AMIEU v Woolworths Ltd

[2009] FWA 849

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 Australia amounts to 97,000 – 98,000 employees.6 Further evidence as to the relative membership (between the AMIEU and SDA) is discussed below.

[8] While the AMIEU gave evidence that it had been marginalised by the bargaining practices of the SDA and Woolworths in the past, it also gave evidence that this conduct was not in breach of any existing laws. 7

[9] In the current context, Woolworths since April or May of 2009 has sought, so the AMIEU claims, to make a national agreement (a so-called “four walls” agreement) with the SDA, with the effect of covering all employees in Woolworths’ supermarkets across Australia, and at the exclusion of the AMIEU. 8

[10] The AMIEU contended that the National Secretary of the SDA, Mr Joe de Bruyn indicated to it in conversation at the ACTU National Congress held in Brisbane between 2-4 June 2009 that such negotiations were afoot with Woolworths, but had not been concluded at that time. 9

[11] The AMIEU was of the view that a “four walls” agreement had been an aspiration of the SDA for some years. 10

[12] The AMIEU contended further that Woolworths had posted notices of representational rights on 14 July 2009. The notices indicated 11 that it was seeking a national agreement covering all non-salaried employees in its supermarkets, including employees who work in meat units, an area in which the AMIEU has coverage by virtue of its rules.

[13] The AMIEU was of the view that because it currently has members who are subject to a 2008 agreement with Woolworths in Victoria, for which the nominal expiry date is not reached until September 2011, those employees would be disadvantaged by the proposed national “four walls” agreement:

“Should this proposed agreement become certified in the near future, it will have the effect of removing any legitimate statutory right AMIEU members bound by the 2008 agreement to take protected industrial action to advance claims against Woolworths in these negotiations.

[…]

This may result in “significant resentment, discontent and potential industrial disruption [...]” 12

[14] The AMIEU also claimed that it had exercised its rights under previous legislation to avert the conduct referred to above but had been unsuccessful in most instances. 13

[15] The situation the AMIEU now finds itself in, from its perspective, is a natural culmination or evolution of the courses of conduct which it has observed since the 1990s. That is, following the notice of representational rights issued by Woolworths on 14 July 2009 14, the AMIEU indicated by correspondence to Woolworths on 21 July 2009 that it was a bargaining representative in respect of the proposed agreement, and that it intended to exercise its rights in this regard.15

[16] Woolworths first contacted the AMIEU on 26 August 2009 and thereafter arranged a meeting for 4 September 2009. 16 On that same day, a copy of the proposed national agreement was provided to the AMIEU.17

[17] The AMIEU claims that Woolworths conceded at the meeting of 4 September 2009 that the draft agreement referred to above in effect was an in principle agreement that had been negotiated with the SDA prior to 30 June 2009. It was further conceded that the terms and conditions of the in principle agreement covered the meat unit employees and the SDA had provided input in respect of these employees as well. 18

[18] At this meeting Woolworths and the AMIEU came to an impasse on the coverage of any proposed agreement. The AMIEU argued as a “fundamental” position that it sought a “separate agreement” that covered meat units only. Woolworths for its part sought an integrated, “four walls” national agreement. 19

What, specifically, is the unfairness within the bargaining process of which the AMIEU complains, and which forms its requisite concerns for purposes of this application?

[19] The AMIEU’s perceived concerns, as drawn from the notice of 8 September 2009 20, appear to fall into the following categories:

• the in principle agreement that has been put to it was derived from negotiations before 30 June 2009 which were conducted in a clandestine manner with the SDA;

• the terms and conditions of employment for meat unit employees has declined since the SDA officials have had exclusive conduct of negotiations as Woolworths’ “preferred negotiating party”;

• the SDA has purported to represent the interests of meat employees in relation to those negotiations, at the expense of the AMIEU;

• that “[f]rom a practical point of view [the AMIEU believed] there is no reason whatsoever for Woolworths to genuinely consider any proposals that the AMIEU may put as the deal has been done with the SDA”;

• anticipating Woolworths’ responses, the AMIEU claimed it would not be creditable for Woolworths to claim (prospectively it appears) that it was genuinely seeking to reach an agreement with the AMIEU now, when it had failed to advise of negotiations for an agreement prior to 30 June 2009:

“[...] it is no answer to the requirement to bargain in good faith to assert that the in principle agreement was reached prior to 30 June 2009. The in principle agreement is the product of bargaining other than in good faith. Going through the motions under a pretext that you are now bargaining in good faith with the AMIEU post 30 June 2009 is merely an artifice or a stratagem.”

• the SDA had drawn an inference based on Woolworths’ prior conduct that the in principle agreement was reached prior to 30 June 2009 in order to avoid the commencement of the FW Act (which it failed to achieve, it would appear); and

• the AMIEU members who are employed in meat units in Tasmania and Victoria are currently covered by workplace agreements that do not expire until 9 November 2010 and 26 September 2011 (respectively). If such employees are not satisfied with the in principal agreement, they are not able to exercise a right to take protected industrial action. Similar situations arise in respect of employees generally (but including members of the AMIEU) who are covered by “four walls” agreements in various states (including Queensland, NSW and the ACT).

[20] The AMIEU stated in its notice of 8 September 2009:

“The AMIEU reiterates what was conveyed to you verbally on 4 September 2009. We hold a firm view that a separate agreement covering meat unit employees should be negotiated.”  21

[21] Despite these concerns, the AMIEU also stated in its correspondence of 8 September 2009 that Woolworths had “breached no existing laws” in so conducting itself in relation to past agreements.

[22] Woolworths gave evidence that while its supermarkets comprise of a number of specialized departments, such as meat, liquor, long life, bakeries and so forth, there was, to some measure at least, an increasing degree of mobility among employees generally, and some reasonable basis to a claim that employees in supermarkets had much in common with one another.

[23] The thrust of this evidence was that meat departments were not any more operationally distinctive than other areas, such as the delicatessens or bakery departments. 22

[24] Those employees engaged in shop assistant-type classifications across the departments were exposed to some measure of mobility across departments. The gist of this evidence in this regard was that increasingly centralized and automated processes are causing stronger alignments between employees (particularly between shop assistants-type classifications in departments such as seafood and meat) who previously might have performed duties within specialized departments. 23 Despite this, there were some inherent limitations on mobility where employees were required to work in hazardous environments (such as with ovens and saws).24

[25] Other employees moved across departments owing to internal recruitments and transfers (both intra and inter-state), and by so doing followed their interests and\or their career paths. 25

[26] As employees are required to work within the supermarket environment they routinely interact with one another irrespective of their specialization, share common facilities and are subject to the same rostering principles and cycles (though roster hours and shifts may well vary between departments because of staffing levels and so forth). 26

[27] Woolworths also gave evidence that meat units across its supermarkets were not uniformly areas of outstandingly high AMIEU membership.

[28] To this end, Woolworths gave evidence that it employed some 4,901 non-salaried employees in supermarket meat units. This was about 5% of the total number of employees. 27

[29] On the material provided by Woolworths, some 2,524 of these employees were provided payroll deduction of union dues facilities. Of these, 1,671 made deductions for purposes for purposes of membership of the SDA (representing some 34% of the non-salaried employees in the meat units), and 853 made deductions for purposes of membership of the AMIEU (representing some 17.4% of the non-salaried employees in the meat units). 28 It was conceded that the levels of union membership might be slightly higher than this in reality.29

[30] There is not a great gulf between the evidence of Woolworths and the AMIEU in this regard (which was set out above). The AMIEU gave evidence that it was a bargaining representative for some 1,021 of the 4,901 (approximately 20%) non-salaried employees employed in Woolworth’s meat units. 30

[31] It would also appear that there has been considerable momentum, since the late 1990s, towards national conformity in terms and conditions of employment which reflected the centralization of operations across the business generally. 31

[32] This period saw the various State-based operations (with some limited exceptions) being consolidated into the main listed company, Woolworths Ltd (on 30 June 2002). 32

[33] As the company’s operating architecture was simplified and centralized, and made more efficient, as it was claimed, so Woolworths Ltd sought to consolidate its non-salaried staff employment arrangements into a single “four walls” agreement in each State and Territory. 33

[34] Currently, only Victoria and South Australia have not introduced “four walls” agreements (to which reference was made earlier). In both these States, Woolworths has retained agreements with the AMIEU in respect of meat units in those states.

