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AMIEU v Woolworths Ltd

AMIEU v Woolworths Ltd

Case [2009] FWA 849 16 November 2009

Jurisdiction

Collective Bargaining

Good Faith Bargaining

Statutory Interpretation

Employment & Labour Law

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Note: An appeal pursuant to s.604 (C2009/11067) was lodged against this decision - refer to Full Bench decision dated 3 March 2010 [[2010] FWAFB 1625] for result of appeal.

[2009] FWA 849

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.238 - Application for a scope order

The Australasian Meat Industry Employees Union
v
Woolworths Limited
(B2009/10670)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 16 NOVEMBER 2009

Summary: scope order application to excise meat unit employees from proposed national enterprise agreement – meaning of “relevant” bargaining representative - conduct prior to 1 July 2009 and transitional provisions – whether employers required to disclose bargaining representatives identity – good faith bargaining where multiple bargaining representatives – whether composite bargaining required - statutory requirement under s.228(1)(f) cannot be waived.

[1] This matter concerns an application made by the Australasian Meat Industry Employees Union (“the AMIEU”) under s.238 of the Fair Work Act 2009 (“the FW Act”) for scope orders.

[2] The application arises from concerns that the AMIEU holds about the efficiency or fairness (and principally the fairness) of bargaining between itself, as a bargaining representative, and other bargaining representatives Woolworths 1, the Shop, Distributive and Allied Employees Association (“the SDA”) and the Australian Workers' Union of Employees, Queensland (“the AWU”) in relation to the proposed national enterprise agreement (which is further described below). The AWU, I should add, adopted the submissions of the SDA in relation to this matter, and a reference to the SDA, unless otherwise indicated, should be read as being endorsed by the AWU.

[3] The orders the AMIEU seeks are orders that will excise from the comprehensive coverage of the proposed national enterprise agreement for Woolworths’ supermarkets non-salaried employees those employees who work in meat units in Woolworths’ supermarkets.

[4] The application was made within a particular context, which has an historical dimension to it. It is important to set out this context, as it emerges from the evidence, at the outset as it is relevant to the determination to be made.

[5] The AMIEU is of the view that Woolworths (and its subsidiary companies 2), since the 1990s, has sought to make various State-level agreements (particularly with reference to Queensland, Victoria, New South Wales and South Australia) with the SDA and to a lesser extent with the AWU through negotiations which have often excluded or attempted to exclude or otherwise marginalize the status of the AMIEU, despite that union having members to be covered by the agreements, in each instance.3

[6] The AMIEU gave evidence that nationally it represents some 1021 members in meat units in Woolworths’ supermarkets. 4 The AMIEU membership across Woolworths is relatively small compared to that of that of the SDA.

[7] The AMIEU believes the current ratio of SDA members to AMIEU members employed in Woolworths’ supermarkets to be in the order of 18:1. 5 The total number of non-salaried employees employed across the Woolworths group of companies in its supermarket operations in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AMIEU v Woolworths Ltd

Details

AGLC: The Australasian Meat Industry Employees Union v Woolworths Limited [2009] FWA 849
Case: [2009] FWA 849
Decision Date: 16 NOVEMBER 2009

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to exclude meat unit employees from a proposed national enterprise agreement between the AMWU and Woolworths Limited, a major Australian supermarket chain. The AMWU applied for a scope order under the Fair Work Act 2009, seeking to exclude these employees from the agreement's coverage. The court had to determine the scope of the term "relevant" bargaining representative, the obligations of employers concerning the disclosure of bargaining representatives, the conduct of good faith bargaining in the presence of multiple bargaining representatives, and whether a composite bargaining arrangement was necessary. Additionally, the court examined whether the statutory requirement under section 228(1)(f) could be waived.

The primary issues before the court were whether the AMWU was a relevant bargaining representative for the meat unit employees, the obligations of Woolworths regarding the disclosure of bargaining representatives, and whether good faith bargaining was conducted in the presence of multiple bargaining representatives. The court also assessed if a composite bargaining arrangement was necessary and whether the statutory requirement under section 228(1)(f) of the Fair Work Act could be waived. The court had to interpret the legislation to determine the scope of the bargaining representative's role and the obligations of both parties under the Fair Work Act.

The court determined that the AMWU was not a relevant bargaining representative for the meat unit employees as it had not been recognised as such prior to 1 July 2009. Consequently, the AMWU's application for a scope order was dismissed. The court found that Woolworths was not required to disclose the identity of bargaining representatives under the transitional provisions of the Fair Work Act. Regarding good faith bargaining, the court ruled that where multiple bargaining representatives exist, each party must bargain in good faith with all representatives. The court concluded that the statutory requirement under section 228(1)(f) could not be waived, as it is a fundamental aspect of the legislative framework aimed at ensuring fair and effective bargaining.

The final orders of the court were that the AMWU's application for a scope order be dismissed and that Woolworths was not required to disclose the identity of bargaining representatives under the transitional provisions. The court emphasised the importance of adhering to the statutory requirements and conducting good faith bargaining in the presence of multiple bargaining representatives.

Orders