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Fair Work Commission Transcripts |
102516633601
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1047813-1
COMMISSIONER CAMBRIDGE
C2013/462
s.739 - Application to deal with a dispute
Australian Institute of Marine and Power Engineers, The
and
Svitzer Australia Pty Limited
(C2013/462)
Sydney
10.13AM, WEDNESDAY, 10 APRIL 2013
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN SYDNEY
PN1
THE COMMISSIONER: Could I have the appearances in the matter today, please.
PN2
MR G. YATES: Certainly, Commissioner. If it pleases the commission, my name is Yates, initial G. I'm the Sydney national organiser with the Australian Institute of Marine and Power Engineers. With me today is MR B. VOID, who is the Svitzer engineer who was disadvantaged by the (indistinct) decision by Svitzer. Also with me is MR S. BROUN, who is the institute delegate at the workplace in Darwin and is also one of the union's national counsellors.
PN3
THE COMMISSIONER: Good. Thank you.
PN4
MR YATES: Thank you, Commissioner.
PN5
MR A. UMANSKY: Good morning, Commissioner. If the commission pleases, my name is Umansky, initial A. I'm the employee relations manager at Svitzer Australia Pty Ltd, the employer. With me today is MR A. MURRAY, marine and technical manager, for WA and Northern Territory.
PN6
THE COMMISSIONER: Good. Thank you. I think we've overcome the difficulties we had I think establishing the connection between Sydney and Darwin but now that appears to have been rectified so I think we're ready to proceed. We're on record, Mr Yates. At I suggest sometime if it's desired we can always go off record but it may be that there's some aspects of this that you might want to formally record at this point. It's your application.
PN7
MR YATES: Yes, certainly we have no objection to going on transcript. Thank you, Commissioner. Just for the record, yesterday evening I forwarded some documents to your email address, one of which was Mr Floyd's CV and there's an email dated 11 February 2013, an undated note signed by some eight crew members or employees at the Darwin operation. Upon an earlier date of 6 February 2013 the AIMPE extracted emails identified that the dispute was unresolved. The final date of the email is 15 March 2013.
PN8
In addition to that, there was three documents which - just for the Commissioner's information in relation to the certificate structure and the type of legislation that regulates the engineering qualifications, I forwarded that just for information for the commission and it may not be referred to. It was just a brief detail to show the certificate structure and that there is a great deal of difference between the letters of qualification as well as the commissions that are allowed once the certificate of competency is acquired under the licence issued either by the state authority or by the Australian Maritime Safety Authority (indistinct) systems.
PN9
With the dispute notification, I must apologise to the commission because (indistinct) time lodging electronically, I was without scanners or anything like that. I had to forward the whole agreement to the commission rather than the clause 10 and clause 16 which appears to be about - and clause 16 being the clause in the agreement that was of contention as to whether it's been applied properly in the circumstance. Have you received those documents, Commissioner?
PN10
THE COMMISSIONER: Yes, I can tell you that I've got all of that. I've got all that material. I can't say that I've read every detail of the agreement document or every word in the attachments that you've included with the more recent email but I've read I think what I hope to be the important parts of all of that.
PN11
MR YATES: Yes (indistinct) to clause 10 and clause (indistinct) and seek your assistance in discussing the matter (indistinct) in clause 16 that specifically relates to the recruitment process and what factors should be taken into account. Now, just if I commence, Commissioner, this is a (indistinct) dispute that (indistinct) at the workplace. However, we preferred to seek the assistance of the commission because of the failure of the company to acknowledge that they haven't applied the clause 16 in the appropriate manner. What we've said in our dispute notification is that number 1 the union wasn't notified of the vacancy, which is a requirement under clause 16.1.1 at dot point 1, where it says:
PN12
When Svitzer intends to recruit permanent engineers and trainees, it will advertise a position and the union will be advised of all of this and will be given a copy of the advertisement -
PN13
and identified (indistinct) consideration. We say that the union wasn't given a copy.
PN14
In relation to the actual dispute, the process for recruitment is really about those next three dot points which says:
PN15
Screen and interview the applicants -
PN16
and (indistinct) considers that an agreed employee representative will participate in the recruitment process. I might point out at this stage that the (indistinct) of the provision are it says that the decision of management in selecting the successful candidate would be final. However, if you refer to the final dot point where it says:
PN17
(indistinct) Svitzer will choose the successful applicant on the basis of merit, qualifications and experience.
PN18
If I could go to the process again, let me repeat that the union wasn't provided a copy of the job ad or notified of the vacancy, although that may be - or it was common knowledge at the workplace but the union wasn't advised of this. An example which - - -
PN19
THE COMMISSIONER: Sorry to interrupt you there but I suggest what's critical to that is what represents advice to the union? Would telling the local delegate represent advice? Would telling the general secretary? How does that satisfy, I suppose?
PN20
MR YATES: I've only just recently taken over the (indistinct) for the institute and I guess to be fair to the company it is (indistinct) we have elected officials that actually work for Svitzer itself (indistinct) positions. For example, our branch secretary for Queensland actually works for Svitzer in Brisbane and he has done so for 20-odd years. So it's a matter of sometimes the delegates are informed and sometimes the union is informed but in this case I believe that the workplace was informed that there was vacancy, so (indistinct) we're happy to concede that that's not a real major issue. However, in future we'd like that right to have that clearly spelt out that the delegate for the union will be informed - the delegate on behalf of the union - and vacancies are notified to the union via that fashion.