[35] Woolworths gave evidence that despite the consolidation of its employment arrangements, it has provided for choice of union representation on the part of its employees, including by way of the dispute resolution procedures under the various “four walls” agreements. 34

[36] Woolworths gave evidence that it has achieved very strong support for each of its “four walls” agreements in the various States, with most ballots resulting in favourable support routinely in the range of 80% - 90% of the employees who cast a vote. 35

[37] The current momentum towards a single, national “four walls” agreement is a further evolutionary step on from the State-based consolidation and harmonization trend broadly discussed above through the evidence of Woolworths. In this next step, from which the AMIEU seeks to excise the meat units nationally, Woolworths proposes to remove State-based disparities in base wage earnings, penalties and the times at which they apply, hours, personal leave and other forms of permissible leave, and pay increase processing timetables. 36

[38] The State-based agreements, so it is said, are also drafted in inconsistent terms about the same matters, all of which adds to the administrative and legal burdens of managing such a differentiated employment model. 37

[39] Woolworths also argued that the national, consolidated agreement now being sought is consistent with the impending introduction of the General Retail Award 2010. This award covers all employees in supermarkets, including those in meat units. The General Retail Award reads relevantly:

“3.1 In this award, unless the contrary intention appears:

[…]

general retail industry means the sale or hire of goods or services to final consumers for personal or household consumption including:

• food retailing, supermarkets, grocery stores;

[…]

but does not include:

[…]

• stand-alone butcher shops […]”

[40] I note in passing that the coverage of the pending Meat Industry Award is expressed in the following terms:

“3.1 In this award, unless the contrary intention appears:

[…]

meat manufacturing establishment means an establishment wholly or predominately concerned with the manufacturing or processing of fresh meat into any form of edible manufactured or processed meat, meat products, smallgoods, ham, bacon, or similar products in which meat is a substantial ingredient, including any related activities such as retail and/or wholesale sales, and killing, dressing, boning, slicing, preparation and/or packing of fresh meat, where such activities are conducted at any place as an ancillary part of the manufacturing or processing business

meat processing establishment means an establishment wholly or predominately concerned with any one or more of the activities of killing, dressing, boning, slicing, preparation, and/or packing of fresh meat and will include any related activities conducted at any place as an ancillary part of such business, such as manufacturing or processing of meat, the treatment and processing of skins or hides, rendering, processing of by-products and/or retail and/or wholesale sales

meat retail establishment means an establishment wholly or predominately concerned with the retail and or wholesale sale of fresh meat and/or meat products, including establishments where meat and/or meat products including ham and smallgoods and similar products are processed and/or manufactured as an ancillary part of the retail and/or wholesale business

[…]

4.0 Coverage

4.1 This award covers employers throughout Australia in the meat industry and their employees in the classifications listed Schedule A – Classification Structure in to the exclusion of any other modern award.

4.2The meat industry includes:

(a) meat manufacturing establishments;

(b) meat processing establishments;

(c) meat retail establishments; and

(d) the following:

(i) handling and further processing of all by-products of the establishments referred to in clause 4.2(a), (b) or (c) including skins, hides and rendering; and

(ii) distribution, transport and storage (including freezing and cold storage) operations for the purpose of transport or storage of the meat or meat products of an establishment referred to in clause 4.2(a), (b) or (c),

where such activities are carried out by an employer engaged in any of clause 4.2(a), (b) or (c) as an ancillary part of the business of that establishment, or by an employer that is a related company of such employer.

4.3The award does not cover:

(a) meat inspectors (being employees of an employer covered by this award who are engaged to perform duties equivalent to duties usually performed by AQIS Meat Inspectors);

(b) employees covered by:

(i) Nurses Award 2010;

(ii) General Retail Industry Award 2010; or

(iii) Food, Beverage and Tobacco Manufacturing Award 2010 […]” (my emphasis)

[41] The Meat Industry Award 2010 applies to establishments “wholly or predominately concerned with” the relevant meat related activity, and the coverage provisions exclude employees covered by the General Retail Industry Award 2010.

[42] Woolworths gave evidence that it commenced substantive negotiations in respect of its single national agreement with the SDA in early 2009, against the backdrop of three agreements (covering half the non-salaried employees engaged in its operations nationally) passing their nominal expiry date before or about June 2009. 38

[43] The ostensible goal of the negotiations was to:

• achieve an agreement by 30 June 2009;



• lock in productivity gains from that date; and



• ensure wage increases flowed without delay to many thousands of employees whose agreement had or were approaching their nominal expiry date. 39

[44] On 14 July 2009 (as cited above) Woolworths posted its notice of employer representational rights throughout its stores nationally.

[45] One week later, on 21 July 2009, the AMIEU wrote to Woolworths Ltd informing it of the AMIEU’s bargaining representative status in relation to the proposed national agreement.

Woolworths held back passing to the AMIEU the (near) in principle agreement it believed it had reached on 30 June 2009 until it had resolved the outstanding matters referred to above. Because Woolworths took the decision to wait until the outstanding matters in the so-called in principle agreement had been resolved, Woolworths did not respond promptly to the AMIEU’s correspondence of 21 July 2009. 40

[46] However, as these matters remained outstanding and, for various reasons 41 were not moving towards resolution, Woolworths provided the AMIEU with a copy of the agreement as it was on or about 27 August 2009.42

[47] The meeting of 4 September 2009 as evidenced by Woolworths demonstrates that it was unable to reconcile its goal of a single national agreement with the AMIEU’s goal for a single national agreement for meat units. Woolworths took the line, so its evidence went, that the terms and conditions of employment in the national agreement were “fairly general to all employees”. 43

[48] The AMIEU, according to Woolworths, appeared not to be contesting so much the terms of the proposed agreement but more so the issue of coverage, though the discussion does appear to have averted to a savings clause for non-salaried meat unit employees in Victoria who did not wish to move to common rosters and higher pay initially, amongst other matters mentioned below. 44

[49] At the conclusion of the meeting of 4 September 2009, Woolworths proposed a date for the next meeting to discuss the agreement (that being either 10 or 11 September 2009). The AMIEU was non-committal. 45

[50] On 8 September 2009, Woolworths contacted the AMIEU to ascertain if they were attending a further meeting that week, and were informed that no meeting was warranted and that certain correspondence was being directed to Woolworths. 46

[51] The correspondence was received that day and comprised the correspondence of 8 September 2009 discussed above, which was the AMIEU’s notice of concern, for purposes of s.238(3)(a) of the FW Act.

[52] Woolworths responded to the correspondence of 8 September 2009 on 15 September 2009. The substance of that response 47 (as I have summarized it) is as follows:

• Woolworths was continuing to seek to reduce the number of industrial agreements applicable to non-salaried employees in its supermarkets for business reasons;



• in so doing it would harmonise its employees’ terms and conditions of employment;



• the proposed agreement included improved conditions for all employees including:

1. a real wage increase;

2. phasing out the 90% rate for 20 year old employees (including those employed in meat units as non-apprentice packers and wrappers;

3. 11 days personal leave for full time employees (pro-rata for others); and

4. improvements in various allowances and leave benefits.

• the AMIEU had not met with it following the 4 September 2009 meeting;



• the AMIEU raised no concerns with the substantive terms of the proposed agreement;



• Woolworths “fully accepts that there were negotiations with the SDA representatives prior to 30 June 2009 about the proposed national supermarkets agreement”;



• that it so acted to achieve an agreement before 30 June 2009 so that “tens of thousands” of non-salaried employees in South Australia, Broken Hill, Western Australia and the Northern Territory who were covered by agreements with a nominal expiry date prior to 30 June 2009 would not be denied the benefit of an immediate pay rise under the new proposed agreement;



• Woolworths does not agree with the claim it had bargained inappropriately prior to 30 June 2009 and in any event now recognized the role of the AMIEU as a bargaining representative and was open to further discussion with the AMIEU on the content of the agreement (while it retained it principle commitment to a single, national agreement);



• its position in this regard was not a “stratagem” or an “artifice”;



• it would give “genuine and serious consideration to any issues [the AMIEU] might raise about the specific terms of the proposed agreement”, but remained wedded to its goal of an single national agreement;



• carving out meat unit employees from the national agreement would not assist either the fairness or the efficiency of the agreement bargaining process;



• as a matter of practical necessity the legacy of the various state agreements meant that the national agreement could not be negotiated at a date common to all employees, and delaying the benefits to the “tens of thousands” of employees covered by the nominally expired State and Territory agreements was an acceptable reason for progressing the agreement;



• meat units have no greater differentiation in supermarkets than do other departments (such as seafood, bakeries or delicatessens), and this was recognized in the General Retail Award 2010.

[53] Notwithstanding this correspondence, one day later, on 16 September 2009, the AMIEU lodged this application in FWA. It also corresponded with Woolworths at the same time, indicating it was willing to discuss the agreement further, and, contrary to the claims of Woolworths, it had raised issues about the substantive terms of the proposed agreement, other than its coverage. 48

[54] The AMIEU and Woolworths met again on 24 September 2009. They discussed a range of issues, including savings provisions for Victorian employees; RDOs, paid training leave, picnic days and so forth. 49 These were the subject of a telephone conversation on 1 October 2009, at the instigation of Woolworths, in which Woolworths put its positions about the range of matters discussed in the previous week.50 That discussion was terminated by the AMIEU.51 Thereafter there appear to have been some telephone discussions between the AMIEU and Woolworths about various other AMIEU claims (including attendance at inductions) and the prospect of Woolworths providing certain undertakings. These discussions appear to have concluded on 19 October 2009, at which time the parties agreed that were at an impasse. 52

[55] Generally, Woolworths claims that the scope order as sought is unnecessary for reason that:

• there is nothing inappropriate or unfair in Woolworths Ltd seeking to implement a single national agreement covering its non-salaried supermarket employees;



• the group of employees has been fairly or reasonably chosen:

1. as it yields consistent terms and conditions and efficiencies at various levels for Woolworths Ltd;

2. the proposed coverage is supported by the SDA (which represents a larger number of meat unit employees than does the AMIEU and which does not seek a carve out of from the proposed national agreement); and

3. the efficiency of the bargaining has been disrupted by the making of the proposed scope order. 53

CONSIDERATION

[56] The AMIEU contends that it has satisfied the requirements for a scope order, pursuant to s.238 of the FW Act, to be made on the terms it seeks, which is to the effect that employees who perform duties in meat units within Woolworths, as an organizationally or geographical or operationally discrete location, be excised from the coverage of the proposed national agreement. The AMIEU gave evidence that there had been a number of agreements (some eleven in all) made with Woolworths since 1996 on a state-level basis for which the coverage extended to the meat units or meat rooms within the supermarkets only. 54

[57] The relevant legislative provisions are as follows:

“238 Scope orders

Bargaining representatives may apply for scope orders

(1) A bargaining representative for a proposed single-enterprise agreement may apply to FWA for an order (a scope order) under this section if:

(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and

(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

No scope order if a single interest employer authorisation is in operation

(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.

