Commissioner notes RTBU mischaracterised the dispute by referencing it to a section of the enterprise agreement
The Fair Work Commission (FWC) states that “there will always be winners and losers” in a job selection process during an organisational restructure.
The comment comes in response to a dispute resolution application by the Australian Rail, Tram and Bus Industry Union (RTBU), which claimed that Asciano subsidiary Pacific National’s restructure has a direct impact on 10 employees, four of whom would be made redundant at the end of the year.
The issue arose when Pacific National’s conducted an organisational restructure of its Hunter Valley operations that affected 10 roles, out of which of five were Greta Train Coordinator roles and five Integrated Live Run Coordinator or ‘Broadmeadow’ roles.
The company had planned to dissolve these 10 roles and replace them with 10 Hunter Area Coordinator roles and as a result made the employees undergo a competitive selection process that included an interview, a group activity, and a reference check.
Four of these employees were unsuccessful but the union demanded that Pacific National fill all new roles by “direct appointment in accordance with cl C2.4 of the Agreement”.
However, the company stated that the appointment of four new candidates was based on merit alone.
The commission agreed with the company’s action stating:
“What was the respondent to do if it had more applicants than the number of new roles available? The only sensible and responsible response was to undertake a selection process which was transparent and objective. In these circumstances, the regrettable reality is that there will always be winners and losers.”
Handing out the recommendation, FWC deputy president PJ Sams notes that the union’s interpretation of the enterprise agreement was “misplaced”, adding: “there is no doubt that cl C2.4 is a discrete provision dealing with the circumstances of an organisational restructure — although I do not accept it is a limited restructure of the 10 affected roles at Greta and Broadmeadow”.
“However, a critical caveat to the activation of the clause is that the affected employees fulfil the criteria set out in the position description.
FWC states that it does not accept the union’s submission that all of the affected employees met the required selection criteria.
The commission also stated that it would be “unfair to the successful employees (some, or all whom may be Union members) to unravel the entire selection process and effectively overturn the outcomes of the selection process”, adding, “there is no industrial or merit justification for doing so”.
FWC notes that since the redundancy will not be effective before January 1 next year, the four candidates may be able to secure “alternative redeployment” opportunity within the company.
The commission also dismissed opportunity for further consideration in the matter through another recommendation by the union.