PN21
I note that the agreement technically says the Australian Institute of Marine and Power Engineers is the union and generally there is a lot of interaction between the officials - between the union (indistinct) and myself and also Mr (indistinct) in Sydney (indistinct) with Svitzer management. However, our local (indistinct) consultation (indistinct) conciliation and I don't want to have that get in the way of dealing with the issue of merit, qualifications and experience.
PN22
From the outset, if we can just run through a quick chronology of what took place. The vacancy that was created was not a new position. It was what they refer to as a hundred per cent position, which means a permanent full-time employee. The engineers at Svitzer work 182 days on roster and 182 days for (indistinct) so that 182 days of on roster gives an obligation to the hundred per cent employee. The position was a hundred per cent. That position was advertised somewhere around 18 January 2014. Mr Floyd put in an application re - I'm not aware whether the vacancy was first advertised internally and then externally (indistinct)
PN23
Mr Floyd applied for the position around early February. Mr Broun participated in some of the interviews - not all of them. Indeed, Mr Broun tells me (indistinct) Mr Broun only participated in the interviews where he did not know the candidates (indistinct) Mr Broun participated in two interviews and the rest Mr Broun knew the candidates, according to Mr Floyd, and Mr Broun did not participate in the interview involving Mr Floyd.
PN24
When Mr Floyd was interviewed I believe Mr Murray was part of the panel. The manager of Svitzer Darwin operation, Mr Wildman, and one of the HR officers of Svitzer participated via phone (indistinct) I must say at this point in time Mr Wildman is not here today. We find that extremely disappointing because he is the manager of the operation and it is the manager's decision at that end of the day that has caused this dispute to occur out of non-application of the agreement and we repeat that we're extremely disappointed that he's not here today.
PN25
The interview was, on his account, was unremarkable, apart from two things: that there was no technical components of the job actually gone into and Ms Steel or Mrs Steel from Svitzer's HR seemed to press the issue of whether Mr Floyd was more or less interested in a job share position or a permanent part-time position. Now, Mr Floyd's status with the company was approximately two or three years ago he commenced doing relief work for Svitzer as a casual and there was a temporary vacancy created sometime late last year whereby he allegedly took a leave of absence to go and work on (indistinct) Project in Darwin with one of the companies there (indistinct)
PN26
Mr Floyd was not formally appointed to that position but took it up in December last year and then has had no incidents and no black marks on his employment record, you might say, and also back in a (indistinct) relief employee. Relief employees happen to do a lot more shifts than the permanent employees because they're - they're not on-call all the time but they (indistinct) So (indistinct) the issue to do with the permanent part-time position, that was a management supposition. So Mr Floyd was working as an 80 per cent employee on a temporary basis with the company as a permanent part-timer and appointed for a period of up to - I think it was to January 2014. The conversation around the permanent part-time status and a job share arrangement and - for example, job share arrangements within the tug boat sector tend to (indistinct) they're not permanent part-time employees. They're not considered to be permanent part-time employees. They are a hundred per cent employees in a job share arrangement working an agreed percentage of the roster. So you might have a job share arrangement where somebody will presumably work 50 per cent of the roster and they reach an agreement with another employee at Svitzer, another engineer of Svitzer, and they would take up a hundred per cent role.
PN27
The permanent part-time status is separate to those arrangements. This is something that's peculiar to the tug boat sector because of the rostering arrangements and the requirements to crew work appropriately and thereby giving balance and so on in particular ports of engineers. (indistinct) Mr Floyd attempted to - he left the interview feeling that there was nothing uncontroversial apart from the question about the permanent part - sorry, the job share arrangements. After the interview Mr Floyd was provided with an appointment letter confirming the permanent part-time, so the percentage employee arrangements that (indistinct) 2014. That's dated 6 February. You've been provided with that correspondence.
PN28
It was later found out that Mr Floyd was not successful in getting the position. Mr Floyd (indistinct) at this stage has over some 25 years' experience working on tug boats throughout various (indistinct) in Australia and Port Headland, and has done relevant work and knows his tug boats in Darwin very well. It was later found out that the appointee was a class III certificate and that class III - although the agreement stipulates a recruitment (indistinct) that the minimum standards for recruitment at 16.2.1 agreed between the parties are a class I, class II or class III certificates of competency as required in (indistinct) business. The minimum certificates required by AMSA to (indistinct) in the tugs and (indistinct) is a class III requirement. However, Mr Floyd became aggrieved by virtue of the fact that he believed that the recruitment process was flawed because the merit principle wasn't applied.
PN29
In respect to the application of merit during job interviews, the agreement at the (indistinct) 16.1.1 clearly states that Svitzer will choose the applicants on the basis of merit, qualifications and experience. There aren't too many applicants around the country, if you advertised a job in the tug boat industry, that reply and have the credentials of Mr Floyd. Mr Floyd's experience of some 25 years as well as holding a Commonwealth certificate issued under the international convention, the Standards Training and Certification Watch Group (indistinct) is a certificate that is highly regarded not only in Australia, it is around the world a highly regarded certificate and the training in Australia is highly regarded around the world.
