable to comment on three criteria as there was no indication of what was desired to demonstrate performance in each particular level within these competencies. In support of this view he cited Mr.Odgers’ work on the development and administration of hazard audit program, in support of Strategy 2012, and his willingness to advise the team based on his extensive knowledge of practices in other jurisdictions. In cross examination, again, much of Mr.Odgers’ activity involved research such as researching developments in other jurisdictions, for others who ‘might use it in an operational sense’17.
WorkSafe Evidence
[26] Mr.O’Mallon was the Operational Strategy Manager, Strategic Programs and Support Division, and was responsible for recruiting for a program development officer role within the Bullying and Stress Prevention Team (position 30225). He said that this was a PD2 role, which was a relatively senior role, within band 5 for Agreement covered employees. He said that because Mr.Odgers was a redeployee WorkSafe did not arrange or consider any other applicants for position 30225 before interviewing Mr.Odgers for the position. The panel who interviewed him consisted of himself, Victoria Jukes (Human Resources), and Kathleen Canham (Group Leader, WorkSafe Bullying Prevention Unit).
[27] Mr.O’Mallon gave evidence that he discussed the position with Mr.Odgers, that he prepared for the interview with Mr.Odgers, that he conducted an interview with Mr.Odgers along with the other members of the panel, and that in his view Mr.Odgers ‘did not demonstrate sufficient capability to perform the role. His answers to questions did not show that he understood the role or that he could perform the specific accountabilities.’ All panel members agreed that Mr.Odgers was not suitable for the role and could not be recommended 18. He said that he did not take Mr.Odgers’ union membership into account in completing his notes for the interview or the rankings he applied to each of the questions answered by Mr.Odgers19.
[28] Mr.O’Mallon maintained his evidence during cross-examination, although it does appear that there was some discrepancy between whether or not OHS knowledge was essential or desirable 20, and other matters. The panel appears to have treated it as essential when it should only have been desirable.
[29] Mr.O’Mallon also provided the handwritten notes he prepared from the interview 21. Those handwritten notes record that in relation to project management, Mr.Odgers referred to a screen based project, and sprains and strains and their psychosocial impacts, and other matters. The notes record Mr.Odgers as saying that he took a ‘draft’ and changed it. This is possibly consistent with the conclusion in the selection committee report under the heading ‘project management’ that Mr.Odgers gave an example of a project ‘planned and implemented by another party’. In relation to operational OH&S experience, the notes are consistent with the selection panel comments that Mr.Odgers said that his role was not operational, and referred to the Tax Office project in 1994. In relation to engaging industry, the notes record that Mr.Odgers lectures in university and other matters. In relation to working with stakeholders, the notes record Mr.Odgers as referring to the Telstra shiftwork matter. In relation to analytical ability, the notes record Mr.Odgers as saying that he working with WISF fund and other matters. In relation to cultural fit, the notes record Mr.Odgers as stating that he worked with various teams.
[30] Ms.Canham gave evidence that she was a member of the interview panel for position 30225. She said that the panel concluded that Mr.Odgers ‘did not meet the competency on the basis of the aggregate scores on the eight competence measures’. She said ‘while Mr.Odgers spoke peripherally about working in a team, he was unable to convincingly explain about the best way to do this and did not appear to have had any personal involvement in team work. He also had difficulty articulating what he thought project work involved and did not speak about how to develop, consult with key personnel, implement and review a project’. She said that Mr.Odgers ‘did not demonstrate that he understood what the role involved and how the role was currently performed’, and that ‘Mr.Odgers did not have the core experience or competencies to meet the requirements of the Project Development Officer role’. She finally said that Mr.Odgers’ union activities and badge was not a factor in her decision making about Mr.Odgers’ suitability for the position. 22 She also gave evidence that Mr.Odgers had conceded during the interview that his current role was not operational regarding OHS, and that it would be difficult to meet the level of competency required23.
