Richard Giordano v Linfox Australia Pty Ltd

[2017] FWC 6937

[2017] FWC 6937 [Note: An appeal pursuant to s.604 (C2018/187) was lodged against this decision - refer to Full Bench decision dated 26 March 2018 [[2018] FWCFB 1731] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Richard Giordano
v
Linfox Australia Pty Ltd
(C2017/5573)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 22 DECEMBER 2017

Alleged dispute about matter arising under the enterprise agreement – dispute resolution – principles of construction of agreements – application of Berri.

[1] Mr Richard Giordano (Applicant) is employed by Linfox Australia Pty Ltd (Linfox) as a casual Transport Worker – Grade 6 at the Woolworths site in Broadmeadows. 1

[2] On 10 October 2017, the Applicant lodged an application under s.739 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedure of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014 (Agreement).

[3] The Agreement is a single enterprise agreement 2 that covers, and applies to, Linfox, the Transport Workers’ Union, the National Union of Workers, and “each employee at the Sites specified in Appendix 4.”3 It is not in dispute that the Agreement covers, and applies to, the Applicant.4

[4] Conciliation before the Commission did not resolve the dispute and the matter was allocated to me to determine by arbitration.

Issue for arbitration

[5] On 1 May 2016, the Applicant applied for a position as a Fuel Tanker Driver with Linfox. On or about 15 June 2016, the Applicant was advised by Linfox that his application was unsuccessful.

[6] The sole issue in dispute is whether Linfox complied with clause 68.3 of the Agreement when it rejected the Applicant’s application for a position as a Fuel Tanker Driver in June 2016. 5

[7] The Applicant conceded prior to the hearing of the matter that Linfox had complied with clause 68.1 of the Agreement. No submissions were made by either party in respect of clause 68.2.

[8] The resolution of the dispute therefore turns on the proper construction of clause 68.3. Clause 68 of the Agreement provides as follows:

“68. PREFERENCE FOR INTERNAL RECRUITMENT

68.1 Linfox must ensure that Employees have a reasonable opportunity to be aware of, and to apply for, any promotional position or positions of interest at other Linfox sites for which there is a vacancy.

68.2 Linfox may advertise the vacancy and seek applicants from outside Linfox.

68.3 All things being equal, Linfox will prefer Employee candidates for the internal vacancies.”

Jurisdiction

[9] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term at clause 33. It is not in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution provision of the Agreement. Having regard to the information in the Form F10 application and the views of the parties, 6 I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration.

Background to the dispute

[10] Linfox is contracted to perform deliveries of bulk petroleum product from fuel terminals in Victoria, New South Wales and Queensland to certain BP and Shell service stations. Fuel is regarded as a dangerous goods product, as it is highly volatile if mishandled or if road accidents occur. 7

[11] It is not in dispute that: 8

(a) the Applicant applied for the position of Fuel Tanker Driver on 1 May 2016;
(b) the position was based at Linfox’s site in Altona; and
(c) at the time of this job application, the Applicant had no Fuel Tanker Driver experience.

[12] The Applicant contends that on 24 May 2016, he received a telephone call from Linfox recruiter, Mr Michael Wigginton who invited him for an interview and driving test, which he attended on 27 May 2016. During the interview, the Applicant said that he informed the Site Manager, Mr Tony Busbridge, that he held no prior experience in Fuel Tanker driving to which Mr Busbridge advised that this was “not a problem” as Linfox would train him.

[13] Following the interview and driving test, the Applicant attended a medical examination.

[14] The Applicant said that once the interview, driving test and medical were complete, it was suggested to him by Ms Annemarie Badenhorst, Recruitment Officer for Linfox, that he make arrangements to obtain an “SLP licence,” which would allow him to access fuel terminals.

[15] Sometime soon after 9 June 2016, the Applicant said that he spoke with Ms Badenhorst who informed him that he had been unsuccessful in his application, but he was not given a reason why.

Events post-dating rejection of job application

[16] On or around 31 October 2016, the Applicant said that he was sent an email from the Linfox Human Resources department informing him of a vacancy in another role. This prompted the Applicant to telephone Human Resources to query whether his application for the Fuel Tanker Driver had since been reconsidered. The Applicant contends that the person he spoke to, Ms Rhiannon Mecchi, Recruitment Officer for Linfox, told him that his application had been unsuccessful in June 2016 because he had two strikes against his name. This concerned the Applicant because he was of the view that he had only accrued half a strike.

