Dion Herewini v Woolworths Group Limited

[2024] FWC 1087

[2024] FWC 1087

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s.739—Dispute resolution

Dion Herewini

v

Woolworths Group Limited

(C2024/1027)

COMMISSIONER HUNT BRISBANE, 29 APRIL 2024

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

1. On 21 February 2024, Mr Dion Herewini made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with clause 9.1 of the Woolworths Group Limited Brisbane Regional Distribution Centre Enterprise Agreement 2021 (the Agreement). Woolworths Group Limited is the Respondent to this application (the Respondent).

1. Mr Herewini works for the Respondent at its Brisbane Regional Distribution Centre.

1. The Respondent has introduced a Coaching and Productivity Framework (Framework) at a number of its distribution centres across the country. In January 2024, Mr Herewini received a written warning in relation to his performance in respect of his productivity when measured against the Framework. He has raised a dispute with the Respondent and made the application to the Commission.

1. I listed the matter for a private conference on 15 March 2024. The matter did not resolve at conference, resulting in the matter being listed for arbitration. Directions were issued for the filing of evidence and submissions.  Mr Herewini is represented by the United Workers’ Union (UWU).

1. I was subsequently informed by the Respondent that a significant number of individual disputes have been raised by its employees.   

1. On 18 April 2024, I convened a conference in this matter with the parties. I was informed by the Respondent that there have been approximately 1,100 separate individual disputes (Disputes) notified to the Respondent across nine of the Respondent’s distribution centres nationally.

1. The Respondent advised that it was apparent to it that common issues would necessarily arise as between the issues in this matter and all (or many) of the new Disputes, including because it appeared that at the core of all Disputes was an objection to the Respondent's national rollout of the Framework.

1. Additionally, the Respondent expressed a concern that evidence which it would need to call in the present matter would inevitably be required to be called in other Disputes if they came before the Commission for arbitration under the relevant dispute resolution clauses in the applicable enterprise agreement, which differ depending on the distribution centre.

1. Finally, the Respondent expressed a concern that it was now clear that up to six witnesses would have to be called in the current proceedings and that it was unlikely to be able to be concluded in the one day allocated to the hearing on 16 May 2024.

1. The Respondent proposed a meeting at a senior level between the Respondent and the UWU as representative for Mr Herewini in this matter, and, as I am advised, many or all of the notifying employees in the Disputes, with a view to discussing and identifying issues which are common to the Disputes and to consult in relation to ways to ensure that the large volume of Disputes are managed efficiently, including insofar as they may eventually require arbitration in the Commission.

1. The UWU does not support the making of a recommendation, as it considers that only the present matter is before the Commission.  The UWU is not a party to the present matter, nor is the UWU a party to several enterprise agreements that contain dispute resolution clauses that are, or may be, applicable to resolving the disputes lodged with the Respondent.  The hearing of the present matter is now listed for 31 July 2024 – 2 August 2024.

1. Having regard to the fact that a large number of notified Disputes have now been notified to the Respondent, which have at least the potential to be related to each other and therefore to involve some common issues, I do see benefit in the course proposed by the Respondent. 

1. It is in the interests of all parties, given the UWU’s apparent representation in respect of many of the Disputes, and in the efficient administration of the Commission that discussions occur as proposed by the Respondent so that at the least the issue of common issues, and ways to ensure that the Disputes are managed efficiently, can be discussed.  With the Disputes across many sites, many enterprise agreements, and numerous states, it is important that the various UWU representatives across the various states become involved in the discussions in an efficient way (i.e. by both parties being represented by sufficiently senior representatives at the national level, supported by representatives from relevant states as required).

1. A meeting of the Respondent and the UWU can include a discussion in relation to the efficient disposition of these proceedings in light of the additional Disputes, including as to whether there is potential for consolidation of Disputes, representative proceedings or the separate determination of common issues. 

1. The Respondent has provided an oral undertaking that the status quo will remain in respect of Mr Herewini, and he will not be subject to further disciplinary proceedings in respect of the Framework until such time as this application is determined or otherwise agreed between the parties.  It is understood that the undertaking will not apply in relation to other genuine disciplinary processes which are unrelated to the Framework.

1. In light of these considerations, I have set new directions in this matter which will allow discussions with senior representatives of the Respondent and the UWU across the various states to take place and for the outcome of those discussions to be taken into account in the disposition of this matter. 

1. I recommend that in the time which is now available there be discussions at a senior level between the Respondent and the UWU in relation to all of the Disputes which are now on foot.

1. My expectation is that the discussions would include the identification of common issues and consideration of an efficient pathway for the Disputes to be resolved under the relevant dispute resolution clauses, or, failing resolution, by arbitration in a manner which maximises the efficient use of the parties' and the Commission's resources and avoids, to the extent possible, the multiple determination of common issues and the requirement for witnesses to give evidence on multiple occasions.

1. I ask the representatives to report back to me in writing, jointly if possible and otherwise individually, by no later than Friday, 17 May 2024 in relation to the outcome of these discussions, including as to whether the parties wish me to convene a further conference.

COMMISSIONER

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