[31] Ms.Jukes was also a member of the interview panel, and gave evidence that Mr.Odgers ‘was not able to demonstrate his ability to meet the majority of essential skills, knowledge or experience required to satisfy the responsibilities and accountabilities required for the Project Development Officer position.’ She made other comments about matters that were lacking in Mr.Odgers’ demonstrated skills including regarding project management, occupational health and safety. She said that Mr.O’Mallon told her after she asked that training Mr.Odgers ‘would take too long and would significantly impede the progression of the project’. She said that Mr.Odgers’ union badge and membership did not influence her decision, or the panel’s decision 24. She also maintained her evidence under cross examination, although with a number of the same issues arising, including whether or not OHS knowledge was desirable or essential.
[32] The ‘Personal Specification’ and ‘Role Description’ for position 30225 25 set out requirements which were to be addressed in selecting a successful candidate for the position. The selection report26 records the panel that interviewed Mr.Odgers as recommending that the appointment of Grant Odgers not be approved. The report states that Mr.Odgers was assessed against ‘the selection criteria’, namely the ‘Primary Responsibilities and Accountabilities’ set out in the ‘Position Profile’, referred to by Mr.Odgers as the ‘Role Description’.
[33] The Program Development 2 statement 27 provides a generic outline of the content of a Program Development 2 officer job. It lists ‘primary competencies, these being building relationships, contributing expertise, driving improvement initiatives, facilitates outcomes, stakeholder support and service, tactical and analytical thinking, utilising WorkSafe and Industry awareness, and working in a team. It also details more general issues concerning the job, and accountabilities, which are similar but not identical to the primary competencies. The job description for the Operational Strategy Manager PD2 job28 lists primary competencies which include development of project scopes and plans, delivering components of projects and programs, work with stakeholder groups, research and analysis, monitoring and coordinating progress and plan implementation, make recommendations, development of policies, procedures and support tools, key relationships, competencies and behaviours, skills, education levels and experience. Again these are similar but not identical to the earlier document. Mr.Odgers was unable to point to any substantial difference between the general statement (A3), and the personal specifications for the job (A4)29, and they clearly overlap to a large degree.
[34] The report recorded an assessment by the panel of Mr.Odgers’ responses to eight questions with an overall assessment of ‘below standard’. The panel made findings in relation to Mr.Odgers’ application the headings of motivational fit, project management, operational occupational health and safety, engaging industry, working with stakeholders, analytical ability, working in a team, role knowledge.
[35] Mr.Howard gave evidence 30 that he gave Mr.Odgers priority as a redeployee for a PD2 Project Officer role within the Manufacturing and Logistics Division. He said that there were no material differences between the generic and specific descriptions for the role and the Project Officer position within the Manufacturing and Logistics Division. After interviewing Mr.Odgers he said that the interview team of Ms.Kilduff, Ms.Plunkett and himself were unanimous that Mr.Odgers was not suitable for the role and could not perform the core competencies of the role:
‘In my opinion, Mr.Odgers did not display any of the core competencies required for a PD2 role. Mr.Odgers failed to articulate a suitable response to any of the questions asked. He was not able to demonstrate any operational experience in the area of the occupational health and safety, the ability to engage with stakeholders or engage in lateral thinking in order to develop a project. Further, Mr.Odgers was not able to articulate what he would have done if faced with the scenarios presented to him (these scenarios encompassing typical work within the Project Officer role). Therefore Mr.Odgers did not show that he had the capacity to perform this role.’
[36] Mr.Windholz gave evidence 31 that a position of PD2 in the Welfare Project Team was advertised by email to employees within the SP&S Division requesting expressions of interest, consistent with a process following a restructure which had been discussed with the CPSU, and to the best of his knowledge no PD2s lodged an expression of interest. The position was filled by interviewing from the pool of applicants for the Program Development Officer position.
[37] Ms.Millen gave evidence 32 that she was assigned the role of case manager for a redeployee, Mr.Odgers. She said that consistent with the redeployment policy she notified Mr.Odgers of seven PD2/TSME3 vacant positions between 17 June 2009 and 7 August 2009, generally providing Mr.Odgers with 48 hours to respond as to whether he was interested in the positions. Mr.Odgers decided to apply for only one of these positions, a TSME3 role in the Social Research Unit. She said that she was unaware of the process by which ‘expressions of interest’ were used to fill vacant positions within the SP&S Division. These positions were she understood not ‘vacant but available to Project Officers within the SP&S Division only as a result of the agreed restructure.’