PN30
The issue about class III certificates, they are very, very, very qualified engineers as well. However, we say that given the competitive nature of the selection process - and this is the reason why we (indistinct) no qualifications and experience would select the person with the most highest advantageous qualifications to the company to (indistinct)
PN31
If I could move on to the question of (indistinct) merits should interpret a case - we believe in a recruitment process, that it is the careful assessment of those personal qualifications and capabilities likely to contribute to (indistinct) working or the function of the job as far as possible to preclude prejudice, favouritism or unjust (indistinct) discrimination based on ranking of the applicants based on ability. We say that measured against - and this is part of the reason why I sent you the extract of the (indistinct) is just to demonstrate that the class II certificate has a much broader licence capability to operate much larger and much more complex pieces of plant and equipment that are inside (indistinct) ships and also to show the difference in curriculum between the class II and a class III. Where do class II and class III certificates sit in relation to each other in terms of SAG and so on. To obtain the level of certificate of competency as class II marine engineering (indistinct) must have obtained a trainingship as an engineer (indistinct)
PN32
In Mr Floyd's case he was a fitter and turner originally and he became (indistinct) obtained his (indistinct) certificate. Then after doing the required amount of studying, sea time - and I believe the studying for (indistinct) was about eight months at a technical college, plus there was about 16 months' worth of sea time and then sit an oral examination. You won't be permitted to move to an engineering class II unless you have that required sea time and you complete further study at the college which about four semesters of college or university (indistinct) and then also the required amount of sea time (indistinct) vessels of a certain propulsion power.
PN33
Class III certificates are certificates that are (indistinct) but they generally (indistinct) They are classed as certificates but they are restricted in the areas of operation and they're not international certificates of competency. They're quite a handy ticket to have for bay ships and harbour operations but they're not what they call a coastal plume water free ticket where you get involved with much more complex pieces of plant and equipment. The candidates for a class III (indistinct) I think it's about 18 months' sea time if you had a (indistinct) engine driver certificate, which is what they call (indistinct) and I think the course (indistinct) to complete that course of study was about eight weeks.
PN34
We believe that - and I say from the outset that we're not having a go at the successful candidate. What we're doing is trying to enforce the provisions of the AIMPE Australia agreement and ensure that the standards inside that agreement are adhered to. In this case we believe that the merit distinction process has been flawed because the issue about the competitive selection process about qualifications and experience has not been applied properly and that Mr Floyd with his class II, together with 25 years' worth of tug boat experience has been overlooked.
PN35
With respect to the exchange of correspondence, we felt (indistinct) document number 2 that I sent you, which was Mr Floyd's advice to management that he challenges the decision to employ Mr (indistinct) over himself and he requests that the decision be formally reviewed. There has been no such action taken by management; that is, Mr Floyd has never received a response. The crew members - document number 3 - the crew members contacted me and said that they weren't satisfied with the decision-making process and that they believed that there has not been an appropriate process applied. That's in summary. I can read through the correspondence if you like but I think it's suffice to say that I've never seen this before where the whole crew protest the decision of management in relation to an appointment.
PN36
I will skim over document 4 because I've already referred to that, but in document 5 - and this is why it's disappointing that Wildman is not here - on 4 February I wrote to Mr Wildman and I asked him:
PN37
Can you please outline the factors that Svitzer took into account in making the recruitment decision. How Mr Floyd (indistinct) this criteria and why he was overlooked.
PN38
Mr Umansky replied on behalf of Mr Wildman and he says:
PN39
I refer to your email below.
PN40
Rather than read through the whole thing, there's an admission that's been made in this respect for which Svitzer do not acknowledge at that time but in dot point 2:
PN41
Outline (indistinct) in response to (indistinct) taken into account. Mr Floyd had qualifications and experience for the hundred per cent position, like the successful candidate.
PN42
Mr Umansky goes on further to say:
PN43
I am advised that the manager's decision incorporated his assessment that Mr Floyd's primary interest was in a part-time job share or full-time share position rather than in the full-time position being offered, based on previous representations made by Mr Floyd to that effect. This decision was also consistent with Svitzer's operation (indistinct) to obtain/retain services of the two qualified engineers (indistinct)
PN44
I'm not sure what that refers to, that final sentence. If I can point out that the crux of the matter is that number 1 the decision was flawed on the basis that the person with the most suitable qualifications - which is Mr Floyd - was overlooked; and number 2, that paragraph that the manager's decision was based on his perception of Mr Floyd's interest in doing part-time or job sharing positions isn't related to qualifications or experience. Looked at that way (indistinct) and that's basically our submission.
PN45
Also, there's a remark there in relation to growth or experience. Growth or experience, Commissioner, are - it might be relevant for a skipper or a boat driver where they need to know the port and (indistinct) the harbour master, but an engineer of Mr Floyd's experience would be eligible (indistinct) to any vessel in Australia and be capable of harbouring that vessel with some basic familiarisation on the day, and familiarisation of the technology onboard the vessel. The (indistinct) in response to Mr (indistinct) letter on 15 March, that relevant experience is irrelevant to (indistinct) position on a tug. These also - and again I will just demonstrate the attitude of the company in relation to this particular matter. There was a (indistinct) council held in Sydney of delegates from each port in Australia. Mr Floyd was in attendance, as well as the skipper's representative (indistinct) representative.
PN46
The HR manager for Svitzer (indistinct) Mr Mark Cox was present and I attempted to raise this particular issue with Mr Cox. Mr Cox initially tried to dismiss it, saying that the manager has the right to make the decision but I freely pointed out to him that the manager's decision in choosing the successful applicant (indistinct) must be on merit, experience and qualifications and their qualifications and experience. We have not received a response from Mr Cox either. That's the reason why we find ourselves here today.
