United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board

[2012] FWA 3618

[2012] FWA 3618

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute in relation to flexible working arrangements

United Firefighters' Union of Australia
v
Metropolitan Fire and Emergency Services Board
(C2012/3264)

COMMISSIONER ROE MELBOURNE, 27 APRIL 2012

Alleged dispute concerning selection process for Station Officers training course. Clause 19 Dispute Resolution of Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia Operational Staff Agreement 2010.

[1] On 2 April 2012 the United Firefighters’ Union of Australia (UFU) made an application under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure. The dispute is pursuant to the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia Operational Staff Agreement 2010 (the Agreement). The Agreement was approved under the Fair Work Act 2009 (the Act) on 23 September 2010. 1 The employer covered by the Agreement is the Metropolitan Fire and Emergency Services Board (MFB).

[2] The dispute was subject to conciliation conference on 4 April 2012. Arising from that conference I made the following recommendation and the parties agreed to abide by the recommendation as the resolution to the dispute.

“ 1. Without admission that the pre-selection process for the current Senior Officer course was inappropriate, the MFB will consult with the UFU as part of the current conciliation step in C2012/3264 concerning the pre-selection process including supporting material and processes for future courses. This will include consideration of the extent to which candidates who have recently successfully completed pre-selection for a previous course but were not high enough ranked for that course need to re-complete all elements of the process. The parties will meet at least twice over the next month. In the event that the matter is not resolved within that time frame either party will have access to Clause 19 of the Agreement to resolve the issue.

2. The parties agree that the issue of whether or not there was unfairness in the pre-selection process for the current course will be determined by FWA. The parties agree to abide by a recommendation as the resolution of this matter. FWA will hear the submissions of the parties at 9.30am on Tuesday 24 April 2012. If FWA finds that there was unfairness the recommendation may include a requirement for some or all of the unsuccessful candidates to be placed in a future course or other solution that FWA determines is appropriate to resolve the unfairness. This process will not affect the current course.”

[3] In accordance with the recommendation I heard the submissions of the parties on 24 April 2012. I granted leave for the UFU to be represented by Maurice Blackburn and for the MFB to be represented by Corrs Chambers Westgarth.

[4] I had before me evidence that the relevant steps of the disputes settlement procedure of the Agreement had been completed prior to conciliating the matter on 4 April 2012. It is not contested and I am satisfied that the matters in dispute are within the ambit of Clause 19, the dispute settlement procedure. The Agreement provides for progression of Leading Firefighters to Station Officers (Clause 69) and also for the process surrounding MFB Polices (Clause 30). MFB Polices relevantly include the Personnel Management Principles and the Assessment Policy. The dispute concerns the process of recruitment for the position of Station Officers.

[5] On 24 April 2012 I considered the written submission of the UFU and the witness statements and attached documents from Casey Lee, UFU Industrial Relations Manager and from PT, a Leading Fire Fighter who applied to participate in Station Officer Course 49. I also considered the submissions of the MFB. The MFB also provided supplementary written submissions after the hearing.

[6] MFB Station Officer recruitment involves two separate processes: the selection process and the training process. To be classified in a substantive position as a Station Officer the leading firefighter must meet relevant prerequisites and then first be selected for a training course and then successfully complete the training course. There are only approximately 20 places available on the training course but many more leading firefighters generally apply to be selected for each training course. The selection process is divided into three stages. The first stage is a written exam. Participants are required to obtain at least 70% to proceed to the next stage. The second stage is a practical assessment drill. The third stage is an interview before a panel of three senior firefighters and one human resources employee. The third stage focuses on interpersonal skills and leadership potential. The three stages are given scores out of different totals but the scores for each of the three stages are then weighted equally to produce an overall score and ranking.

[7] The UFU dispute follows a grievance lodged by a leading firefighter, PT, who was ranked 22 out of 60 in the selection process for the most recent course (Course 49) and therefore narrowly missed out on being amongst the 20 selected.

[8] The relevant events surrounding the intake for Course 49 are as follows:

• The intake commenced in November 2011.



• On 25 January 2012 the candidates for selection completed the written exam.



• The top 60 participants in the written exam stage were selected to proceed to the next stage. Those candidates undertook the practical assessment drill in early February 2012.