Bargaining representative must have given notice of concerns

(3) The bargaining representative may only apply for the scope order if the bargaining representative:

(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(c) considers that the relevant bargaining representatives have not responded appropriately.

When FWA may make scope order

(4) FWA may make the scope order if FWA is satisfied:

(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and

(b) that making the order will promote the fair and efficient conduct of bargaining; and

(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and

(d) it is reasonable in all the circumstances to make the order.

Matters which FWA must take into account

(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Scope order must specify employer and employees to be covered

(5) The scope order must specify, in relation to a proposed single-enterprise agreement:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

Scope order must be in accordance with this section etc.

(6) The scope order:

(a) must be in accordance with this section; and

(b) may relate to more than one proposed single-enterprise agreement.

Orders etc. that FWA may make

(7) If FWA makes the scope order, FWA may also:

(a) amend any existing bargaining orders; and

(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by FWA, or take such other actions, as FWA considers appropriate.

239 Operation of a scope order

A scope order in relation to a proposed single-enterprise agreement:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earliest of the following:

(i) if the order is revoked—the time specified in the instrument of revocation;

(ii) when the agreement is approved by FWA;

(iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

(iv) when the bargaining representatives for the agreement agree that bargaining has ceased.”

THE REQUIREMENTS OF THE FAIR WORK ACT 2009

Section 238(1)(a) of the FW Act

[58] The AMIEU contends that the requirements of s.238(1)(a) of the FW Act have been satisfied in so far as the AMIEU is a bargaining representative in relation to the proposed national agreement (which is not a matter of any contest) and it has “concerns that bargaining for the [Woolworths single national] agreement is not proceeding efficiently or fairly”.

[59] The AMIEU also submits that the requirements of s.238(1)(b) of the FW Act have been met in so far as the reason for its “concern” is that the proposed agreement “will cover employees that it is not appropriate for the agreement to cover.”

[60] It appears to me that the AMIEU has concerns of the requisite order, as required by s.238(1)(a) of the FW Act. There is, in my view, little doubt that Woolworths and the SDA, at least, have conducted themselves over time (and well before 1 July 2009) within the law and consistent with the statutory framework at the relevant time, to exclude the AMIEU from the bargaining process, for reasons of efficiency, and perhaps more. So much was admitted by Mr Carr of Woolworths and by Ms Burnley, Industrial Officer for the SDA. Mr Carr effectively conceded the same point in cross examination, the transcript of proceedings records Mr Carr’s evidence as follows:

[Mr Norris]“I take it that you agree with Mr Crawford's evidence that in respect of the negotiations in Queensland in 2001, 2004 and 2007 for four walls agreements in Queensland the AMIEU were deliberately excluded from the negotiations?---The AMIEU, yes, weren't involved in those negotiations. Certainly in 2007 it was the case. 2004 I recall there was discussion between the company and the union, but, no, I believe that they weren't involved in those negotiations, yes.

When you say "weren't involved," that was by a decision of Woolworths, wasn't it?---Yes. We embarked upon an agreement with the SDA.

I take it you'd agree with Mr Smith's evidence that in respect of the 2000, 2003 and 2006 negotiations that occurred in South Australia again the AMIEU were deliberately excluded from the negotiations?---The negotiation was between Woolworths and the SDA.

Yes. Now, would you agree that the AMIEU were deliberately excluded from the negotiations?---They weren't included, yes, I agree.

THE SENIOR DEPUTY PRESIDENT: Well, it wasn't an accident, was it? I mean, you didn't forget to - - -?---No, it wasn't an accident.” 55

[61] The AMIEU believes this raises issues of both efficiency and fairness.

[62] The concern in relation to “efficiency”, I should add, might not appear immediately evident from the AMIEU’s materials, but the FW Act does not require both circumstances to be in existence for purposes of the application.

[63] The AMIEU also contends that these issues (but particularly the issue of fairness) arise from its concern that “the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover”. The AMIEU “considers” that if it could represent its members directly in relation to a separate agreement which covered only non-salaried employees in supermarkets then the bargaining process would be both efficient and fair (where it is not presently).

[64] So far as the AMIEU has made the claims that it is concerned that the bargaining is not proceedings efficiently or fairly, then the requirements of s.238(1) of the FW Act have been met. The FW Act does not require any level of satisfaction to be found in relation to the measure of objectivity upon which the applicant bargaining representative must be based. Equally so, the AMIEU’s concerns are not fanciful or asserted for the mere reason of attracting jurisdiction. The conduct revealed in the evidence cited immediately above sufficient attests to that.

[65] Whether all the AMIEU’s concerns have any objective value to them, however, is a matter to which I will have regard for purposes of s.238(4) of the FW Act, and particularly s.238(4)(d) of the FW Act.

[66] I should add that for the purposes of my considerations in relation to the bargaining conduct of the SDA and Woolworths prior to 1 July 2009, I have had regard to Item 18 of Schedule 13 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 which reads:

“18 FWA may take into account conduct engaged in by bargaining representatives while bargaining for WR Act collective agreement

(1) This item applies if:

(a) before the WR Act repeal day, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective agreement; and

(b) immediately before that day, the collective agreement had not been made; and

(c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective agreement, had it been made; and

(d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective agreement, had it come into operation.

(2) FWA may take into account that conduct:

(a) in deciding whether it is reasonable in all the circumstances to make a bargaining order or a scope order in relation to the proposed enterprise agreement; […]”

[67] The Schedule allows FWA to have regard to conduct that occurred prior to the commencement of the FW Act (on 1 July 2009) for purposes of such application as that which is before me. I have had regard to that conduct as it was evidenced.

Section 238(2) of the FW Act

[68] For the further purposes of ensuring the application is properly before FWA, I should add at this point that s.238(2) of the FW Act reads:

“Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.”

[69] No issue arises in these proceedings that s.238(2) of the FW Act is relevant.

Section 238(3) of the FW Act

[70] The AMIEU contends further that is has met the requirements of s.238(3)(a) of the FW Act in so far as it served upon the “respondent” 56 (that being Woolworths Ltd) a notice of its concerns on 8 September 2009.57

[71] The AMIEU submitted that the “respondent” raised no argument that it had not been given a reasonable time to respond to the concerns raised in the notice of 8 September 2009 (though I note the application proper was lodged on 16 September 2009).

[72] Woolworths Ltd appears to have responded to the notice within the time frame stipulated by the AMIEU. 58 The AMIEU contends that the requirement of s.238(3)(b) of the FW Act has been met as a consequence.

[73] The requirements of s.238(3)(c) of the FW Act have been met, so it was argued by the AMIEU, in so far as that organisation continued to have the concerns that prompted the application notwithstanding the response in writing its received from Woolworths Ltd to its notice of 8 September 2009. That is, the AMIEU considers that the “respondent” has not responded appropriately.

[74] Has the AMIEU met the requirements of s.238(3)(a), (b) and (c) of the FW Act, which reads:

“Bargaining representative must have given notice of concerns

(3) The bargaining representative may only apply for the scope order if the bargaining representative:

(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(c) considers that the relevant bargaining representatives have not responded appropriately. [My emphasis]

[75] Section 283(3) of the FW Act appears to me to be predicated upon the bargaining representative, the AMIEU, giving written notice of its concerns to “the relevant bargaining representatives for the agreement” that bargaining is not proceeding efficiently or fairly.

To whom should the AMIEU have given notice of its concerns (s.238(3) of the FW Act)?

[76] The AMIEU indicated it had served such notice upon the “respondent”. That is, Woolworths Ltd, which is a bargaining representative for the agreement.

[77] The AMIEU copied its notice of 8 September 2009 to the SDA. It also copied its notice to the AWU (which is evident from the correspondence itself).

[78] The AMEIU did not give notice of its concerns to Woolworths (South Australia) Pty Ltd.

[79] The AMIEU claims that it has met the requirements of s.283(3) of the FW Act. In its view it has done so by either gave the written notice to the “relevant” bargaining representative (Woolworths Ltd, in its view) and by so doing discharged its obligation under s.238(3)(a) of the FW Act.

[80] Alternatively, as I understand the AMIEU’s submission, by copying the written notice to the SDA and the AWU, the AMIEU effectively provided them with a written notice as “relevant bargaining representatives”, thereby also meeting one of the preconditions to an application being made. Equally so, the AMIEU contends by giving written notice to Woolworths Ltd, it had effectively communicated the same in a satisfactory manner to Woolworths (South Australia) Pty Ltd.

[81] I concede that this is an area in which there is considerable scope for confusion to arise.