Conclusion
[38] The CPSU made a number of criticisms of WorkSafe’s conduct in their final submissions 33, firstly that there were two factors taken into account by WorkSafe in their decision that Mr.Odgers was not suitable for position 30225, namely Mr.Odgers’s union membership, and the fact that the selection panel treated operational OHS experience as essential when the position specification listed practical hands on OHS experience as desirable not essential. This gave excessive weight to OHS experience. There was also said to be a problem with a misjudgement of the amount of training needed to make Mr.Odgers suitable for position 30225, and other matters.
[39] I have considered all the evidence and submissions.
[40] Firstly, I do not consider that Mr.Odgers’ union membership, or the fact that he wore a union badge to the interview for position 30225, influenced the panel’s decision that Mr.Odgers not be selected for the position. I note that this is consistent with Mr.Odgers’ own evidence about Mr.O’Mallon. I found the evidence given by Mr.O’Mallon, Ms.Canham and Ms.Jukes to be persuasive and I accept it. The deciding issues were those stated in the interview report and their evidence, not union membership.
[41] Second, I am unable to find that Mr.Odgers was treated other than in accordance with the Agreement, including clause 12, clause 55.2 and objective 8.1(g), during the process of interview and selection for position 30225 and other positions.
[42] The selection report for position 30225 made findings that Mr.Odgers was ‘below standard’ in five of the eight listed competencies, barely competent in two, and competent in only one of the eight. The below standard assessments were with respect to motivational fit, project management, operational OHS, analytical ability, and working in a team. The overall assessment was that Mr.Odgers was below standard:
‘7. Non-Recommended Applicants (unsuitable)
Grant was interviewed over approximately one hour and allowed time to assess and respond to each question. He was advised of the role’s fit within the division and that it was a permanent role. He was advised that his was a standard, behavioural based interview and that he would be asked to respond by identifying a situation, his actions and the outcome. He was asked with formatted questions and a number of others to draw out more information based on his response, or to clarify.
His responses to those eight questions were assessed by the panel. The assessment options available being ‘well below standard’, ‘below standard’, ‘competent’, ‘very good’ and ‘exceptional’. Grant’s overall assessment by the panel was averaged as ‘below standard’ for this position at this interview.
Question | Subject | Member 1 | Member 2 | Member 3 |
1 | Motivational fit | Below standard | Below standard | Below standard |
2 | Project management | Below standard | Below standard | Below standard |
3 | Operational OHS | Below standard | Below standard | Below standard > |
4 | Engaging industry | < Competent | < Competent | < Competent |
5 | Working with stakeholders | Competent | Competent | Competent |
6 | Analytical ability | Below standard | < Competent | Below standard |
7 | Working in a team | Below standard | Below standard | Below standard |
8 | Role knowledge | < Competent | < Competent | < Competent |
A rating marked ‘< Competent’ indicates the applicant barely demonstrated competence. A rating marked ‘Below standard >’ indicates the applicant demonstrated a competence above ‘Below standard’ but not enough to clearly be marked ‘Competent’.’
[43] On motivational fit, I am unable to find that the selection committee was in error in finding that Mr.Odgers was ‘below standard’.
[44] On project management Mr.Odgers gave evidence that referred to a number of projects, in particular what was described as a ‘2002, Psychosocial Factors in MSD’ project 34. Mr.Odgers claimed that this required a strong understanding of and experience in project management, and raised similar aspects of work to bullying and stress. He said that he took significant responsibility and accountability for the Planning, Execution and Close-Out phases of the project. He said that he personally negotiated with the consultant regarding the contract, objectives, milestones and detailed scoping. He said that he assisted in the implementation of the project by providing feedback and reference documentation to the consultant’s assistant, who undertook the literature review part of the project, and was personally involved in fact finding discussions, where he kept notes and regularly discussed with the consultant. He managed delivery of the project by determining when objectives and milestones had been met, and recommending payment. It provided WorkSafe with a solid model for understanding the effects that psychosocial factors can have on musculskeletal disorders35.