[17] It is not in dispute that Linfox issues “strikes” to its drivers and this is similar to the way demerit points are issued to motorists. If a driver is involved in a blameworthy motor vehicle accident and causes damage that costs less than $500 to repair, half a strike is issued to the driver. If a driver causes damage that costs more than $500 to repair, a full strike is issued. An accumulation of four strikes in a three year rolling period can result in a driver’s employment being terminated by Linfox.

[18] Ms Mecchi filed a witness statement in these proceedings in which she denied looking into the Applicant’s strike history and denied informing the Applicant that he had two strikes on his record. She said that the only discussion she had with the Applicant was when he called on or about 31 October 2016. On that occasion, Ms Mecchi said that she referred the Applicant to her colleague Ms Preushce. The Applicant conceded this issue and on 7 December 2017, informed the Commission and Linfox that Ms Mecchi was not required for cross examination.

[19] The Applicant said he sought to clarify his strike history and telephoned Mr Bevan Gillon on 2 November 2016. At the time, Mr Gillon was employed by Linfox as a Labour Planner. He was the Applicant’s line manager and his role involved planning the casual drivers’ rosters, including the Applicant’s. The Applicant said that Mr Gillon told him that he would speak with Human Resources about the Applicant’s strike history. On 2 November 2016, the Applicant sent Mr Gillon an email that Mr Gillon could forward to Human Resources on his behalf. 9

[20] In or around March 2017, the Applicant secured a Fuel Tanker Driver position with another company, a role that he performed alongside his casual employment with Linfox.

[21] Also in or around March 2017, the Applicant met with Linfox’s Altona Site Manager, Mr Peter McCallum and explained to Mr McCallum the work he had been performing at another company since March 2017 as a Fuel Tanker Driver. The Applicant said that when he had explained to Mr McCallum “all of the inductions and experience” he had accrued since his job application had been made on 1 May 2016, Mr McCallum ranked the Applicant at the top of the list of potential candidates for a future Fuel Tanker Driver role with Linfox. 10

[22] On 19 March 2017, the Applicant was involved in a driving incident that resulted in Linfox issuing him with a strike. During a meeting with Mr Gillon to discuss the 19 March 2017 incident, it became apparent that the Applicant did only have half a strike at the time of his 1 May 2016 application for the Fuel Tanker Driver role. This prompted the Applicant to bring this application to the Commission.

Mention

[23] At a Mention on 7 December 2017, which was held after the evidence and submissions in the matter had been filed and served, the Applicant advised Linfox and the Commission that his application concerned:

(a) his job application for a Fuel Tanker Driver on 1 May 2016 (and not any later job application that the Applicant had submitted to Linfox); and
(b) the application of clause 68.3 only (and that he no longer pressed his earlier arguments in respect of clause 68.1).

[24] The Applicant sought an order seeking that Mr McCallum be compelled to attend the Commission to give evidence about his conversation with the Applicant in or about March 2017. As noted above, this meeting post-dates the decision by Linfox not to offer the Applicant the Fuel Tanker Driver role by approximately nine months and, in that time, the Applicant had secured a Fuel Tanker Driver role with another company that he was performing alongside his usual employment at Linfox. I was not satisfied that Mr McCallum’s evidence was relevant to the issue I was required to determine under the application, being whether Linfox complied with clause 68.3 in June 2016 when it rejected the Applicant’s 1 May 2016 application for a Fuel Tanker Driver role. Accordingly, I declined to issue the order sought by the Applicant.

[25] In addition, the Applicant had earlier sought an order that Mr Gillon be compelled to attend the Commission to give evidence. However, the Applicant advised Linfox and the Commission that he did not press this application. Accordingly, no such order was made.

Submissionsand evidence

[26] Linfox led evidence from Mr Rob Volarich, Group Manager – Recruitment. Mr Volarich said that Linfox observed the following process set by operational management when recruiting for the position of Fuel Tanker Driver: 11

Step 1: Candidates are ranked by reference to their Bulk Dangerous Goods driving experience and their years of experience driving heavy combination and multi-combination vehicles. An assessment is also made of a candidate’s “soft skills,” including general behaviour, safety, attitude, team orientation and attention to detail.

•  2: Preferred candidates are contacted and screened via a telephone interview.

•  3: Successful candidates progress to an in person interview with the Recruitment Officer.

•  4: The Recruitment Officer determines the candidate’s “soft skills” such as their safety attitude, team orientation and attention to detail.

•  5: The Recruitment Officer shortlists candidates and presents the list to the Site Manager for review.