[82] Firstly, neither the FW Act nor the Explanatory Memorandum provide any guidance as to what might constitute a “relevant bargaining representative” at s.283(3)(a), (b) and (c) of the FW Act. Section s.176 of the FW Act refers only to “bargaining representatives” as such. Section 239 of the FW Act refers to “bargaining representatives” in relation to when the operation of a scope order ceases to be in effect, and not to “the relevant bargaining representatives”. Is an applicant required, therefore, to give notice of its concerns to all bargaining representatives or just relevant bargaining representatives, and if the latter, how are they to be distinguished from all the bargaining representatives involved in the bargaining process?

[83] Secondly, the interaction of s.176 of the FW Act and s.238 of the FW Act may give rise to difficulties in situations where there are multiple prospective bargaining representatives. This is because the identity of all the bargaining representatives, be they employer or employee organisation bargaining representatives or bargaining representatives nominated in writing, need not necessarily be always known to the other bargaining representatives.

[84] The FW Act places no obligation upon the bargaining representatives for a proposed agreement to disclose its status in any public manner, nor is there any statutory obligation upon the employer to inform any bargaining representatives of the identity of any other bargaining representatives that have been disclosed to it.

[85] The only obligations that arise are for an employee bargaining representative to provide a copy of the instrument of appointment to the employer, and for an employer bargaining representative (other than in relation to a greenfields agreement) to give a copy to a bargaining representative of the employee, but upon request by that bargaining representative only. Section 178 of the FW Act reads in this regards:

“178 Appointment of bargaining representatives—other matters

When appointment of a bargaining representative comes into force

(1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.

Copies of instruments of appointment must be given

(2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:

(a) for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer; and

(b) for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement—be given, on request, to a bargaining representative of an employee who will be covered by the agreement.” [my emphasis]

[86] Ordinarily any difficulty about the identity of bargaining representatives might not emerge with any frequency. But in the current case, Woolworths (South Australia) Pty Ltd stands outside its parent company for purposes of its status as an employer bargaining representative. But that fact may not be readily identifiable to any other bargaining representative unless it was disclosed expressly by that entity itself or Woolworths Ltd, or by some other incidental means of which the bargaining representatives could have been reasonably have been aware.

[87] Further, as the AWU adopted a very low profile in relation to the agreement making process for the proposed national agreement, the AWU may not have been readily identified or be identifiable as a bargaining representative (and its interests may have been reflected by informal agreement by the SDA).

[88] In short, there is no statutory support in the FW Act for the public identification, at a prima facie level (putting aside any challenge in relation to coverage 59) of a bargaining representative or of the bargaining representatives. For reasons that will become clear, a bargaining representative therefore must act with care and by its own due diligence, it appears, in order to identify all the bargaining agents on the bargaining terrain for purposes of ensuring it meets the requirements of s.238(3) of the FW Act (or otherwise for purposes of meeting the good faith bargaining requirements of the FW Act generally).

The AMIEU’s knowledge of the identity of the bargaining representatives

[89] In the current case, Woolworths Ltd did not expressly alert the AMIEU to the separate role and standing of Woolworths (South Australia) Pty Ltd. Nor was it under any obligation to do so.

[90] However, on 27 August 2009, Mr Carr of Woolworths Ltd forwarded to Mr Crawford of the AMIEU a copy of the (near) in principle national agreement. Clause 1.2.1(a) of the proposed agreement makes clear that Woolworths (South Australia) Pty Ltd is a separately identified party and therefore a separately identified bargaining representative. From that point going forward, the AMIEU ought to have recognised Woolworths (South Australia) Pty Ltd as a bargaining representative in its own right.

[91] The circumstances of this matter also give me cause to find that the AMIEU was aware of the status of the AWU and the SDA as bargaining representatives.

[92] The fact that the AMIEU copied its correspondence of 8 September 2009 to the SDA and the AWU provides the basis for an inference to be drawn that the AMIEU were aware that the two unions had default bargaining representative status for purposes of the bargaining process. The AMIEU would hardly have copied the notice to the SDA or the AWU for the passing interest of those two unions if they had no relevant interest in the bargaining process.

[93] Indeed, in respect of the SDA, that union is notorious within the content of the written notice of 8 September 2009 as being a default or employee organisation bargaining representative.

To which “relevant bargaining representatives” should the AMIEU have given written notice of its concerns with the bargaining process?

[94] The AMIEU did not serve the SDA as a bargaining representative with a written notice (under s.238(3)(a) of the FW Act) that related to any discrete concerns about the SDA’s conduct in relation to the bargaining in regard to the proposed national agreement. The SDA was cited repeatedly in the notice to Woolworths Ltd as being a party to the conduct about which had concerns. The evidentiary case presented by the AMIEU also was to the effect that the SDA had aspired to a national “four walls” agreement and was therefore, by implication, complicit at some meaningful level, in the alleged efforts by Woolworths to “exclude” the AMIEU from negotiations.

[95] Mr Crawford, Federal Secretary of the AMIEU and Branch Secretary of the Queensland Branch of the AMIEU, alleged Woolworths’ actions in seeking to make a national agreement with SDA before 1 July 2009 were “clandestine”. 60 Mr Bird’s evidence was that the SDA had for a “long period” aspired to “four wall agreements” and had sought to be “the sole union representing all supermarket employees, including meat room employees.” He further claimed that “the SDA aspiration I have referred to has also been supported by Woolworths.”61

[96] The AMIEU notice of 8 September 2009 itself also stated as follows:

“Woolworths and SDA officials were aware that an agreement could not be lodged with the Workplace Authority [prior to 30 June 2009] however both parties kept negotiating in a clandestine fashion so that the AMIEU would be faced with a fait accomplish.

[…]

For the reasons expressed above, we [the AMIEU] hold a firm view that bargaining for the proposed agreement has not proceeded efficiently or fairly.” [my emphasis]

[97] It appears to me that the requirements that fall upon an applicant seeking scope orders are that it must provide a notice to the “relevant bargaining representatives” of its concerns, provide those bargaining representatives with a reasonable opportunity to respond and then to consider the appropriateness of that response. Section 238(3) of the FW Act sets out these requirements.

[98] The purpose of this notice must be to test whether, before the application is made to FWA for orders, the conduct which is the source of the concerns can be rectified by the reasonable endeavours of the bargaining representatives themselves, in a manner that conforms to the good faith bargaining process.

[99] This approach appears to be supported by the Explanatory Memorandum, which states:

“These same preconditions apply for bargaining orders (except that for bargaining orders, FWA has the ability to waive the requirement to give the written notice of concerns). This requirement is included to encourage bargaining representatives to consider resolving issues surrounding the scope of a proposed enterprise agreement through the good faith bargaining process. It also ensures that it is no more expedient to obtain a scope order rather than a bargaining order.” 62 [my emphasis]

[100] The difficulty which arises here, as the evidence demonstrates, is that the SDA, which was alleged by the AMIEU to have been complicit in the conduct that has given rise to the concerns it holds about the bargaining process, was not notified in its own right of those concerns, nor given an opportunity to respond to those concerns (let alone within a reasonable period).

[101] The SDA only received a copy of the notice served on Woolworths Ltd.

[102] The notice as directed to Woolworths Ltd asserted an obligation upon it to respond within a particular time period. No such asserted obligation or invitation of any kind was directed upon the SDA. Consequently, the concerns the AMIEU had with the conduct of the SDA was not subject to the good faith bargaining processes which provides the rationale for giving the written notice referred to in s.238(3)(a) of the Act.

[103] Further, I do not accept the argument put forward by the AMIEU that in copying the SDA in on the written notice (of 8 September 2009) it effectively met the requirements to give written notice to all relevant bargaining representatives, and that it would be “untenable” to consider otherwise. This is because, the AMIEU did not:

(a) bring its concerns about the efficiency and the fairness of the bargaining process to the attention of the SDA (s.238(3)(a) of the FW Act);

(b) provide the SDA itself with an opportunity to respond to those concerns within a reasonable time (s.238(3)(b) of the FW Act), or

(c) consider whether the SDA had “responded appropriately” to those concerns of which it had notified the SDA (s.238(3)(c) of the FW Act).

[104] Even if by copying the SDA into the correspondence of 8 September 2009 directed to Woolworths it could be held that the SDA was given written notice for purposes of s.238(3)(a) of the FW Act, the conjunctive requirements of s.238(3)(b) of the FW Act and s.238(3)(c) of the FW Act were not afforded to the SDA.

[105] I should add that I am not able to overlook such a deficiency on the part of the AMIEU.

[106] There is no equivalent provision in s.238 of the FW Act to s.228(5) of the FW Act, which vests a discretion in FWA to consider an application for bargaining orders even though there has been no compliance with s.228(4)(b) and (c) of the FW Act, in relation to written notice provisions and the time in which to respond.

[107] Whilst I must dismiss the application in light of my reasoning above, this matter has been fully heard and the bargaining representatives may benefit from my full consideration of the matter, particularly given that the substantive matter will remain in contest once the AMIEU, if it was inclined, remedied the deficiency in its application in a timely manner.

Who is a “relevant bargaining representative” for purposes of s.238(3) of the FW Act?

[108] Notwithstanding this conclusion in relation to the SDA, did the AMIEU give notice of its concerns to all the “relevant” bargaining representatives?