[45] Mr.O’Mallon’s recorded version of what Mr.Odgers said is somewhat different. In his notes of the interview which he tendered as part of his witness statement Mr.O’Mallon records Mr.Odgers as telling the selection committee 36 that:
‘Could talk about screen based project. That was more my own. Something a bit more recent. I had to change the way something was planned. Sprains and strains and their psychosocial impacts. Draft proposal from external member of advisory group. $50,000. Done on a nod and wink. Risk to organisation in governance perspective. I took draft and negotiated and liaised with consultant and manager and narrowed scope. Too airy fairy. Program with milestones payment around milestones. Difficult with manager. Good report. Presented to steering group and Board. The key issue was the governance issue and we resolved through use of our legal dept.’
[46] The handwritten notes of Messrs.Canham and Jukes are broadly consistent with those of Mr.O’Mallon.
[47] The selection committee report said:
Project Management: Grant was asked to provide an example of a complex project which he had planned and implemented. The example provided related to a project planned and implemented by another party in which his role involved identifying an anomaly in the plan and working to have it addressed by using the ‘legal department’. The panel identified that this did not demonstrate project management expertise or experience to the level required.
[48] There is some difference of emphasis between the three versions on the degree of Mr.Odgers’ role, with Mr.Odgers in his evidence stressing his role more than the report and the notes reveal. However, these are questions of degree and there is considerable commonality in the version of events. Even on Mr.Odgers’ own version of events another person played a large or larger role than he did in the project. In my view it is open to Mr.O’Mallon and the selection committee to reach the conclusion that they did, namely that Mr.Odgers’ role was somewhat indirect and the role of another party was greater. It was also a 2002 project, some time before the interview. Mr.Odgers also quite properly gave evidence before me that his role at WorkSafe was one of being a research assistant. I am unable to conclude that the selection committee was in error in reaching the conclusion that it did, that Mr.Odgers had not demonstrated sufficient project management experience.
[49] In relation to operational OHS, Mr.Odgers said that this was not listed in either the position description or generic PD2 document. He said that he gave the example of his work for the Australian Taxation Office. In his notes of the interview, Mr.O’Mallon said that Mr.Odgers said:
‘Because role is not operational H&S it’s a bit tricky. In the design of the Cheltenham Office in 1994 of Tax Office. ATO at forefront of H&S for public sector. Recently introduced PCs. Concerns around electro-magnetic radiation. ATO had expert paid guidance to shield the electrical distribution in building using new designed metals. Tests showed high radiation still. Trying to design for safety. Unable to eliminate source. Still leakage. Suggested that they should move people away from hazard.’
[50] The selection committee report was:
‘Operational OHS experience: Grant acknowledged that this was ‘a bit tricky’ because his role did not involve operational health and safety experience. He provided an example which did demonstrate a common sense approach but not a level of experience or expertise in workplace health and safety.’
[51] It is true that the formal documents did not specifically list this sort of experience, but it is in any event a reasonable question and request given the nature of the job. Mr.Odgers admitted that his role did not involve operational health and safety experience. I am unable to find an error in the conclusion reached by the selection committee.
[52] In relation to analytical ability, again Mr.Odgers referred to his expertise in terms of various projects and activities. He said that the panel report was wrong in that it said that he had evaluated a project plan while in fact he had reviewed the entire project, including the project plan, project report, and the contracted researcher’s own evaluation of the project. He referred to the Evaluation database.
[53] Mr.O’Mallon’s notes record Mr.Odgers as saying:
‘I have worked with WISF fund. They ran a project … with Bruce. It had been run and evaluated. Consider for evaluation database. Contains information for project officers to design better interventions. This one intervention lacked program logic. I read the thing carefully on project and objectives. Not well considered. I wanted improved operational outcomes. Did not want to mislead. My commentary was to learn. Came up with a decent set of words. Consulted with project manager. Bruce committed to chasing up consultant to get further information. I have there affected operational interventions. Post feed back evaluation result. No. I have had little operational experience.’
[54] The selection committee report provided:
‘Analytical ability: Grant was asked to provide the panel an example of when he utilised his analytical skills in order to identify an issue and drive significant improvements in an operational project environment. Grant acknowledged that he had ‘little operational project experience’. He provided an example in which he made contact with a project manager after an evaluation of a project plan in order to gain commitment from the project manager to ‘chase up’ a consultant for more information and to improve the quality. Grant did not articulate what, if any, improvement was initiated by his work. The panel did not consider this response as meeting the required level of analytical ability for the position.’