• On 16 February 2012 Commander Katsikis conducted a voluntary workshop to assist candidates to prepare for the interview stage. Commander Katsikis outlined the style, structure and delivery techniques which candidates should consider. Approximately 25 candidates attended including PT.



• Commander Katsikis was advised on 19 February 2012 that he may be required for the interview panel.



• The questions to be used by the interview panel during the interviews were finalised on 20 February 2012.



• The interviews took place following this and were completed by 13 March 2012.



• The interview panel attended by PT consisted of Assistant Chief Fire Officer Quinton (panel chair), Commander Swift, Senior Station Office Mallterick and Employee Services Manager Lipski. Commander Swift was only available for about half the interviews and was replaced by Commander Katsikis when Commander Swift was not available. The other members of the panel were present for all interviews.



• Panel members did not give individual scores but the panel allocated each candidate a score out of 30.



• 20 candidates were selected and PT was ranked 22.



• PT submitted a grievance on 15 March 2012. PT received feedback on his performance during the selection process and responses to the concerns he raised about the changes to the panel composition and adherence to the Assessment policy.



• PT scored 16.75 on the interview stage of the process. Had PT scored 0.25 or 0.5 better it is likely he would have been in the top 20. 10 of the 20 successful candidates scored more than 16.75 on the interview stage and 10 scored less. Of the 40 unsuccessful candidates only 3 scored more than 16.75.



• The grievance was not resolved to the satisfaction of PT or the UFU and the matter then proceeded to FWA for conciliation.

[9] The UFU say that it was unusual for panel members to be changed during the process. The MFB say that it is not unusual given operational requirements.

[10] The MFB contend, and it was not seriously contested, that other members of the panel also provided workshops to candidates and that this was established practice. Commanders are expected to assist staff to access promotion opportunities and build skills and capacity. The MFB 2012 Business Plan encourages this outcome. The MFB say that Commander Swift and Commander Katsikis provided advice, assistance and encouragement to candidates for Course 49.

[11] The MFB argue that panel members understand that they should cease any such advice, assistance and encouragement to candidates once they are selected for the panel and particularly once the questions are set for the interview process. The MFB argue and I accept that if a panel member, being aware of the questions to be asked, provided such assistance it could lead to unfairness.

[12] The MFB argue, and I accept that PT scored very well on the interview but less well on the written test. MFB argue that it was his performance on this matter not the interview which led to him being unsuccessful.

[13] The UFU argue that the Selection Process was unfair because:

• Clauses 6, 8, 9 and 12 of the Assessment Policy of the MFB were not complied with in that:



• Not all candidates were prepared for the interviews in the same way.



• Not all candidates were advised of their rights to appeal.



• The interview panel was not fair in that its composition was variable and that there was variable access to preparation given to candidates.



• Candidates were not offered a right to appeal.



• The effect of this failure is that principles of personnel management set out in the Personnel Management Principles policy of the MFB were not complied with in that individuals were not selected in a fair and open competition on merit.



• The effect of substituting Commander Katsikis for Commander Swift for some interviews increased the potential for variance in the scores. Very small differences in the scores of the interviews would affect the outcomes. This creates unfairness. The unfairness is compounded by the potential advantage to employees who had attended a workshop by Commander Katsikis and then had Commander Katsikis on the panel when compared to those who did not have this potential advantage. The UFU argue that the interviews could have been timetabled to allow for all panel members to be consistent. The lack of individual marks from each panel member also means that the process lacks fairness and transparency.

[14] In response the MFB argue that:

• The Assessment policy only applies to assessment during the training program itself. The Assessment policy defines “assessment” as “the process of collecting evidence to make a judgement as to whether or not competency has been achieved” and the purpose of assessment is defined as relating specifically to qualifications, competency assessment, accreditation and to determine advancement through the career pathways (Clause 4). The Assessment policy also states that “all assessments will be made against accredited curriculum, endorsed competency standards or recognised industry standards used by MFESB” (Clause 5). Therefore there has been no breach of the Assessment policy.



• The process for selection for the Station Officers course complies with the Personnel Management Principles policy in that the individuals are selected in a fair and open competition on merit. The MFB argues that the requirements of the selection process are clearly advised to all applicants and those requirements are fair and merit based.



