Recruitment Process Changes Require Consultation

United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2016] FWCFB 2894 (12 May 2016)

Many employers would not consider consulting their employees if there was a need to alter recruitment processes. But according to a recent Fair Work Commission full bench, that could be a mistake. An employer who wanted to change recruitment processes and criteria has been obliged to consult with their employees’ union under its enterprise agreement consultation requirements. And those provisions are not unusual in their scope or meaning.

The FWC decision arose out of a situation where an employer had decided to reduce the entry point testing scores for potential recruits, remove the opportunity for applicants to have multiple attempts at being recruited and abandon a strict order of merit when filling vacancies. The latter was part of an attempt to lift female participation in its workforce.

The employer argued that these were matters to do with new recruits to the organisation and none of the existing employees, or their union’s business. Specifically the employer said these were not issues covered by the enterprise agreement’s dispute resolution provisions.

But the full bench disagreed, finding that the recruitment procedures were “matters pertaining to the employment relationship”. It found that because the changes to the recruitment procedures could impact on the existing employees due to issues about competence and reliability, that this meant the existing employees’ conditions of employment, including their health and safety, could be affected.

The decision effectively says that if the relevant dispute resolution clause uses the expression “matters pertaining to the employment” then that has a meaning derived from a long line of seminal cases with the consequence that it is to be read very broadly. Notwithstanding that, it could still be possible for the FWC, or the court, to find that even where those words are not present, if the proposed changes to recruitment procedures or standards could impact in any meaningful way on existing employees, then consultation must take place.

Despite the gender influence on one of the proposed changes, the full bench declined to intervene in relation to the employer’s attempts to lift female participation, saying that aspect of the process had nothing to do with the employment criteria when actual selection occurred.