[109] This might have the effect of not requiring a notice to be given to a bargaining representative that is not complicit in the conduct about which the applicant has complained, or otherwise to a bargaining representative that has a demonstrable commonality of interests and representation with the bargaining representative that has been given written notice.

[110] Arguably, the AMIEU’s conduct in not giving written notice to the AWU may fall into the former circumstance as no complaint was made of its discrete conduct in bargaining through its relationship with Woolworths. Arguably, also, the AMIEU’s failure to give written notice to Woolworths (South Australia) Pty Ltd (whose representative identity, in any event, appears to have been submerged with the bargaining representatives for its parent company) may fall into the latter circumstance.

[111] That is, neither the AWU nor Woolworths (South Australia) Pty Ltd may necessarily be “relevant bargaining representatives” for the purposes of s.238(3) of the FW Act.

[112] If this were to be the appropriate approach, however, it may be a matter of contest in any particular case as to the identity of the “relevant bargaining representatives” in relation to whether it was reasonable in the circumstances to designate a bargaining representative as a non-relevant bargaining representative. Applications for scope orders would face inherent risks in this regard certain salient facts about relationships between bargaining representatives may not be within the applicant bargaining representative’s direct knowledge.

[113] Equally, however, on the plain words of s.238(3) of the FW Act and absent any operative definition of the meaning of “relevant’, all the bargaining representatives might be “relevant” and should be given a written notice of the concerns, be they allegedly complicit in the alleged conduct or not, and given an opportunity to respond to those concerns. This is because any allegations about the conduct of other bargaining representatives and any prospective modification of the bargaining procedures (or the scope of the agreement) are matters in which all the bargaining representatives might have a genuine interest and expect to have an opportunity to which to respond.

[114] It appears to me, however, that given that s.176 and s.239 of the FW Act revert to a broader usage of the term “bargaining representatives”, Parliament intended that s.238(3) of the FW Act requires the applicant bargaining representative to provide written notice to the “relevant” bargaining representatives as a distinguishable subset of bargaining representatives.

[115] Whilst the basis for distinguishing “relevant” bargaining representatives from all bargaining representatives in the bargaining process might be fraught, in my view it would at least extend to those bargaining representatives who are complicit (directly or indirectly) in the “concerns” which have been the subject of the written notice under s.238(3) of the FW Act. It is because they are complicit in manner I have described that a bargaining representative is ascribed the identity as a “relevant bargaining representatives” for the purpose of the section.

[116] This is my tentative finding. I say this, firstly, because, as I mentioned above, most if not all bargaining representatives have an interest in the bargaining process (in this case, Woolworths, Woolworths (South Australia) Pty Ltd, the SDA and the AWU). They would all ordinarily seek to be informed of any concerns about that process held by another bargaining representative and, because it may prospectively affect bargaining outcomes, respond to those concerns.

[117] And secondly, it appears to me that the construction I have adopted exposes applicant bargaining representatives to bring into dispute in any given situation the question as to whether they have appropriately identified a “relevant bargaining representative” for the purpose of s.238(3)(a) of the FW Act.

Did the AMIEU provide written notice to “the relevant bargaining representatives”, for purposes of s.238(3) of the FW Act?

[118] In view of my finding set out above, because the AMIEU did not provide written notice of its concerns to the SDA, which is directly complicit along with Woolworths Ltd in the concerns which were the subject of the written notice of 8 September 2009, the AMIEU failed to meet the precondition to an application for scope orders required at s.238(3)(a) of the FW Act, and the application therefore is not within the jurisdiction of FWA. That is, the SDA was a relevant bargaining representative for the purposes of s.238(3) of the FW Act but was not given written notice in the terms required by s.238(3)(a) of the FW Act.

[119] I have not found Woolworths (South Australia) Pty Ltd or the AWU to be “relevant bargaining representatives” because of the submergence of their identity and interests for all practical purposes with Woolworths Ltd and the SDA respectively. The AMIEU’s failure to give those bargaining representatives (Woolworths (South Australia) Pty Ltd and the AWU) written notice of its concerns does not enliven an issue under s.238(3) of the Act.

[120] This finding, however, does not conclude an examination of the statutory obligations that an applicant for a scope order has in relation to other bargaining representatives.

Do the good faith bargaining requirements of the FW Act operate between all bargaining representatives (where there are multiple bargaining representatives) for a proposed agreement for purposes of s.238(4) of the FW Act?

[121] Section 238(4)(a) of the FW Act reads:

“FWA may make the scope order if FWA is satisfied:

(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements;” [...]

[122] I have outlined above the bargaining process as it has been between the AMIEU and Woolworths.

[123] This has been a process which has involved only two bargaining representatives. The AMIEU has not contacted the SDA, the AWU or Woolworths (South Australia) Pty Ltd in relation to its bargaining positions regarding the proposed national agreement. This is so even though its various positions, including in relation to coverage, might directly or indirectly affect employees who may have the AWU and the SDA (or even Woolworths (South Australia) Pty Ltd) as their bargaining representatives. Equally, those unions may have an interest in the AMIEU’s positions, such as in relation to the Butchers Picnic Days and so forth where their members may need to work along side (or intermittently so) with meat unit employees.

[124] Can the AMIEU be said to have been meeting the good faith bargaining requirements where it has entered into bargaining with one bargaining representative (Woolworths Ltd) and not the other three bargaining representatives?

[125] If FWA is not satisfied the AMIEU, as the bargaining representative who made the application for orders under s.239 of the FW Act has met or is meeting the good faith bargaining requirements the orders sought cannot be made.

[126] The SDA submitted that the burden to meet the good faith bargaining requirements under the FW Act falls upon all bargaining representatives, and extended to their relationships with one another.

[127] This is a submission with which I concur. So far as bargaining for an agreement of the requisite kind under s.172 of the FW Act is occurring and there are multiple bargaining representatives, the good faith bargaining requirements operate as between all the bargaining representatives, not merely between a single non-employer bargaining representative and the employer bargaining representative.

[128] But do the circumstances the AMIEU faced warrant such a conclusion being reached in respect of the obligations that fell upon it once it commenced bargaining with Woolworths?

Did Woolworths’ conduct mitigate against the capacity of the AMIEU to meet the good faith requirements of the FW Act?

[129] Although it was not closely argued by the AMIEU, there is a suggestion in the evidence that Woolworths’ conduct in not contacting the AMIEU until 26 August 2009 after being notified of the AMIEU’s status as a bargaining representative on 21 July 2009 mitigated the scope for the AMIEU to meet the good faith bargaining requirements of the FW Act.

[130] Mr Carr’s evidence for Woolworths 63 does not support a finding that Woolworths acted to continue to exclude the AMIEU from the bargaining process (and by so doing not recognise or bargain with) after 21 July 2009. If it had, there might be some argument that the AMIEU’s reciprocal obligation to bargain in good faith with other bargaining representatives may have been compromised.

[131] Mr Carr acted, on my view of his evidence, with an eye to efficiency and practicality. Mr Carr delayed contacting the AMIEU for a period of five weeks or so in an effort, he hoped, to resolve issues that were residual to the prior bargaining process (that is, pre-14 July 2009) before such time as he put the proposed agreement to the AMIEU for discussion. Ultimately, he was not successful in achieving this in its entirety and contacted the AMIEU directly. A series of meetings and discussions thereafter occurred between the AMIEU and Woolworths as set out above. 64

[132] Is Woolworths approach in this regard consistent with good faith bargaining?

[133] The FW Act does not stipulate that bargaining representatives need all bargain with one another in a composite manner, or simultaneously. There may be any number of permutations to the bargaining process where there are more than two bargaining representatives.

[134] Bargaining representatives may have overlapping or unrelated interests, they may wish to act together or in concert, or with one being represented by the other (for example, as with the AWU’s relationship with the SDA in this instance).

[135] Where the interests of the bargaining representatives are not common, they may bargain with one representative at one point and then attend to their bargaining (on one or more matters as the circumstances dictate) with another representative at another point. There are sound reasons why bargaining representatives might conduct themselves in such ways and they are reflective of the subtleties and leveraging that occurs in the bargaining processes.

[136] A simple failure to bargain in a composite manner, therefore, may not lead to a finding that bargaining has not been taking place in good faith. Bargaining representatives may bargain with one another at different times, in different combinations, with different degrees of intensity and with a different scope (depending on the bargaining representative’s representational profile and whether its agenda is discrete or wide ranging).

[137] A snap shot of a bargaining process therefore might not always capture its totality. What is important, ultimately, is that the bargaining representatives do bargain with one another in the manner required under s.228 of the FW Act.

[138] Whether good faith bargaining occurs in relation to all or any of the bargaining representatives is a matter to be determined within the circumstantial matrix germane to the particular case at hand.

[139] In summary, I do not read into s.228 of the FW Act any requirement that bargaining representatives in complex bargaining environments (concerning three or more bargaining representatives) must meet in a composite manner only. What may be important is the wider field of evidence as to whether or not a bargaining representative is meeting the good faith bargaining requirements.