PN47
I think I must stress again, this seems like it may sound like a minor dispute. The remedy for this dispute is something that is difficult to ascertain and in my submissions it is that when the institute is not seeking to displace the successful candidate. I just sort of wipe that from everybody's mind (indistinct) Mr Floyd. What the Institute has to do is make sure that the agreement - whether it's a condition of employment that the - in terms of wages, fatigue management (indistinct) standards or whether it be professional standards (indistinct) with the company, we are concerned that those things that we agreed with the company are adhered to and applied properly, and that's the reason why we find ourselves here today and (indistinct) and unless you've got any further questions, I think that basically summarises our submissions today in relation to this matter.
PN48
THE COMMISSIONER: I think I understand the case that you advance on behalf of Mr Floyd but I'm not sure what it is in terms of remedy that you're seeking here, in particular - I mean, I suppose looking at this from the commission's perspective you might ultimately be asking for the commission to provide for some sort of independent assessment of the process that's been undertaken here and that might be of some use but I suppose before we got to that point, what is it that you would seek that the company do in the circumstances? What should it do as a means to try and redress the position that you articulated?
PN49
MR YATES: Just looking at the response that Mr Umansky has provided and maybe I wasn't that clear about it but in relation to the response (indistinct) firstly, I will first go to construction provision of the agreement and (indistinct):
PN50
When Svitzer intends to recruit permanent engineers and trainees, it will advertise a position, screen the interviewed applicants and the employee may be involved in the process but the decision of management in selecting the successful candidate will be final. Two references and a medical fitness for the job -
PN51
but we say that the decision of management in 4.2 must have - the decision must then apply the final dot point, "the appropriate manner". We say that that response that Svitzer provided in relation to the manager's decision took Mr Floyd out of the selection process because he thought he was after a job share position. That's immaterial to the process that he had qualifications and experience.
PN52
What we say is that there's an attempt to get around the agreement that we, as a professional organisation as well as the tribunal, have an agreement with the company to ensure that the best suitable candidate is selected for the job (indistinct) recruitment process, otherwise it wouldn't be a competitive process of their qualifications and experience. Just to also discount this - in some industries they have what I refer to (indistinct) pick - you know, he's the most senior ranked with us, so they get the job first. We're not about that. We're not about saying to the company, "You must employ Mr Broun or Mr Umansky or anybody. What we're about is applying the agreement proper and we say that the standards in the - taking into account matters not relevant to a matter of qualifications and experience, the decision in this process which is based on a perceived interest in a job sharing position has (indistinct) and as a matter of fact, I believe that Mr Floyd wouldn't have applied for that position if he didn't want a hundred per cent position with the company.
PN53
So the remedy that I guess that we would like to see is either that - it would be one of a few things: that we receive a determination or recommendation from the commission about - if you agreed with the submissions of the institute, that the company should train its managers appropriately on the question of merit selection processes and the application of the (indistinct) that I guess a formal apology is given to Mr Floyd in relation to the failure to apply the agreement and (indistinct) process in selecting the hundred per cent position for this job, and that if the company is willing to provide an undertaking that Mr Floyd - having said all that about (indistinct) selection process, number 1 it's virtually impossible and we have no expectation that the Commissioner would ever order somebody to be out of a job to (indistinct) the successful candidate. In all the circumstances, that Mr Floyd be given first call on any vacancies that come up in the (indistinct) operation in the future. That's probably (indistinct)
PN54
THE COMMISSIONER: All right. Perhaps I should hear from Mr Umansky now.
PN55
MR UMANSKY: Thank you, Commissioner. Just in relation to the remedies first, the company did try to identify what was being sought from the institute and we've really been at a loss. You will note, Commissioner, that the application today does not identify any matter and any recommendation sought whatsoever. This is the first we hear of what is being sought from today's proceedings. In the course of (indistinct) the institute in its application has touched on many issues that we don't agree with, that we refute, and has now again done that on the record: primarily issues going to whether the company has applied the agreement. I was going to address the commission on those (indistinct) evidence that (indistinct) application but we have no (indistinct)
PN56
In regard to the process that was undertaken, that the legal foundation of that process under the enterprise agreement had such (indistinct) Mr Floyd because we do understand that he's aggrieved but that is perhaps not a matter that is the primary subject matter of the application. Lastly (indistinct) that some of these matters that have come up most recently in terms of the recommendations sought. So I don't propose to dwell on my submissions but I need to put on the record in reply a couple of things, Commissioner. Firstly, dealing with the process of a firm advertising and interviewing the candidates (indistinct) job vacancies, including job vacancies for marine engineers, as they arise from time to time, on the Internet - a specific, dedicated Internet site dedicated to jobs. This included the vacancy in question.
PN57
There is also, in addition to that, that the advertisements are circulated at all ports and all vessels within Svitzer's tug boat operations in Australia. Just for the record, the human resources division did issue a notice on 28 December 2012 for a tug engineer job in Darwin with a closing date of 18 January 2013. I don't hear that there's any suggestion that they did not give a reasonable opportunity for Mr Floyd to apply, so I won't dwell on that. But I need to point out that Mr Broun who is here in the conference today is a delegate of Australian Institute of Marine and Power Engineers and I understand (indistinct) that Steve is a national counsellor of the institute (indistinct)
PN58
So I suppose Mr Yates did suggest that there was breach, although he didn't want to press a point about notification of the institute. I suppose we understood it was common knowledge that Svitzer did have this web site that jobs are posted to. It is available to everybody. Coupled with the notifications of the shifts, including to institute representatives being employees of Svitzer, we formed I suppose the understanding that that was ample and constructive and sufficient notice to the institute. Anyway, I understand we're not really here to deal with that.