• The practice of Commanders providing support, advice and encouragement to potential candidates is encouraged and there is no restriction on candidates having access to this. PT accessed such advice from Commander Katsikis. Other members of the panel have provided such support to other candidates. At the time that Commander Katsikis and Commander Swift provided this support and advice to candidates they did not know what the questions would be in the interviews. The assessment of candidates is based on their answers to those questions. Once the questions were known and the panel members selected there was no further support or advice provided by panel members.



• It is impractical to require that all members of the panel be consistent in all circumstances. A panel member may be unavailable due to operational requirements or illness. 75% of the panel was consistent at all times. The absence of individual scores reduces any effect the change of panel member may have on the consistency of outcomes. The panel members as a whole and the Chair ensure consistency and reliability and fairness.



• One successful candidate, ranked number 11, attended the workshop with Commander Katsikis and was interviewed by the panel including Commander Katsikis but scored significantly lower than PT on the interview. There was one other successful candidate who attended the workshop with Commander Katsikis and was interviewed by the panel including Commander Katsikis. There was at least one candidate who attended the workshop with Commander Katsikis and was interviewed by the panel including Commander Katsikis but who was unsuccessful. MFB argue there is no basis for the inference that PT was disadvantaged because his panel included Commander Swift when compared to the others who attended the workshop with Commander Katsikis and attended a panel with Commander Katsikis.

[15] The UFU submitted that the MFB had not been consistent in their position concerning the applicability of the Assessment policy. The UFU point to Frequently Asked Questions for Station Officer selection on the MFB intranet which says that: “As per MFB Assessment Policy all candidates upon request are entitled to review and or gain feedback relative to any stages of the pre-selection process” and that “candidates will be notified of the outcome of assessments and given the opportunity of review and or feedback if requested, as per assessment policy.”

Conclusions

[16] I am satisfied that candidates are provided with reasonable information about the process and the requirements for selection. Therefore, even if the Assessment policy does apply I do not consider that the approach taken is in breach of Clause 8 of the policy except perhaps in respect to the candidate being advised of procedures for appeal.

[17] I consider that candidates are provided with reasonable access to support and advice in preparation for the selection process. I accept that Commanders are encouraged to provide such support and advice and that such support and advice is reasonably accessible to candidates. I see nothing inappropriate in these arrangements. It is reasonable to expect candidates for leadership positions to show some initiative to obtain appropriate support and advice. Therefore, even if the Assessment policy does apply I do not consider that the approach taken is in breach of Clause 8 of the policy except perhaps in respect to the candidate being advised of procedures for appeal.

[18] Given the number of candidates involved and the nature of MFB operations, I consider that it would not be reasonable to require that the interview panel in all cases must have the same composition for all candidates. I accept that changing the personnel on the panel does somewhat increase the risk of variability. However, the practice of the MFB ensuring that 75% of the panel are consistent provides reasonable assurance of fairness, validity and reliability. Therefore, even if the Assessment policy does apply I do not consider that the approach taken is in breach of Clause 9 of the policy except perhaps in respect to the candidate being advised of procedures for appeal.

[19] I do not consider that the practice of group assessment by the panel rather than individual scores by panel members leads to unfairness or lack of validity and or reliability. There are strengths and weaknesses in both approaches. Particularly in the context of changing panel members the group approach may reduce the risk of inappropriate variability of assessment. A process whereby panel members do not provide individual scores is common in job selection processes but less common in training assessment processes. The process in this case is a pre-selection process not an assessment process as part of the training course.

[20] I accept that there may be some advantage to a candidate in attending a workshop conducted by a person who has been on an interview panel in that the candidate may get a clearer understanding of expectations and the approach likely to lead to success. However, provided that the person conducting the workshop does not know the questions to be asked, I do not see any significant risk to fairness or reliability in that person subsequently being a member of the panel. I am satisfied that members of the panel other than Commander Katsikis also provided support and advice to candidates and then participated in the panel. In this context I am not satisfied that Commander Katsikis being on the panel was inappropriate. I am not satisfied that there is any demonstrated advantage that could have affected the fairness of the outcomes to those who attended Commander Katsikis’s workshop and then an interview with Commander Katsikis as a panel member. I note the evidence that PT scored very well on the interview when compared to many other successful candidates including at least one who attended Commander Katsikis’s workshop and then an interview with Commander Katsikis. I am satisfied that the assessment is primarily related to the individual responses to the questions asked.