•  6: On approval by the Site Manager, shortlisted candidates are invited to attend an interview with the Site Manager.

•  7: The candidate undergoes an in-cab assessment. The purpose of the in-cab assessment is to evaluate the candidate’s basic driving skills. This sometimes occurs in conjunction with step 6 for efficiency and administrative reasons.

•  8: The candidate will be is assessed for suitability of the role.

•  9: If suitable, the candidate is required to attend a medical and to undertake a police check.

•  10: If the candidate passes the medical and the police check, a reference check is conducted.

•  11: If satisfied with the reference check, the candidate is issued with a letter of offer.

[27] Mr Volarich said that the Applicant reached step 10. He did not pass step 10 on account of an unsatisfactory reference check.

[28] Mr Volarich said that Linfox conducts reference checks to verify a candidate’s tenure and performance. A reference check was conducted in relation to each of the candidates that reached step 10 in the process. Each of the successful candidates for the Fuel Tanker Driver position satisfactorily passed the reference check step.

[29] It is standard Linfox policy to conduct an internal reference check through an employee candidate’s “initial manager” first. 12 Mr Gillon was the Applicant’s line manager at the time and had been a transport manager with Linfox for many years (although is no longer an employee of Linfox). Linfox obtained a reference from Mr Gillon in relation to the Applicant. In relation to this reference check, Linfox relied upon an email that Ms Badenhorst sent to Mr Craig Kuschert, National Manager of Petrochemicals and Industrial Division on 15 June 2016, which said: 13

“Hi Guys

Just a quick update. I spoke to Bevan (Woolworths) about Richard Giordano. There was a concern from our end regarding his reversing incidents.

Based on the feedback that I received from Bevan I do not believe we should progress with Richard. He is described as middle of the road and recently made a few minor mistakes that shows that lack of focus.

Please confirm if you are happy for me to make him unsuccessful.

Regards

Annemarie”

[30] Mr Kuschert responded:  14

“Agree.”   

[31] Mr Volarich said that Mr Kuschert is responsible overall for the Bulk Fuels contract across the three sites and is “quite often the decision maker” for Fuel Tanker Driver roles. 15 The reference to “Bevan” in Ms Badenhorst’s email was understood by the parties to be a reference to Mr Gillon.

[32] It was not in dispute that the Applicant was involved in three driving incidents during the period between April 2015 to March 2016, which pre-dated his application for the Fuel Tanker Driver role on 1 May 2016:

(a) The first incident occurred on 16 April 2015. The Applicant caused damage to a trailer tail light assembly for which he received half a strike. 16
(b) The second incident occurred on 9 December 2015. The Applicant caused damage whilst reversing a truck. He did not receive a strike for this incident. 17
(c) The third incident occurred on 6 March 2016. The Applicant reversed into another prime mover while parking at the Woolworths Distribution Centre. He did not receive a strike for this incident. 18

[33] Linfox submits that the “reversing incidents” referred to in Ms Badenhorst’s email to Mr Kuschert on 15 June 2016 was a reference to the three reversing incidents discussed above. The Applicant conceded this. 19

[34] Linfox also relied upon the completed reference check materials for three of the successful applicants for the Fuel Tanker Driver role. 20 These three reference checks were conducted on or around 15 June 2016, around the time that the Applicant’s reference check with Mr Gillon was conducted. Linfox relied upon this material as evidence that these successful candidates had no identified driving issues. An analysis of this document shows that the first successful candidate was described as having an excellent work performance and experience driving “B doubles, singles and semi work.” The second successful candidate was described as having an excellent work performance and as “one of the best drivers there,” with no strikes. The third successful candidate was described as having an excellent work performance, with experience driving “singles and doubles” with “no incidents that I can recall.”

[35] The Applicant said that Ms Badenhorst relied upon the reference from Mr Gillon to determine his application, but Mr Gillon was not listed as one of his referees 21 and was not “suitably qualified to provide an assessment of a truck driver’s ability or lack thereof.”22 The Applicant described Mr Gillon’s feedback as vindictive and unprofessional. However, when asked under cross examination what he understood the description of himself as “middle of the road” in Ms Badenhorst’s 15 June 2016 email meant, the Applicant said he thought it meant “not exceptional” but “not bad” and conceded it was “average.”23 Notwithstanding this, the Applicant said he stood by his comment that Mr Gillon’s description of him was vindictive and said that it was necessary to “read between the lines.”24