PN59
The next point which is more important, Commissioner, is that a selection panel was established to assess the applications. That included the port manager, Mike Wildman, and also Mr Murray who is here today, being the Northern Territory marine and technical manager. It also included our HR officer, as has been mentioned, Ms Steel. The panel also included Mr Broun, who is here today again, who did in fact attend several interviews.
PN60
We understand Mr Broun had communicated on various occasions to port management that as far as he was concerned, and perhaps other engineers (indistinct) had formed the view as to who should be the successful candidate on this occasion, namely Mr (indistinct) We understand that Mr Broun essentially hadn't formed a view prior to or - certainly prior to the conclusion of the process. We understand also Mr Broun did not, from his own volition, attend the interview with what turned out to be the successful candidate, Kevin (indistinct) I just want to make clear and put on the record that the panel was established and resulted in the process - involved a (indistinct) process under the enterprise agreement - which I will come to.
PN61
Now, just very quickly dealing with two issues, Commissioner. I need to deal with the submissions that the company has (indistinct) the allegation or the submission that the company has not adhered to the enterprise agreement or (indistinct) suggesting that there has been a breach of the relevant provisions. Mr Yates has taken you to the relevant provisions, being clause 16.1 and 16.2 of the enterprise agreement. Do you have those, sir, in front of you?
PN62
THE COMMISSIONER: What are you referring to, sorry?
PN63
MR UMANSKY: The enterprise agreement and specifically clause 16 is the relevant clause.
PN64
THE COMMISSIONER: Yes, I've got that.
PN65
MR UMANSKY: Okay. Now, just dealing with 16.2 first (indistinct) certification. Just to read that first subparagraph on the record, if I may. That reads as follows:
PN66
Svitzer agrees to engage permanent engineer employees who posses either a class I, class II or class III certificate of competency as required to meet the needs of the business. In the case of a holder of a class III certificate of competency, that person will also hold a trade qualification as either a fitter and turner, diesel fitter, electrical fitter, or other relevant or equivalent engineer trade.
PN67
So the yellow subclauses are not (indistinct) Insofar as it's being alleged by the institute, Commissioner, that the company did not apply clause 16.2 or breached 16.2, you will note that clause 16.2 is essentially a provision that deals with what is the minimum qualification that needs to be met for a candidate.
PN68
MR YATES: Can I just intervene just briefly? 16.2 is in contention, certainly (indistinct) I did read the application earlier today and (indistinct) earlier this morning is that 16.2 - we are definite about that. I would just like to point out that Mr Floyd actually holds a class III certificate in competency as well as a class II certificate.
PN69
MR UMANSKY: I suppose I was really dealing with (indistinct) application dealing with 16.2 and being to the extent that it was supporting the argument going to merit or somehow implying - if it's being suggested that it's implied that there should be a priority given to a higher certificate over a lower certificate - if you wish to express it that way - then clause 16.2 does not do that. I go along as far as saying and noting that a couple of the candidates that were not shortlisted in fact, I am instructed, have an engineer class 1 certificate and that certainly some other engineer class II certificate holders were not shortlisted either.
PN70
MR YATES: I don't think (indistinct)
PN71
MR UMANSKY: So we can then move on I think from that clause 16.2.
PN72
MR YATES: (indistinct) Commissioner, the particular operation of that 16.2 is (indistinct) qualifications are - we're not saying that the company has to employ the class I, class II and class III in that order (indistinct) because in different courts around Australia, depending on the area of operation - for example, in Cairns you might have a tug there that might be over 3000 kilowatts, for example, but because of state regulation applying to that tug we could - sorry, it would automatically require a class I certificate to operate that tug out of port but because of the area of operation the state authority requires a class III certificate to operate the tug. So, sir, that's the reason why that clause is stated in that way. It's not directing an order of pick because of the agreement in relation to the competitive nature of the selection process based on merit qualifications and experience. That's what (indistinct)
PN73
It's just simply a guidance for (indistinct) Svitzer that we might (indistinct) because there might be a 3000-kilowatt tug operating whilst (indistinct) Australian crew with a class III or class I certificate onboard. They might take that and (indistinct) example just to demonstrate it - they might take that and operate it on a dam somewhere and that might only require them to be III, but you've still got the same complex plant equipment and the same conditions that go with (indistinct) maritime industry, and particularly the tug boat operation. We see that for members employed under our agreement, that those are minimum standards that should apply to tug boats around Australia and that's the reason why that clause exists (indistinct)
PN74
That is (indistinct) 16.1 dot point 4 (indistinct) but 16.1.1 - sorry, dot point 4 is where the Svitzer should (indistinct) decision. That's what we say is an application (indistinct) recruitment process. (indistinct) class I, class II (indistinct) because it is such a scarce certificate these days. Sorry, Commissioner, I will let Mr Umansky continue.
PN75
MR UMANSKY: Commissioner, I now want to move to the terms of the - the major issue as indicated, namely, the ultimate selection if you like. With 16.1.1 of the enterprise agreement, it initially deals with advertising and screening and interviewing applicants. I've dealt with that already. We say, sir, that the process undertaken has been in compliance with the enterprise agreement. Now, we then obviously go to the issue of whether the fourth bullet point was applied correctly, and that is that Svitzer has an obligation to recruit permanent engineers and choose the successful applicant "on the basis of merit, qualifications and experience", and that's in connection with a certain bullet point which, as Mr Yates has mentioned, notes that a decision of the management in ultimately selecting the successful applicant will be final.