[55] In my view it is open to the committee to interpret the answers given by Mr.Odgers in the manner that they did. Mr.Odgers also acknowledged that he had little operational experience. This is consistent with other evidence. The Evaluation database is important but does not persuade me that the committee was wrong.
[56] Mr.O’Mallon’s interview notes summarise Mr.Odgers as saying:
‘CPSU at Telstra concerned about H.S. effects of shiftwork. Got 10-12 people, 8 workers, 4 managers and Director. Key milestones – Establishment issues (H&S) on 12 hr rosters – were there better rosters – best roster to meet business requirement – coordinated rostering with Sydney. Drew Dawson UNSA Sleep Unit. I facilitated meetings every week or fortnight over 20-3 months. Guided them to literature. Utlimately developed new rosters. Put to vote and reverted to old roster. However now all knowledgeable about why something may be good.’
[57] The selection committee report concluded that Mr.Odgers was ‘competent’ on this.
[58] In relation to engaging industry, Mr.Odgers said that his curriculum vitae showed that he had effectively engaged with stakeholders, although he appeared to concede that he may not have effectively conveyed this at the interview, stating ‘Demonstrated at interview or not …’. Mr.O’Mallon records Mr.Odgers as saying a number of things and records him as ‘competent’. The selection committee report deals with that issue as follows:
Engaging industry: Grant provided an example of lecturing in physics to 100 university students. He also provided another example of delivering a presentation to a VicHealth conference. The panel was comfortable with these responses as examples of presenting information to large groups however, would have likes(sic) a greater understanding of the post presentation interaction with the parties present and felt that the examples did not demonstrate contact with or consideration of a variety of stakeholders/sectors within the industry.
[59] In relation to working in a team, Mr.Odgers said that he gave the example in his working notes, which partly involved preparing a survey questionnaire, small group testing of the questionannire, refining and ultimately the distribution, collection and analysis of the questionnaire results. He worked with a team to do this.
[60] Mr.O’Mallon’s notes record Mr.Odgers as saying that:
‘Quick. I work with team of field officers to review project. I worked with a reference group of Inspectors. A better example was URCOT PACIS research. Getting a team together to research issues, discover and implement. Genuine multi-functional teams from all areas in Tax office. Projects done the same way. Teach, facilitate and write report for ATO Board. Telstra example was more leading a team. Working at joint H&S unit I was writing my own. I can work alone but I prefer working with teams, established collegiate manner and shared info. I like to provide feedback to others.’
[61] The selection committee report provided:
Working in a team: Grant provided two examples of where he had worked with other teams but not within them. He also provided an example of forming a team to research issues, discover and implement, but did not detail his role, how it was successful or the outcome.
[62] I am unable to find that the selection committee was in error. It was open to the committee to interpret the responses and material in the manner that it did. It is not necessarily sufficient to list projects, rather it may be necessary to actually explain further in sufficient detail what was involved that was relevant in order to convince a committee.
[63] In relation to other descriptors of the position not covered by these I am unable to find an error in the conclusion reached by the selection committee on the material before me. To the extent that the Recruitment and Redeployment Policy and other internal documents are a guide to fairness they were complied with. It is true that there was a conflict between whether or not certain occupational health and safety knowledge and experience was essential or desirable. If his application had been borderline it is conceivable that the difference between the two might have become crucial, but it was not a borderline issue.
[64] In addition there is some difference of terminology between what Mr.Odgers referred to as the ‘eight primary competencies’ and the competencies used in the selection committee report. However, the eight primary competencies referred to by Mr.Odgers are overall dealt with in the report. For example, ‘building relationships’ is reflected in various ways in the panel selection report including in engaging industry and working with stakeholders, ‘contributing expertise’ is dealt with in various ways, as is driving improvement initiatives and facilitates outcomes. These matters are inherent in project management, analytical ability and role knowledge. Overall the test I have to apply is that set out in the clauses of the Agreement, and those clauses have been complied with.
[65] Many gave evidence on Mr.Odgers’ behalf about his skills. However, they were not present during the interviews in question, did not hear Mr.Odgers’ replies, and therefore were not involved in assessing those replies and the supporting documentation. Messrs.Stavreski and Cook also to some degree conceded that Mr.Odgers was not engaged in operational project officer duties when they were involved with him in a professional capacity. This reinforces the conclusion reached by those who interviewed him that his skills and competencies were to some extent limited.