[36] In summary, the Applicant contends that: 25

(a) The only reason he did not get the Fuel Tanker Driver job in June 2016 was because he failed the reference check at step 10.
(b) Linfox could have got a reference from someone other than Mr Gillon, because he and Mr Gillon did not get along very well and Mr Gillon has no “professional standing as a driver trainer.”
(c) Linfox could have called the Applicant’s nominated referee, but did not.
(d) The three reversing incidents referred to above were minor incidents and the Applicant had complied with Linfox policy to report every incident, even if it was just a “minor mishap.”
(e) He had passed the in-cab driving assessment at step 7 of the process.
(f) External recruits are not subject to the same policies as internal recruits, which put him at a disadvantage.
(g) He is equal to external candidates.

[37] Accordingly, the Applicant said that Linfox did not comply with clause 68.3 of the Agreement as it did not treat him fairly and equally. 26 He has asked the Commission to determine whether Linfox should have preferred him for the internal vacancy over external recruits.27

[38] In response, Linfox contends that the matter before the Commission concerns the application of clause 68.3 of the Agreement. It notes that clause 68 of the Agreement has three sub-clauses. Clause 68.1 requires it to ensure that employees have the reasonable opportunity to be aware of and to apply for vacancies. Linfox may seek applicants external to the company pursuant to clause 68.2. It must then apply an assessment. “If that assessment results in ‘all things being equal,’ then the internal (employee) candidate will be preferred for the position’” pursuant to clause 68.3.

[39] In respect of clause 68.3, Linfox says that:

(a) Clause 68.3 of the Agreement has a plain and ordinary meaning and no ambiguity exists.
(b) The plain meaning of clause 68.3 requires determination of whether all things were equal when assessing the Applicant’s job application.
(c) Clause 68.3 of the Agreement does not describe the recruitment process that Linfox must observe.
(d) A reference check was conducted for both internal and external candidates that reached that step in the process. The three successful candidates for whom a reference was obtained at around the same time as the Applicant shows that those candidates had no identified driving issues. However, the Applicant did not pass the reference check step. The number of strikes the Applicant had was not relevant.
(e) The issues identified by Mr Gillon in the reference check related to three reversing incidents. No issues were raised with the Applicant’s driving assessments.
(f) When it came to an assessment of whether all things were equal, Linfox concluded, on the basis of the Applicant’s failed reference check, that all things were not equal and the Applicant “was not able to meet the criteria of ‘all things being equal’ in order to enact the next part of the sentence.” 28

[40] Accordingly, Linfox contends that the Commission must find that Linfox complied with clause 68.3 of the Agreement and it was not required to prefer the Applicant for the role over external candidates.

Consideration

[41] In Australian Meat Industry Employees Union, The v Golden Cockerel Pty Limited, 29 a Full Bench of the Commission set out the relevant principles to be applied in the construction of agreements. These principles were revised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited.30 I respectfully adopt and apply the principles in this decision without restating them.

[42] The construction of the Agreement begins with a consideration of the ordinary meaning of the relevant words. The proper meaning of clause 68.3 will turn on the language of the Agreement, having regard to its context and purpose. Context might appear from the text of the Agreement viewed as a whole, or the place and arrangement of clause 68.3 in the Agreement, or the legislative context under which the Agreement was made and in which it operates.

[43] Outside of clause 68, there is little that can be gleaned from the context of the provisions of the Agreement that provides assistance in the construction of clause 68.3.

[44] The heading of clause 68 identifies the subject matter of the provision as being “Preference for Internal Recruitment.” This evinces a preference being given to the appointment of employees to positions which become vacant.

[45] Clause 68.1 establishes that Linfox must ensure that employees have both a reasonable opportunity to be aware of, as well as apply for, any positions at other Linfox sites for which there is a vacancy. This includes any promotional position. This places a positive obligation upon Linfox to ensure that its employees are made aware of vacancies, including at other sites, within a timeframe that makes it reasonable for them to apply for such a position before applications close.

[46] Clause 68.2 confirms that Linfox may advertise the vacancy and seek applications from outside of Linfox. That is, applications for job vacancies are not confined to internal (employee) applicants only.

[47] The first sentence of clause 68.3 provides that “all things being equal,” Linfox will prefer “employee candidates for the internal vacancies.” An assessment of “all things being equal” necessarily involves an analysis by Linfox of all the applications received by it for a particular job vacancy. This includes both internal applications received by it through compliance with clause 68.1, and external applications received by it as a consequence of advertising pursuant to clause 68.2.