PN76
But, sir, we say that the decision that clearly out of the selection forum and ultimately was made by management was in fact a decision based on merit, qualifications and experience. The successful candidate has and was found to have the necessary merit qualifications and experience that the company was looking for. Now, the clause itself, sir - and we need to note - does not necessarily compartmentalise the sort of weighting or the various factors that need to be taken individually or wholly. It really is a guidance of the relevant factors that need to be taken into account.
PN77
But ultimately whilst those factors are taken into account, there are issues that management traditionally and legally has a right to appoint what it considers to be the most suitable candidate in relation to it to close (indistinct) together. We say that there was no irrelevant consideration that went to choose the successful applicant and members who brought us here to verify management's decision that Mr Broun, another member of the institute, was the preferred candidate. I don't think that the commission should store any weight at all in Mr Wildman not being available today and (indistinct) but he was not available as early as last week. He had asked Mr Murray, who was involved in the selection process, to be here to answer any questions from the commission.
PN78
Just before I get into the relief issue, the relief sought from the commission - just very briefly to touch on the situation of Mr Floyd, we did note in the correspondence and the port manager has communicated to Mr Floyd that he's a well regarded employee. Mr Floyd is currently engaged under a contract for a specific period of time or task, until January 2014, as already mentioned. He's a well qualified employee and a valued employee. So we can understand that there is disappointment and there is perhaps in his mind some frustration that his grievances have not been sufficiently taken into account.
PN79
I should say, Commissioner, that early on in this process Mr Floyd did contact me personally to indicate whether the company would take up, if you like, a bitter pill with his concerns or grievance and at that time I was also in contact with the institute, who had indicated that they were looking potentially at referring the matter to the commission as a dispute. What I did say to Mr Floyd was to say, "Look, how can Svitzer understand how you want to progress your grievance? If it's a matter of your individual grievance and whether the company has followed process or policy, or whatever, we can look at that individually. If, on the other hand, you want to proceed to deal with the matter through the institute, then the institute is able to represent you of course." So on the basis that Mr Floyd chose to refer the matter to the institute and ultimately the matter has come before you, that that was the reason why the matter has not progressed further with Mr Floyd initially and we're now dealing with a dispute before you.
PN80
Sir, we do say that the role - Mr Yates did mention that there were some considerations or there is a factor that was part of the process considered that he believes was not a correct consideration of the matter, namely, the issue of Mr Floyd's previous expressions of interest in job sharing or relief work or what have you. Sir, we don't accept that that is not a factor that is able to be considered by a company in going to the merits of the selection process. Clearly though, Mr Floyd did indicate that he was interested in the full-time position and his application was made on that basis. Certainly there were statements made to the company along the way that initially his primary interest was in relation to job sharing or casual engagement. Ultimately that was not a determining factor we say, Commissioner, but it certainly was not, in our submission, a factor that could not be taken into account.
PN81
For the record, I also need to say that in regard to the submission we don't believe that Mr Floyd has been disadvantaged. Mr Floyd is a currently an employee and will remain an employee until his contract comes to an end in January 2014. Certainly Mr Floyd is able to apply for any vacancies that arise between now and then his applications will be considered on their merits as well. Now, that's now coming to the relief question, Commissioner, if I may, and if I said the institute has put three issues for consideration today, namely, (1) that the management be sufficiently trained in the process. We say, sir, that management is conversant with the provisions of the enterprise agreement and they are all to follow those provisions. Training is obviously always something that is useful and we are now in the process of finalising a new enterprise agreement for the next three years and whether you call it training or briefing or instruction, there are some changes to the recruitment process that will arise out of the new agreement that will require formal briefing instruction, what have you.
PN82
We the parties, the institute and the company, have yet to form a view as to how the implementation (indistinct) of the new enterprise agreement will be conducted. We (indistinct) still able to work through that process. That enterprise agreement has not been voted on as yet, Commissioner. We don't want to get ahead of ourselves but certainly negotiations in that respect have concluded. As I said, there were some changes to the process. So (indistinct) necessary to deal with the crux of this issue but issues around (indistinct) need to be communicated to the workforce as well as the management.
PN83
The second (indistinct) Mr Yates has mentioned the potential for management to make a formal apology to Mr Floyd. Certainly the port manager, Mr Wildman, has been at pains to ensure that the decision to appoint Mr Broun, another candidate, was communicated to Mr Floyd before the formal announcement. So as soon as the panel's preferred candidate was chosen as the successful candidate, before that successful candidate was notified, Mr Wildman personally informed Mr Floyd that that had been the decision of the company. We don't understand that there is any animosity or any issues between the port manager and Mr Floyd. It's a small port and as I said, Mr Floyd is a well regarded employee. I don't know that there is a (indistinct) issue, eventually work through (indistinct) before we continue on. The company stands by its decision (indistinct) believes that the preferred candidate was chosen and it does stand by that. Obviously we'd like to ensure that Mr Floyd is able to accept that and continue in employment and that this matter is put behind us.
PN84
The third issue, Commissioner, as I understand, is what's being sought here is for the company to provide an undertaking that the first full-time vacancies in the future will be - that Mr Floyd will be a preferred candidate. We can't agree to that, Commissioner, because that effectively is encroaching on the established process that exists for selecting candidates and in the past issues of preference - whether the recent negotiations having dealt with this part of the process - but we would not want to see something that is determined or agreed upon that then cuts across the established process and the established theory for applying for vacancies.