[66] It was put to Mr.Odgers that he was unable to give any recent experience with respect to most of the competencies listed for the job requirements of position 30225 or of a PD2 generally, and that it had never been his responsibility at Worksafe to perform such competencies. Mr.Odgers was quite open and honest in his answer that:
‘I’ve been a research officer in all of the time I’ve been at WorkSafe’. 37
[67] It is to Mr.Odgers’ credit that on this issue and the issue of the union badge he was able to honestly give evidence even when it did not assist his case. I might add that this is not always the case in proceedings of this nature. It appears to be the case that Mr.Odgers did not have the benefit of relevant operational experience to assist him in his applications, and no criticism should be made of him for that.
[68] It is fundamental to success in the process of selection that a candidate be able to explain his or her suitability for the job, which may well include an ability to demonstrate an understanding of what the job involves, and then further to explain why the candidate is able or best able to do it. Was Mr.Odgers able to do this?
[69] The interview panel evaluated the documents he presented and his oral presentations and concluded that he was not able to demonstrate actual competency, and it is almost common ground that Mr.Odgers’ experience was as a research officer, not as a project officer 38. Messrs. Mr.O’Mallon, and Ms.Canham were credible witnesses with a detailed knowledge of and experience in the project officer role. Ms.Jukes gave convincing evidence about the matters dealt with in her witness statement. I prefer their evidence to that of Mr.Odgers. Mr.Odgers was an honest but less convincing witness. He did not adequately explain what a project officer did, despite repeated questions39.
[70] Mr.Odgers made a number of criticisms of the selection committee report, but his evidence overall was ‘vague and unfocussed’, on the submissions of WorkSafe. Where his criticisms of the selection committee report and evidence of Mr.O’Mallon and others were specific I was unable to find that the committee was overall in error. There was some degree of discrepancy between various versions of what was said during the interview and the details of projects. I prefer the views of the panel members recorded in their evidence, and the handwritten notes of the interview prepared by Messrs.O’Mallon, Canham and Jukes, to contrary evidence given by Mr.Odgers.
[71] Other issues included the references in the job description statement (A4) to a role of ‘support’ and assistance rather than decision making and direction, and to assessments made about the degree of training needed. However, support and assistance also involves a degree of knowledge, skill and competence. The assessment made of the degree of training required to bring Mr.Odgers up to the required standard is the same or a similar process to that of assessing competence, and for the same reasons I am unable to find an error in the conclusions reached by the selection committee.
[72] In relation to referees reports, the selection committee said:
‘Reference checks: Grant’s referees were contacted by the panel Chair, providing an opportunity to obtain further information. Both referees were positive towards Grant in their reflections. They both indicated that Grant had a strong social conscience with a belief in the mission of WorkSafe. They both indicated that Grant was tenacious in taking on a task but needed oversight to make sure he did not go outside the brief in seeking perfection or failing to deliver within the stipulated time period.
During the course of the interview Grant identified these traits in himself. His integrity was also apparent. His dedication to the union movement and causes on behalf of workers was evident. However, it was noted that in considering the broader stakeholder audience which Grant may have to interact with, he made notably little reference to employers.
The panel also wishes to note that it was evident that Grant has spent time in preparing for the interview which was demonstrated by his prepared notes and clearly articulated responses.
Grant was advised of the interview outcome on the 7th day of July 2009 and was provided with detailed feedback. He was also offered the opportunity for some interview coaching if he desired it.’
[73] I am unable to find an error in the committee report.
[74] On the material before me three panels made a reasonable assessment that Mr.Odgers did not have the skills, competencies or experience to perform a project officer job. Overall I do not accept that the assessment made by the interview panels was other than ‘fair’ or consistent with clause 12 or the Agreement in any other respect.
[75] Thirdly, WorkSafe gave Mr.Odgers priority as required by clause 55, and complied with it in other respects. For example, Mr.Odgers was initially the only one interviewed for position 30225 and was notified of seven positions to enable him to apply as a matter of priority.