[48] The following interpretation of clause 68.3 is apparent from the context of clause 68 of the Agreement, viewed as a whole. If Linfox’s comparative assessment of all internal applications and external applications for the same role results in the circumstances between the respective candidates being the same, then the internal (employee) candidate must be preferred for the position before an external (non-employee) candidate. This interpretation is consistent with the plain and ordinary meaning of the language used.

[49] I note for completeness that neither party referred to any other contextual matter, such as the legislative context, to assist in the construction of clause 68.3.

[50] Having stated these general conclusions concerning the proper construction of clause 68.3, I turn now to the Applicant’s argument that Linfox:

(a) did not comply with clause 68.3 of the Agreement as it did not treat him “fairly and equally;” and
(b) should have preferred him for the internal vacancy over external candidates.

[51] I do not accept the Applicant’s argument. Firstly, clause 68.3 requires an assessment of whether all things are equal. It does not establish a test of fairness.

[52] Secondly, there is nothing in the language or structure of clause 68.3 that constrains the approach that Linfox adopts in its recruitment process. Accordingly, Linfox was not prevented from:

(a) observing its policy and obtaining a reference from the Applicant’s line manager, Mr Gillon, rather than from the Applicant’s preferred referee; and

(b) determining the Applicant’s job application on the basis of the reference provided by Mr Gillon.

[53] It is clear, on the evidence, that the Applicant did not pass his reference check on account of the three reversing incidents earlier discussed. The number of strikes the Applicant had accrued was not determinative. However, there were three external candidates who did pass this step in the process with a successful reference check at or around the same time.

[54] When Linfox conducted a comparative assessment of whether all things were equal between the Applicant and the relevant external candidates for the purposes of clause 68.3, Linfox was entitled to conclude that all things were not equal between them by reference to the outcome of the reference checks. Accordingly, I accept Linfox’s argument that it was not required to prefer the Applicant for the Fuel Tanker Driver role over external candidates.

Conclusion

[55] The issue for determination is whether Linfox complied with clause 68.3 of the Agreement when it rejected the Applicant’s application for a position as a Fuel Tanker Driver in June 2016.

[56] For the reasons set out above, I am satisfied that the answer to the issue for arbitration is “yes;” Linfox did comply with clause 68.3 of the Agreement when it determined, on an assessment of the material before it, that all things were not equal between the Applicant and the relevant external candidates.

[57] Accordingly, there was no obligation upon Linfox under the Agreement to prefer the Applicant for the internal vacancy of Fuel Tanker Driver, to which he applied on 1 May 2016.

[58] The dispute is determined accordingly.

DEPUTY PRESIDENT

Appearances:

R.F. Giordano, Applicant.

G. Katsifolis for the Respondent.

Hearing details:

2017.

Melbourne:

December 12.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR598992>

 1 Exhibit R1 at [29].

 2   Fair Work Act 2009 (Cth), s.12 and s. 172; [2014] FWCA 1141 at [1].

 3   Fair Work Act 2009 (Cth), s.52-53; Agreement at clause 2.1.

 4   Agreement, Appendix 4 at p.66, Transcript at [65]-[72].

 5   Exhibit A2 at p.5.

 6   Transcript at [35]-[50].

 7 Exhibit R1 at [13].

 8   Transcript at [51]-[64].

 9   Exhibit A3.

 10   Exhibit A2 at p.5.

 11   Exhibit R1 at [13], [16]-[28], Transcript at [467]-[496].

 12 Transcript at [426].

 13   Exhibit R1, Annexure RV-6.

 14   Ibid.

 15 Transcript at [514].

 16   Exhibit R1 at [48a] and Annexure RV-7, Transcript at [223]-[225].

 17   Exhibit R1 at [48c] and Annexure RV-9, Transcript at [226]-[229].

 18   Exhibit R1 at [48d] and Annexure RV-10, Transcript at [241]-[242].

 19   Transcript at [251]-[252].

 20   Exhibit R2.

 21   Exhibit R1, Annexure RV-2.

 22   Exhibit A2 at p.2.

 23   Transcript at [253]-[257].

 24   Transcript at [262]-[267].

 25   Transcript at [426], [429], [450], [316], [585], Exhibit A1 at p.9.

 26 Transcript at [323].

 27   Exhibit A1 at pp. 1 and 9.

 28   Respondent’s submissions dated 23 November 2017 at [39]; Transcript at [564], [559], [562].

 29   [2014] FWCFB 7447.

 30   [2017] FWCFB 3005.