[140] Further, the evidence in this case does not suggest a situation in which an employer bargaining representative has excluded intentionally a bargaining representative from the bargaining process, bargained with a preferred bargaining representative and\or other persons and then pressed a ballot for the agreement, as a fait accompli. 65

[141] Here the circumstances are very much different, and Woolworths did not move to put any proposed agreement to the ballot before it had met and had discussions with the AMIEU. To the date of this decision it has taken no such action of which I am aware, and indeed, Woolworths has entered into undertakings with the AMIEU in to note so act without reasonable notice (the details of which do not warrant exposition here).

[142] Further, Woolworths put to the AMIEU what was the “state of play” in relation to the proposed national agreement, conducted negotiations over a period (27 August until 19 October 2009) with the AMIEU separately and responded to its various proposals.

[143] Those discussions only ceased when the parties agreed they were at an impasse in relation to their respective positions on coverage and other matters (public holidays, savings clauses, roster cycles, RDOs etc) and not for any other reasons. 66

[144] Consequently, I cannot find that the conduct of the bargaining representatives and particularly that of Woolworths Ltd, in some manner established a bargaining environment that in effect, made it impossible for the AMIEU itself to bargain in good faith. The alternative appears to be the case: bargaining did occur between Woolworths and the AMIEU and only ceased at their joint decision. The fact that the SDA, Woolworths and the AMIEU did not bargain in a composite manner after 14 July 2009 is not determinative on its face of any breach of the FW Act’s good faith bargaining requirements.

[145] In view of this discussion, I cannot find anything in the evidence before me that in some manner mitigates the obligation (by way of s.238(4)(a) of the FW Act) that falls upon an applicant for a scope order to bargain in good faith before such time as it makes an application under s.238 of the FW Act.

Did the AMIEU meet the good faith bargaining requirements of the FW Act?

[146] So far I have concluded that the FW Act obliges a bargaining representative who has made an application under s.238 of the FW Act to meet the good faith bargaining requirements of the FW Act, and that those requirements extend reciprocally to all the bargaining representatives.  67

[147] I have also found that the AMIEU at the relevant time was aware of the identity of the other bargaining representatives and had an obligation, prima facie, to bargain in good faith with those bargaining representatives. The obligation to bargain in good faith with all bargaining representatives arises because the good faith bargaining requirements set out at s.228 of the FW Act do not distinguish between all bargaining representatives and "relevant" bargaining representatives, as does s.238 of the FW Act.

[148] I have further found that the conduct of Woolworths was not such that it mitigated the capacity of the AMIEU to bargain in good faith with the other bargaining representatives of whom it reasonably was aware.

[149] But a question remains: while the AMIEU may have a prima facie obligation to bargain in good faith, did the AMIEU have actual obligations to bargain in good faith with all the other identified bargaining representatives in the circumstances of the bargaining process over the period from 26 August 2009 to 19 October 2009?

[150] What is known about the bargaining process?

[151] Over the course of the discussions held between 26 August 2009 and 19 October 2009, the AMIEU put various positions to Woolworths in relation to a range of matters. Woolworths did not concede in relation to any of the claims. There was no change to the proposed agreement as it stood at 26 August 2009 following the completion of the discussions between Woolworths and the SDA.

[152] In such circumstances, is it incumbent upon a bargaining representative to recognise all other bargaining representatives and to bargain in relation to claims it has put to another bargaining representative even if the settled bargaining outcomes as they were before such claims were made remain unchanged as a result?

[153] In my view, in the circumstances of this matter as set out above, it might appear at first glance to be unreasonable to require a bargaining representative to bargain with all other bargaining representatives where none of its claims have a reasonable prospect of any success (or even partial success). To do so might appear to impose a futile procedural obligation upon the AMIEU. The substance of the proposed agreement put to the AMIEU had been reached through prior discussion between Woolworths and the SDA. When Woolworths and the AMIEU reached an impasse in their bargaining on 19 October 2009, it was because Woolworths did not concede to the AMIEU's claims (believing them to be met in some respects). The proposed agreement was not amended as a consequence.

[154] As I see it, whether or not the AMIEU subsequently recognised the SDA as a bargaining representative and put those same claims to the SDA (as had been rejected by Woolworths in the context of the agreement it had reached with the SDA) and met and discussed those claims with the SDA, the entirety of the exercise would have been to no useful purpose.

[155] Admittedly, the situation would be different if the AMIEU still sought to agitate its bargaining agenda after the meeting of 19 October 2009, continued to press it claims, and\or had succeeded in winning concessions from Woolworths absent the involvement of the other bargaining representatives. In such circumstances, the AMIEU (and arguably Woolworths if it had conceded to any claims which resulted in an amendment to the agreement) would both have been obligated to bargain in good faith with the other bargaining representatives, at least in relation to the requirements of s.228(1)(f) of the FW Act.

[156] But that is not the case here.

[157] It does not appear that a bargaining representative, such as the AMIEU, once it has commenced to bargain (by pressing claims and conducting meetings to that end, and\or responding to proposal put to it) can avoid the mandatory obligation under s.228(1)(f) of the FW Act both to recognise and bargain with "bargaining representatives for the agreement". The FW Act is clear in this regard:

“(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

[...]

(f) recognising and bargaining with the other bargaining representatives for the agreement.” (My emphasis)

[158] I would not agree that because Woolworths and the AMIEU were at an impasse at 19 October 2009 that the obligation (on the part of the AMIEU) to meet the good faith bargaining requirements in relation to other bargaining representatives fell away as a result. The mandatory requirements of s.228 of the FW Act continue to apply throughout the bargaining process in which a bargaining representative is "a bargaining representative for a proposed enterprise agreement". The AMIEU did not at any time rescind its correspondence to Woolworths of 21 July 2009 and at all times remained a "bargaining representative for a proposed enterprise agreement" (and this scope application itself is further evidence of the AMIEU's efforts in this regard).

[159] Because the AMIEU had this identity, by reason of its own written affirmation and its actions, it was incumbent upon the AMIEU to comply with the requirements of s.228(1)(f) the FW Act, notwithstanding the circumstances I have commented upon above. The FW Act does not, on its plain words, qualify or condition the mandatory requirements it imposes upon bargaining representatives for a proposed agreement. The requirements are plainly stated and require such bargaining representatives to recognition of and bargain with “other bargaining representatives for the agreement”. The bargaining representatives, I add, are not confined to “relevant bargaining representatives” (as discussed earlier).

[160] Consequently, I must conclude that the AMIEU was obliged to bargain in good faith with the SDA (and all other bargaining representatives) about its claims and it had not met nor was meeting those requirements upon making the application that is now before me.

[161] For reason of completeness, I would make two further points.

[162] Firstly, the action of the AMIEU in copying the SDA in on its correspondence to Woolworths of 4 September 2009 did no more than passively provide information to the SDA. Such an action cannot, in my view, be said to be an action that either impliedly or expressly meets the conjunctive requirements of s.228(1)(f) of the FW Act in relation to "recognising" and "bargaining" with the SDA as a bargaining representative.

[163] Secondly, to the extent it is at all relevant , it appears to me on the evidence 68 that at 19 October 2009, the AMIEU was still seeking to reach a proposed agreement with Woolworths and the other bargaining representatives (of which it was reasonably aware) within the framework of “the proposed agreement” (as put to it), and not some other agreement.

[164] Again, because the AMIEU has not met the requirements of s.238(4)(a) of the FW Act requirements (by meeting the requirements of s.228 of the FW Act) , and Fair Work Australia is not satisfied that the AMIEU has met or is meeting the good faith bargaining requirements in relation to all the known bargaining representatives, the application under s.238 of the FW Act cannot be made. I have reached this conclusion regardless of my observations earlier that the AMIEU has found itself in a difficult (historical) position in relation to the various bargaining representatives and in respect of its relative bargaining positions in the supermarket environment. These observations, however, cannot deflect the obligation that falls on the AMIEU at s.238(4)(a) of the FW Act.

Would the making of the order promote the fair and efficient conduct of the bargaining?

Section 238(4)(b) of the FW Act reads as follows:

that making the order will promote the fair and efficient conduct of bargaining; [...]

[165] Section 238(4)(b) of the FW Act requires me to consider the circumstances of the conduct of bargaining. Before FWA considers whether it will make a scope order it must be satisfied that the making of the orders will have the effect intended by the applicant bargaining representative.

[166] I have low confidence (and therefore cannot be satisfied) that the orders as sought will achieve the end as sought and promote fairness or efficiency in the bargaining process beyond the levels (of efficiency and fairness) that currently exist.

[167] If I was to make the orders as sought they may only serve no more than to replicate the current circumstances, albeit it in a narrower field of coverage.