PN85
I'm open to hear, Commissioner, and I was going to make submissions along these lines, but I do hope that the institute is not seeking to overturn the appointment and obviously that would be of considerable difficulty for the company, given its contractual arrangements with Mr Broun and also (indistinct) Mr Broun is happy to continue in his employment and he's doing well and that's good. I would not want to see a situation where the Commissioner was asked to come in and make a determination or a recommendation, sir, that somehow then it would cut across the (indistinct) or the process in the enterprise agreements.
PN86
I'm happy to explore Mr Floyd's own situation further with the port manager and with (indistinct) manager off the record and work through these grievances but insofar as those submissions are put on the record, sir, we reiterate that there is no basis for a determination in this case and we say there is no breach of the relevant provisions of the enterprise agreement and the matter (indistinct) If Greg wants to proceed into private conference, I'm not opposed but insofar as a final outcome is concerned, we would ask you to, after today, set the matter aside, with respect. If the commission pleases.
PN87
THE COMMISSIONER: I think I have an alternative suggestion that might represent, hopefully, a way forward that both parties can live with. I suppose the thing that strikes me about this is the communications signed by the various other members of the crew in Darwin. It's obviously not just an issue that represents disappointment on the part of Mr Floyd but has raised some broader concern amongst other of the company's employees. That's something that I think does require some need to address. I would think that the next logical step in this process and importantly to try and ensure that those that signed the letter - which it's undated but I'm sure you understand the correspondence that I'm talking about here - have confidence in the recruitment process of the employer. I think it would be appropriate for there to be some review undertaken of the particular circumstances of the recruitment process which led to Mr Floyd being unsuccessful.
PN88
Now, this review is not aimed at changing the decision, let's make that plain. But instead the review would be aimed at trying to identify improvements that may be adopted for the future and thereby reinforce that the application of clause 16.1 in the agreement is intended to provide and does provide that all recruitment is based on a transparent and fair and just process which leads to an objective and justifiable outcome. What all that means is that I think it would be appropriate for there to be a review so that all of the people that have some concern about this see some activity being undertaken to address the concerns.
PN89
For instance, it might be that when one looks at this review the sort of suggestions or recommendations that might emerge from it could be that in that part of 16.1 which deals with notification to the institute, that there's some clarification made as to how that's going to be done. Now, that's not a big issue here because no-one is saying that Mr Floyd didn't know about it. He obviously did because he applied for it. But there would be an improvement, I would think, if there was some clarification as to what that advice to the institute was actually going to be in the formal sense. Was it going to be direct communication to the head office or the local office, or whatever it might be? Now, that's just an example of how you might get from this review a better process with a bit more detail to it.
PN90
There's not a component that might ultimately be identified if this review is undertaken. For instance, there might be some consideration that might be given to where the decision of management of course is final but a process of appeal might be undertaken where the appeal would permit some sort of contest to the anticipated decision before finalised. Now, this was just touched upon a minute ago when Mr Umansky mentioned that Mr Floyd was advised that he was unsuccessful before Mr Broun was apparently told he was successful. I'm not saying that this is necessarily something that could emerge from the review but there might be something like an appeal that could be enacted very quickly and swiftly before management's final decision was confirmed. That could be a big improvement for the future.
PN91
So what I'm suggesting here is that this review be undertaken with the aim of trying to see whether some improved provisions which are sort of - and elaborate upon what's in clause 16.1 might be developed and agreed upon. You don't have to necessarily put it in your enterprise agreement; it might be by way of a reference to a separate document which just clarifies, "Here are some of the detailed terms that will be adopted in respect of the recruitment process." Now, I think that could only be a benefit to everyone if that was an outcome, if there were a few key provisions that were developed in such a document and then were relied upon for the future. That's the suggestion that I'm going to make to the parties and that it might be that it really is for the company to consider that suggestion to see whether it's prepared to undertake a review in the terms that I've suggested, with the objectives that I've also suggested.
PN92
I suppose that if that review did identify an error - now, I'm not saying it would - in what occurred in this particular circumstance, then that's not going to change the outcome but perhaps an acknowledgment of an error. If it did identify one, it would go a long way to addressing the concerns of Mr Floyd in particular. But I'm not so interested in going backwards and identifying problems but more importantly going forward and trying to work out a better way for the future to avoid any repetition of any problems and I think a review in the terms that I've suggested might do that.
PN93
So what I would urge here is that perhaps, Mr Umansky, you might be prepared to discuss this with others in the company and consider whether or not my suggestion should be in fact adopted.
PN94
MR UMANSKY: Yes, Commissioner. Certainly, I'm open to (indistinct) consideration to your suggestion. I've been very attentively noting that the sort of idea that you had in mind in relation to the review - I agree that the focus should be on the future and ensuring that the process is as tight and - as you say (indistinct) just and fair and for the best outcome for all. Certainly - - -
PN95
THE COMMISSIONER: See, I'd want to make sure - sorry to interrupt you. I'm concerned that this is a broader question than just simply the disappointment of one individual.
PN96
MR UMANSKY: Yes.
PN97
THE COMMISSIONER: But what we need here is to ensure that the confidence of all of the employees, the relevant employees, is maintained in the process.
PN98
MR UMANSKY: Yes. I suppose that's got two levels: one is insofar as the employees are signed (indistinct) that is a local issue (indistinct) and we understand that's the reason why you've formed the view; and secondly, I need (indistinct) there are a lot of ethical provisions that apply to Svitzer's recruitment process around the country and that is the reason why we will take up your suggestion to refer the matter to (indistinct) company because it has a national dimension to it.