[76] In relation to the issue of the welfare project team, I note that Mr.Odgers has been given the opportunity to apply for numerous jobs, perhaps seven. He applied for two to three positions. The explanation that Mr.O’Mallon gave regarding the welfare position was that Mr.O’Mallon received no application for it from Mr.Odgers. 40 There is also the issue of Mr.Odgers’ repeated failure to be successful in interviews for ‘PD2’ positions. There is considerable force in WorkSafe’s submission that:
‘it would be his fourth PD2 position so there’s really no question that he would have been suitably qualified for it.’ 41
[77] Mr.Odgers was not given an interview for the welfare position or notified of it. However, he was notified of seven other positions, and was repeatedly unsuccessful when interviewed, and only applied for some. In my view he was overall given the ‘priority’ required by the Agreement. In the alternative, I note that the position has been filled, so there is no longer any position which I can order WorkSafe to consider Mr.Odgers for. In all the circumstances, as a matter of discretion, I am not prepared to make any orders with respect to that position. Mr.Odgers has been in my view fairly treated and it would not be appropriate to issue any orders.
[78] On the material before me I am overall not persuaded that WorkSafe has breached any provision of the Agreement. I am not persuaded to make any determinations or orders beyond this decision. I dismiss the application.
[79] Given this decision it is not necessary to consider the form of any order. However, for the sake of completeness, the parties agreed that the initial order sought, that Mr.Odgers be appointed, is outside power. There is an implied limitation on Commonwealth legislative power: Re AEU. Any order which operates to ‘destroy or curtail the continued existence of the States or their capacity to function as governments’ will be outside power, in particular orders that deal with:
‘[the] right to determine the number and identity of persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice on redundancy grounds.’ 42
[80] There are however what the High Court referred to as questions of ‘degree’ 43, which do not deal with such matters. Such questions of degree were considered in AEU v. Minister for Education for Victoria44. It may be that orders might or might not be made consistent with that decision, but it is unnecessary to consider such matters further given my decision.
DEPUTY PRESIDENT
Appearances:
Mr G Beckman from the Community and Public Sector Union
Mr R Niall of Counsel for the Victorian WorkCover Authority
Hearing details:
2009
3, 21 and 22 September
Melbourne
Final written submissions:
Respondent: 6 and 20 October 2009
Applicant: 13 October 2009
1 Exhibit WorkSafe 10, paragraph 5
2 184 CLR 188
3 Exhibit CPSU11
4 Exhibit CPSU1, paragraphs 52-90
5 PN487-489
6 Exhibit CPSU1 paragraph 25
7 Exhibit CPSU 1, paragraphs 53-90
8 Exhibit CPSU3
9 PN582-585
10 PN593
11 Exhibit CPSU5
12 PN667
13 Exhibit CPSU7
14 Exhibit CPSU6
15 Exhibit CPSU8 and 9
16 Exhibit CPSU4
17 622-634
18 Exhibit WorkSafe 7, Witness statement of Christopher Paul O’Mallon, paragraphs 11-28
19 Exhibit WorkSafe 7, Witness statement of Christopher Paul O’Mallon, paragraph 30
20 PN1169
21 Exhibit Workcover 7, attachment Com-1
22 Exhibit WorkSafe 6, paragraph 26-32
23 PN1104-5
24 Exhibit WorkSafe 8, paragraphs 23-29
25 Exhibit CPSU 1, witness statement of Grant Odgers, paragraph 20, Attachments A3 and A4
26 Exhibit CPSU 1, witness statement of Grant Odgers, paragraph 20, Attachment A6
27 Exhibit A3, attachment A3 to witness statement of Mr.Odgers
28 Attachment A4 to Witness statement of Mr.Odgers
29 PN188
30 Exhibit WorkSafe 4
31 Exhibit WorkSafe 9
32 Exhibit WorkSafe 3
33 Exhibit CPSU13
34 Exhibit CPSU 1, paragraph 56, Attachment5 A5.
35 Exhibit CPSU 1, paragraph 56-63
36 Exhibit WorkSafe 7, Attachment Com1
37 PN480-481
38 PN480-481
39 PN134-140
40 PN1154
41 PN1564.
42 Re AEU (1995) 184 CLR 188
43 Ibid. at 232-233; 234
44 (1995) 61 IR 174
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