[168] My reasons for so concluding are as follows:

• the AMIEU proposes to excise from the proposed national agreement those non-salaried employees who are employed in meat units in Woolworths’ supermarkets;

• in its stead, the AMIEU (through it Branch Secretary) proposes to make a national agreement with Woolworths in respect of those employees;

• the SDA (along with the AWU) will be a bargaining representative in relation to this national meat unit agreement, as it is now for the national agreement with the proposed coverage inclusive of meat units 69;

• it went uncontested in these proceedings that the SDA is numerically larger in its representation in meat units than the AMIEU 70;

• the SDA supports (and has supported for almost a decade, according to Ms Burnley’s evidence) 71 a single national supermarkets agreement;

• the AWU has an interest arising under its rules in relation to meat units;

• if a national agreement for meat units only were negotiated as the AMIEU seeks, then the employees who are currently covered by the remaining two state-wide agreements (Tasmania and Victoria) which cover employees in meat units, as referred to above, would not have any greater opportunity to take protected industrial action than they do under the current proposed national supermarket agreement (with its comprehensive coverage);

• so far as it is a relevant consideration, there is no evidence before me that I can reasonably rely upon that demonstrates the exchanges that are occurring for the proposed national agreement in relation to non-salaried meat unit employees are fundamentally deficient in some manner compared to current conditions in State-based meat unit or the AMIEU agreements (even setting aside the particularised savings provisions 72 for employees under those State agreements). That is, so far as it is relevant, the orders will not make good any identifiable unfairness in the proposed national enterprise agreement;

• Woolworths Ltd and the AMIEU have met and discussed their respective positions in relation to meat unit employees and reached an impasse (which both bargaining representatives recognised); and

• little discrete evidence has been led in this matter that bargaining will be made more efficient by providing for the same bargaining configuration (with the same number of bargaining representatives maintaining the same positions) albeit in relation to a narrower field of coverage.

[169] For these reasons, I am not satisfied “that making the order will promote the fair and efficient conduct of bargaining” for purposes of s.238(4)(b) of the FW Act. On my view of the evidence before me, it is a matter of mere speculation that the bargaining environment would change if I made the orders as sought (let alone become more efficient and fairer in a procedural sense).

[170] Arguably, if granted, all the orders might achieve is an unnecessary duplication of the essential bargaining process that was afoot between 26 August 2009 and 19 October 2009, and which ceased by agreement of the bargaining representatives.

[171] I should add that at the hearing the AMIEU also contended that the orders as sought were necessary because without them large numbers of young people and\or casual employees in supermarkets would be voting on complex subject matter affecting qualified trades persons such as butchers and the like working in meat units. The AMIEU suggested, this was inappropriate as such persons have no long term interest in the preservation of a certain historical configuration of terms and conditions of employment. 73

[172] This is not a claim without some intuitive support. But it cannot be substantiated beyond that that. The reasons for this are that:

• the FW Act requires employees to be covered by a proposed enterprise agreement to genuinely approve that agreement, and this requires them to do so on the basis of being in an informed state of mind; and

• meat units nationally (putting aside the circumstances in Victoria) are not devoid of casual employees and young people who may participate in ballots in respect of their terms and conditions of employment.

[173] Generally, I think it is the belief on the part of the AMIEU that the structural characteristics of the bargaining environment in which it has found itself over time, and where its bargaining leverage is not as great as that of the SDA, the AWU, Woolworths Ltd and Woolworths (South Australia) Pty Ltd together, can now be cured by way of a scope order on the terms it has sought. For the reasons I have given above, this belief is mistaken. I am not satisfied that the scope order the AMIEU seeks will either make bargaining more efficient or fair, let alone cure the structural features of the bargaining environment in which time and circumstance has placed it.

Has the AMIEU satisfied the requirements of s.238(4)(c) of the FW Act?

[174] Section 238(4)(c) of the FW Act requires that before it considers making any orders, as follows:

“that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen.”

[175] Because the orders sought by the AMIEU will not cover all of Woolworth’s employees, s.238(4)(A) of the FW Act is relevant to the finding of satisfaction FWA must make in relation to s.238(4)(c) of the FW Act.

[176] Section 238(4)(A) of the FW Act reads as follows:

“Matters which FWA must take into account

(4A)If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.”

[177] I do not read the requirements that are upon FWA to determine that if a “group” of employees can form a “geographically, operationally or organisationally distinct” group (for purposes of the application under s.238 of the FW Act) that group is therefore fairly chosen or more fairly chosen relative to any other group for purposes of coverage of a proposed agreement.

[178] It appears to me that a group of employees may be fairly chosen for reason of coverage for any number of reasons, including whether they are “geographically, operationally or organisationally distinct”.

[179] Any number of state or geographically-based business units within a national business may be capable of being carved out, as it were, for purposes of coverage of an agreement. Similarly so, organisationally and operationally distinct groups may seek to establish an agreement for their own particular interests.

[180] If an employer seeks national coverage (that is of all the employees it engages) for harmonisation and efficiency reasons, that group of employees, ordinarily, would be no less fairly chosen than any other coverage proposition put by other bargaining representatives.

[181] It appears to me that the purpose of s.238(4) and s.238(4)(A) of the FW Act is to ensure that any scope orders made by FWA apply to a group of employees who are fairly chosen having regard, where relevant, also to whether they are “geographically, operationally or organisationally distinct”. This additional purpose, no doubt, is to ensure that any order that might be made (and which does not cover all the employees of the employer) is capable of elemental utility and does not result in operational confusion.

[182] The view of the AMIEU is that an agreement that covers non-salaried meat unit employees across all Woolworths’ supermarkets in Australia is a fairly chosen group to whom to apply an order. Woolworths Ltd has met the needs of its business through various coverage arrangements, including state level agreements (even after the state-based corporate entities had been consolidated within the parent company) and meat unit-based arrangements (albeit they now only exist in two states).

[183] But there is nothing compelling (in terms of fairness) about the coverage proposal sought by the AMIEU. Meat units, in my view, are little different from any of the specialist departments in a Woolworths Ltd supermarket. And there is no greater or lesser degree of fairness relevant to a coverage proposal that extends to all employees of Woolworths Ltd.

That is, there is no inherent unfairness in the alternative coverage propositions, and such matters (as appropriate coverage) are the rightly the subject of bargaining in their own right. 74

[184] As much as the AMIEU might be able to demonstrate that meat units are divorced (by virtue of their trade and semi-trade qualifications, unique work environments and tools of trade) from those other employees and departments in Woolworths supermarkets, the opposite can also be contended.

[185] Indeed, as I have set out above, the evidence of Mr Carr for Woolworths Ltd was that despite the meat unit employees’ distinctive characteristics, there were core conditions, shared work spaces and mobility, transfer and career movement considerations and branding that created a common identity amongst employees in Woolworths’ supermarkets.

Direction of Future Award Regulation

[186] I return to the coverage of the proposed General Retail Award 2010, the coverage provisions which I have set out above (relative to those of the proposed Meat Industry Award 2010).

[187] In the General Retail Award 2010, the Full Bench of the Australian Industrial Relations Commission, supported by a submission by the AMIEU, did not exclude meat units in supermarkets from coverage within the retail industry, and expressly extended coverage to trade classifications such as butchers. 75 Equally, the Australian Industrial Relations Commission did not include supermarkets within the Modern Meat Industry Award 2010.

[188] I discern nothing unfair in an agreement the coverage of which replicates the simplicity of coverage of the applicable Modern Award.

[189] In light of this discussion, whilst I do not find the rationale for the AMIEU’s coverage compelling or any fairer relative to other coverage alternatives, that alone is not a reason to conclude that the AMIEU’s coverage proposal is not fairly chosen in its own right. Simply, the AMIEU’s coverage proposal is no more or less fairer than that proposed by Woolworths and the SDA.

[190] Section 238(4)(c) of the FW Act does not require me to venture further than this finding.

Has the application satisfied the requirements of s.238(4)(d) of the FW Act?

[191] Finally, for purposes of s.238(4)(d) of the FW Act, FWA, before considering whether to make an order, must consider whether:

“it is reasonable in all the circumstances to make the order.”

[192] I do not consider that the circumstances make it reasonable to make the order as sought.

[193] My reasons, taken whether together or discretely for reaching this conclusion are as follows:

• the applicant bargaining representative’s application is not competent for reason of non-compliance with s.238(3) of the FW Act; and\or

• the applicant bargaining representative’s application is not competent because it has not met the requirements of s.238(4)(a) of the FW Act; and \or

• I cannot be satisfied on the evidence before me that making the order would significantly alter the bargaining process, as it has become, such that it would be any fairer or more efficient than it is; such an order if made therefore would not “promote” the fairness and efficiency of the bargaining process; and \or

• any order I might make may only serve to replicate the current bargaining process and no more; and\or

• while there is evidence (of a direct and an inferential kind) that the SDA and Woolworths deliberately excluded (though not inconsistently with the terms of the statutory framework) the AMIEU from the bargaining process for some lengthy time and up until 1 July 2009, the requirements of the FW Act in relation to good faith bargaining have made such exclusionary conduct less likely, because:

• the bargaining process as it now is, in relation to the proposed agreement for purposes of s.238(1)(a) of the FW Act, is not unfair and appears to reflect the good faith bargaining requirements stipulated under the FW Act; and

• the AMIEU and Woolworths have had meetings and discussions about the terms of the proposed national agreement (between 27 August and 19 October 2009) at which there have been proposals put and genuine and timely responses provided. Apart from the fact they came to a mutually agreed impasse, there is nothing that suggests to me the bargaining process was or is unfair or inefficient; and \or

• the terms and conditions of the proposed national agreement, on what has been put before me, do not appear to demonstrate any gross unfairness or inequity, and instead suggest an ordinary range of exchanges (buy-outs) and savings provisions.

[194] This allows me to conclude generally that:

• the bargaining process as it has become is not unfair; and \or

• the bargaining process is not proceeding inefficiently, as I have described how it may be conducted where there are multiple bargaining representatives; and\or

• the coverage of the proposed national agreement is not unfair, for the reasons given above; and\or

• the prospective agreement outcome (as opposed to the bargaining process itself) may not yield a disadvantage to mean unit employees in either a relative or absolute sense.