[21] I accept that there are subjective elements to the interview assessment which are balanced by the other more objective but narrower elements of the selection process. I accept that relatively small variations in the interview assessment can affect the outcome of the selection process. However, some level of subjectivity is unavoidable in the assessment of leadership and communication skills. These are skills which are required in Station Officers. I therefore do not accept a proposition that it is practical or appropriate to seek to remove the capacity for subjective assessments to influence selection outcomes.

[22] I am not satisfied that the variable composition of the interview panel in this case has resulted in unreliable or invalid assessments nor in a process that is unfair or lacking in transparency. Therefore, even if the Assessment policy does apply I do not consider that the approach taken is in breach of Clause 6 of that policy.

[23] The UFU argues that the lack of an appeal process and consistent advice about that appeals process to candidates is in breach of Clauses 6, 8, 9 and 12 of the Assessment policy and means that the process is not fair and open as required by the Personnel Management Principles. The MFB argues that the selection process must be distinguished from the competency based assessment process in the training course and that the information appropriate to an appeal in that context is quite different to that which may be applicable in a pre-selection process. The MFB argue that the grievance process under the Agreement is available and appropriate.

[24] I am satisfied that the Frequently Asked Questions on the intranet strongly suggests to candidates that the Assessment policy applies to the process for selection for the Station Officers course. If that policy applies I am satisfied that the MFB have not complied with that policy in respect to advising candidates of their rights to access the appeals process under the Assessment policy or in providing PT with the right to appeal consistent with that policy. The MFB have provided feedback and review of performance during the selection process as referred to in the Frequently Asked Questions. However, that feedback and review process may not be fully consistent with the Assessment policy.

[25] I am satisfied that it is not appropriate for all aspects of the Assessment Policy to apply to the pre-selection process. The wording of the policy makes it clear that it is not intended to apply to the pre-selection process but to an assessment process which is part of a training course. However, the Frequently Asked Questions suggest that it does apply at least as a guide. If it is read as a guide it would exclude those matters which are clearly specific to assessments during a training course. The MFB have accepted that candidates should continue to have a right to be notified of the outcomes of each stage of the pre-selection process and to review and or gain feedback relative to any stages of the pre-selection process.

[26] Even if it is accepted that the Assessment Policy does not apply to the pre selection process, I am satisfied that the absence of clarity around the nature of any grievance/appeals process was an unfair aspect of the selection process.

Remedy

[27] The UFU argued that those who have been unfairly disadvantaged by the selection process should be compensated or alternatively that the number of successful candidates who attended both Commander Katsikis’ workshop and the interview panel at which he was present (both parties agree that there are two firefighters in this category) should be the guide as to the number of unsuccessful candidates who were disadvantaged and that number should be compensated by being paid at Station Officer level. The MFB argued in their supplementary written submission that this claim goes beyond the dispute notified and beyond the scope of any recommendation that can properly be made consistent with Section 595 of the Fair Work Act 2009. The MFB also made submissions about the inappropriateness of a number of possible alternative remedies.

[28] The parties accepted that: “If FWA finds that there was unfairness the recommendation may include a requirement for some or all of the unsuccessful candidates to be placed in a future course or other solution that FWA determines is appropriate to resolve the unfairness.” To the extent that the MFB submissions are inconsistent with this I reject those submissions. To resolve the dispute I intend to operate within the scope of the recommendation accepted by the parties.

[29] As I have found that the only unfairness in the process was the lack of clarity around the appeals/grievance process I cannot identify anyone who might have been disadvantaged except for PT who sought access to the Assessment policy appeals process. However, PT has had access to this appeals process. I consider this to be the appropriate appeals/grievance process for dealing with concerns about the pre-selection process as opposed to the individual assessment results during the selection process. I also consider the remedy proposed to be disproportionate. I do not consider that those who attended both Commander Katsikis’ workshop and the interview panel at which he was present to have been unfairly advantaged. The outcomes of the selection process have not been affected by any failings in the appeals/grievance process. There is no basis for a remedy which changes the outcome of the selection process.

[30] I recommend that the grievance/appeals process should be clarified utilising the process set out in Recommendation 1 of 4 April 2012. I recommend that grievances concerning alleged unfairness of the pre-selection process should continue to be dealt with through the grievance and disputes settlement process of the MFB and the Agreement. It is the process for dealing with grievances concerning individual assessment results in the pre-selection process for the Station Officers course which needs to be clarified.

COMMISSIONER

 1   PR501990.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR523137>