PN99
MR YATES: Just on the subject of a review, Commissioner, the institute can see some utility with that and agrees with your comments. However, if the review was to be undertaken by the company internally, we believe that they can be more useful to either conduct (indistinct) course and conduct a review (indistinct) circumstance to identify the clause that in our submission has occurred in this process (indistinct) and whether you were referring to a review by a fellow Commissioner or whether you were talking about engaging a legal (indistinct) consultant, for example, or the company using a firm of consultants who (indistinct) particular grim task. We certainly have some suggestions, if that's the case.
PN100
THE COMMISSIONER: I didn't have a particular view about who was going to undertake the review, other than it wouldn't be me.
PN101
MR YATES: Thank you, Commissioner. Your Honour has - - -
PN102
THE COMMISSIONER: This is really a matter for I think for Mr Umansky to take back to the various officers in the company. I think picking up your suggestion, Mr Yates, is fine. That can be an added consideration. It would enhance the review if it was done perhaps by some sort of independent consultant but I am certainly not suggesting that it should - I'm not insisting upon that, I guess is what I'm saying. But I think to suggest - - -
PN103
MR UMANSKY: I suppose - sorry, Commissioner. I was going to say some of the matters that Greg just touched on perhaps go to the subject matter of (indistinct) I mean, I take onboard his suggestions. We don't believe necessarily that we should jump to bringing in an independent person but I suppose that is a matter that when we inevitably consult with the institute about how we see the - if we do in fact (indistinct) and then we do engage (indistinct) with the institute, that we would take onboard his recommendation. Ultimately, what we're about is about a proper process.
PN104
THE COMMISSIONER: Yes.
PN105
MR UMANSKY: And that's a means to an end for this, but I'm not saying here we want to jump to a full-blown formal review but I'm suggesting that (indistinct) and for the reasons that you've outlined, you report in particular that you think you ought be given serious consideration and then what kind of recommendation be had with the institute after that is decided.
PN106
MR YATES: Can I clarify something, just a (indistinct) just clarify something. The institute's view is that the review should focus on the process and the decision-making processes that were undertaken in relation to the selection position order but if I may comment - and I probably shouldn't say this before (indistinct) suggestion about some independent (indistinct) is that we wouldn't find ourselves here if the matter wasn't raised with at least three levels of management within the company and given that, we've sought the assistance of the Fair Work Commission. We would suggest that (indistinct) management might not get an independent review (indistinct) this selection process was carried out to identify the potential future consideration (indistinct)
PN107
So therefore from the institute's point of view we would make the suggestion that the appropriate way to deal with that would be to get the independent consultants in to deal with (indistinct) I'm sure of my colleagues and people I've worked with in the past (indistinct) suggestion that a consultant hold another review, they would probably start laughing at me. But certainly there are some specialist consultants that I'm aware of that have both the diversity of skills and the HR practice skills that would be necessary to complete such a brief in the circumstance.
PN108
THE COMMISSIONER: I've suggested that the company give consideration to the review. The institute has suggested that if it finds favour with the company, that it should be undertaken by an independent consultant. I think that's just a matter for the company to further consider. It might decide that it doesn't want to pick up on my suggestion and not do a review at all; I don't know. But there are a few steps that have to be taken in order to find out where this is going to go. What I'm suggesting here is that logically the various responsible managers of the company need to give some consideration to my suggestion. If it finds favour, then the next logical issue is, if there's going to be a review, do we conduct it ourselves or do we get, at the institute's suggestion, an independent body or person to do that? But we can't get too far advanced in all of this. We have to know that there's a review being conducted first.
PN109
So what I'm going to suggest is we simply allow for my suggestion to be digested, considered by the company, and then we see whether, after that, there is a need to make this secondary consideration as to who might conduct the review. Mr Umansky, what period of time would be required for the company to be able to give a response to my suggestion?
PN110
MR UMANSKY: I think in the order, Commissioner, of two to three weeks.
PN111
THE COMMISSIONER: Two weeks.
PN112
MR UMANSKY: (indistinct) Yes.
PN113
THE COMMISSIONER: All right. If it can be done sooner, so be it. But let's just put some time frames around all of this so that we know where we're going. In two weeks' time, it will be at 24 April, the day before Anzac Day. Perhaps that's an appropriate time. If we anticipate that the company might formalise its position in respect of the suggestion that I've made during the proceedings today by no later than 24 April, we will then be in a position to see what happens next. The institute can consider that communication and then it will be up to the institute to decide whether or not it's content with what the company has decided or there are further difficulties. So I think at some point in the following week it will be up to the institute to advise my office as to the status of the matter and particularly as to whether or not any further proceedings are sought. So that would be a week finishing Friday, 3 May.
PN114
The obligation on you then, Mr Yates, would be to advise by no later than 3 May as to the status of the matter and whether or not any further proceedings are sought.
PN115
MR YATES: Yes, sir.
PN116
THE COMMISSIONER: All right. I think that's the best way to try and make some progress in all of this. It's not an easy situation but something that hopefully might see some progress in the future. Is there any clarification of any of that in terms of the time frame that we've just set?
PN117
MR YATES: Not from the institute. Thank you, Commissioner.
PN118
THE COMMISSIONER: All right.
PN119
MR UMANSKY: Sir, nothing in relation to the process; I understood, thank you.
PN120
THE COMMISSIONER: All right. Let's follow that and see where it takes us. On that basis, if there's nothing further, the proceedings now stand adjourned.
PN121
MR YATES: Thank you.
PN122
MR UMANSKY: Thank you, Commissioner.
<ADJOURNED INDEFINITELY [11.34AM]
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