CONCLUSION

[195] I have found that the AMIEU has not met the requirements of:

• s.238(3)(a), s.238(3)(b) and s.238(3)(c) of the FW Act; and

• s.238(4)(a), s.238(4)(b) and s.238(4)(d) of the FW Act.

[196] In view of these conclusions, I must dismiss the AMIEU’s application for a scope order under s.238 of the FW Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr L Norris for the Australasian Meat Industry Employees Union

Mr G Hatcher of Senior Counsel with Mr A Neal of Counsel instructed by Henry Davis York for Woolworths Ltd and Woolworths (South Australia) Pty Ltd

Mr J Ryan for the Shop, Distributive and Allied Employees Association

Ms R Broanda for the Australian Workers' Union of Employees, Queensland

Hearing details:

2009.

Brisbane:

22 and 23 October.

 1   A reference to Woolworths in this decision is a reference to Woolworths Ltd and Woolworths (South Australia) Pty Ltd, unless otherwise stated. See Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 56-57 for historical explanation as to why the South Australian entity continues to stand outside the main listed parent company.

 2   See Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 52

 3   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 18 – 57; Affidavit of Mr Graham Bird sworn 1 October 2009 at PN 3-4; Affidavit of Mr Graham Smith sworn 30 September 2009 at PN 3, 5 and 24

 4   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 11 and the Transcript of Proceedings of the hearing on 22 October 2009 at PN 158 and 159 and qualified at PN 278

 5   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 99

 6   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 7

 7   Letter from Mr Brian Crawford to Mr Gerald Carr dated 8 September 2009 as exhibited to the Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC – 13

 8   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 58-70. And for impact in South Australia refer to the Affidavit of Mr Graham Smith sworn 30 September 2009 at PN 6-11, 21 and 24.

 9   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 60-67 and Affidavit of Mr Graham Bird sworn 1 October 2009 at PN 23-28

 10   Affidavit of Mr Graham Bird sworn 1 October 2009 at PN 4-9 and Affidavit of Mr Graham Smith sworn 30 September 2009 at PN 3-4. See also the evidence of the SDA through Ms Burnely, the National Industrial Officer given at the hearing on 23 October 2009 at PN 818 to 826 of the Transcript of Proceedings

 11   See Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at Exhibit BPC 7

 12   Affidavit of Mr Graham Bird sworn 1 October 2009 at PN 19 and 21

 13   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 70

 14   Woolworths gave evidence that the notice was issued to store managers on 13 July 2009 and posted without exception on 14 July 2009 as stated in the Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 89-94 and Exhibit GC-7

 15   See Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at Exhibit BPC 8

 16   Transcript of Proceedings of the hearing on 23 October 2009 at PN1365-1368

 17   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 79

 18   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 88-90

 19   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 82-86

 20   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-13

 21   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-13

 22   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 37

 23   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 11-20, 26

 24   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 27

 25   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 33

 26   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 34-36

 27   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 39

 28   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 40 and Exhibit GC-1

 29   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 41

 30   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 11 and the Transcript of Proceedings of the hearing on 22 October 2009 at PN 158 and 159 and qualified at PN 278

 31   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 50-51

 32   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 52, 56-57

 33   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 58

 34   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 64-67

 35   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 68

 36   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 70-72 and Exhibit GC-3

 37   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-3

 38   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 77-79, 82-83

 39   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 80, 84 and 100

 40   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 98-99 and the Transcript of Proceedings on 23 October 2009 at PN1363 to 1370

 41   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 97

 42   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 102 and 104

 43   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 109

 44   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 109 and 110

 45   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 112

 46   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 114

 47   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-14

 48   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-15

 49   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-20

 50   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 131-140

 51   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 139

 52   See Exhibit Woolworths 3

 53   Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 147-148

 54   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 12-17

 55   Transcript of Proceedings of 23 October 2009 at 1131 to 1135

 56   Written submissions of the AMIEU dated 2 October 2009 at page 1

 57   Letter from Mr Brian Crawford to Mr Gerald Carr dated 8 September 2009 as exhibited to the Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC – 13, in which the AMIEU gave Woolworths Ltd 7 days in which to reply to its concerns

 58   Written submissions of the AMIEU dated 2 October 2009 at page 1

 59   See the requirement of s.176(3) of the FW Act

 60   Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 18, 59 and 69

 61   Affidavit of Mr Graham Bird sworn 1 October 2009 at PN 4-9

 62   Explanatory Memorandum to the Fair Work Bill 2009 at Item 983

 63   Transcript of Proceedings on 23 October 2009 at PN 1346- 1370 and PN45 of this decision

 64   See Exhibit Woolworths 3

 65   Australian Municipal, Administrative, Clerical and Services Union v Queensland Tertiary Admissions Centre Ltd[2009] FWA 53 (29 July 2009)

 66   See Exhibit “Woolworths 3” handed up during the proceedings on 23 October 2009 “Chronology of WOW Negotiations with AMIEU” prepared by Mr Carr

 67   I should add that the complexity of reciprocity in bargaining may be compounded by the inclusion of bargaining representatives who are neither bargaining representatives under s.176)1)(a) or s.176(1)(b) of the FW Act but nominated as bargaining representatives by reason of written instrument made under s.176(c) of the FW Act (including for the purpose of s.176(4) of the FW Act). This general matter was raised obliquely by the AMIEU at the hearing (see Transcript PNS 1321-1330) and warrants some passing comment.

At s.176 of the FW Act, arguably in accord with the principles of freedom of association, bargaining representative status is extended to bargaining representatives who are employers and who are employee associations who have members who will be covered by a proposed agreement along with bargaining representatives who are nominated in writing. In a workplace environment in which there are multiple bargaining representatives (whose status as such is derived from different sources of authority and who have different representational tasks, in terms of the scope of their bargaining agenda and the range and type of employees they represent, may arise questions as to what obligations fall upon an employer (and the employee organisation bargaining representatives) in respect of such nominated bargaining representatives (who may be individual, self-nominated bargaining representatives or nominees of enclaves of employees within a wider workforce). Could bargaining orders under s.229 be made in circumstances where such bargaining representatives are not accorded by the employer the full entitlements, say, of an employee organisation bargaining representative (such as access to communications equipment and travel and paid days off)? Would an employee organisation who has such rights stipulated in an agreement happily have those rights extended to other bargaining representatives whose status is derived from written nomination only? Mirror issues, of course, may arise where an employee organisation is only a bargaining representative for a minority of employees but enjoys access to resources that a nominated bargaining representative (such as a broadly representative non-union consultative committee or otherwise) does not.

Further, do resource differences generally between bargaining representatives impact upon the bargaining process and give rise to good faith bargaining issues under s.228 of the FW Act? A case in point potentially arises in this matter where it is evident that the national employer (Woolworths) obliged all bargaining representatives to meet their own costs (including travel and time off) and to convene in Sydney on a particular day. (see Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-4) Nominated bargaining representatives may not be able to meet such bargaining demands and may be marginalised in the bargaining process as a result. It was not an issue, I should add, to which Woolworths, by its own admission had applied itself, and in any event the AMIEU did not press it with any vigour.

The answer to such questions may reside in the extent to which the employer is able to engage the nominated bargaining (relative to the scale of their representative status and bargaining agenda) on terms that accord with the good faith bargaining requirements and which do not risk marginalising un-resourced nominated bargaining representatives.

Arguably a more complex question arises, however, as to the nature of the reciprocal relations between employer and employee organisation bargaining representatives and (self) nominated individual and enclave-based bargaining representatives in the bargaining process. As discussed above, all such bargaining representatives must bargain with one another in terms consistent with s.228 of the FW Act, regardless of the scale of their bargaining agenda and representative role.

In the current case, an employee organisation with membership representing approximately 1.0% of the total non-salaried workforce in Woolworths’ supermarkets nationally has made demands in relation to good faith bargaining and sought scope orders which have impacted significantly upon the bargaining process.

Issues as to the impact of bargaining representatives on the bargaining process may be dealt with by way orders made under s.229 of the FW Act, having particular regard to the availability of orders of the kind provided for at s.231(2)(d) and s.231(3)(a)(ii) of the FW Act. But it will not always be immediately apparent that a balance can be readily struck between the giving effect to reasonably based representational interests and the efficacy of the bargaining process itself. Equally so, however, the extent to which such issues might arise might depend upon the extent to which the representational forces in any given workplace are centrifugal or centripetal.

 68   See Exhibit Woolworths 3

 69   Transcript of Proceedings of the hearing on 22 October 2009 at PN 665 - 670

 70   Transcript of Proceedings of the hearing on 22 October 2009 at PN 665 - 668

 71   Transcript of Proceedings of the hearing on 23 October 2009 at PN 818-819

 72   See for example clause 1.2.1(d) of the proposed national agreement as contained in the Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-10

 73  Transcript of Proceedings of the hearing on 22 October 2009 at PN 671

 74   See Appeal by Liquor, Hospitality and Miscellaneous Union against decision of O’Callaghan SDP of 19 August 2009 [[2009] FWA 101] – Re: Coca-Cola Amatil (Aust) P/L[2009] FWAFB 668 (28 October 2009)

 75  AMIEU Submissions in respect of the Modern Retail Industry Award dated 1 August 2008

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