Mathew McGuinness v Woolworths Group Ltd T/A Woolworths - [2022] FWC 727

[2022] FWC 727

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Mathew McGuinness
v

Woolworths Group Ltd T/A Woolworths

(C2021/8109)

COMMISSIONER MCKINNON

SYDNEY, 6 MAY 2022

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – proposed roster change – consultation under the Woolworths Supermarkets Agreement 2018.

Mathew McGuinness is a baker. He works night shifts for Woolworths Group Limited at its Moonee Ponds supermarket in Melbourne, Victoria. Mr McGuinness has been employed by Woolworths for approximately 8.5 years.

In 2019, Woolworths introduced its “Right Hours, Right Time” (RHRT) initiative. The objectives of RHRT include aligning hours of work more closely with store opening times and achieving greater national consistency in store working hours. For stores with a full production bakery, this requires the first baker to start at 3.00am, with staggered start times for later bakers. A full range of bakery products must be on show by 9.00am each day, and the bakery closedown completed by 6.00pm.

Mr McGuinness is currently the ‘first baker’, starting work at 10.00pm and working through until 7.00am or 9.00am, not including breaks. The RHRT initiative requires him to start work at 3.00am. Mr McGuinness does not want to change his hours of work.

The proposal to change Mr McGuinness’s hours of work was first made by Woolworths in 2019. Mr McGuinness resisted and the matter was not pursued. In or around July 2021, the proposal was revived again. Mr McGuinness remains firmly opposed to any change in his working hours and any related loss of pay. He has applied to the Commission to deal with a dispute under the Woolworths Supermarkets Agreement 2018 (the Agreement).

There are three questions for determination, including three sub‑questions. These, and my answers, are set out below. My reasons follow.

Question 1: Is Woolworths required to offer Mr McGuinness the “combined duties role” that was discussed between the parties in an effort to resolve the dispute?

Answer: No.

Question 2: Having regard to the history of this dispute, is Woolworths entitled to proceed with a change of roster for Mr McGuinness that requires him to start work at 3.00am?

Answer: Yes.

Question 2(a): Was Woolworths mindful of his needs when contemplating the roster change as required by clause 9.1(a) of the Agreement?

Answer: Yes.

Question 2(b): Did Woolworths comply with its consultation obligations under the Agreement in relation to the proposed roster change?

Answer: Yes.

Question 2(c): Do any terms of the Agreement that were the subject of this dispute prevent Woolworths from proceeding with the proposed roster change?

Answer: No.

Question 3: If the answer to question 1 is no, what further steps does Woolworths need to take in order to implement its proposed roster change?

Answer: None. However, I recommend that Woolworths:

1. ensure that the date of the roster change is no less than 14 days from the date of this decision, and
2. pay Mr McGuinness the difference between his ordinary weekly earnings prior to the roster change and his ordinary weekly earnings after the roster change for 8 weeks from the date of the roster change.

The Agreement

The Agreement is a comprehensive enterprise agreement covering Woolworths and its unsalaried employees in retail supermarket operations. The Agreement covers the Shop, Distributive and Allied Employees Association (SDA), the Australasian Meat Industry Employees Union and the Australian Workers’ Union.

Full time and part time employees who are employed under the Agreement have an agreed standard roster (clause 3.1). “Standard roster” is defined in Appendix K to the Agreement and means a “full-time or part-time team member’s agreed standard roster arrangements, being the days and times when the team member is required to work”. Rostering principles govern the standard roster (clause 8), including in relation to minimum and maximum hours of work and breaks between shifts.

Clause 9.1 of the Agreement deals with changes to standard rosters. It provides:

“9.1. Change of Standard Roster
a. At times Woolworths will need to make changes to standard rosters. When contemplating such roster changes, Woolworths will be mindful of the team member’s needs, including family or carer responsibilities, secondary and tertiary study commitments, religious observance, safe transport home, and any genuine organised sporting commitments which the team member is actively competing in.

b. Woolworths will not frequently change a team member’s standard roster.

c. Woolworths will give the team member at least 7 days’ notice of a change to their standard roster, however by agreement between a team member and Woolworths, a roster may be changed on less than 7 days’ notice.

d. Woolworths will consult with a team member about a proposed standard roster change by providing the impacted team member with information about the proposed change and inviting the team member to provide their views on the impact of the proposed change. Woolworths’ consultation obligations are set out in clause 9.2 of this Agreement.

e. If a team member disagrees with a proposed change to their standard roster, they will be given at least 14 days’ notice instead of 7 days’ notice, and during that time there will be discussions between the team member and Woolworths aimed at resolving the dispute about the roster change in accordance with the dispute resolution procedure in clause 22. In the meantime, the team member’s roster remains unchanged until the dispute is resolved.

f. Where a team member’s roster is changed for a once only event and the roster reverts to the previous pattern the following week, any extra work done by the team member as a result of the roster change will be paid at overtime, except where the change is by mutual agreement.

g. Standard rosters will not be changed for the purpose of avoiding any entitlements under this Agreement.

h. Any team member who is eligible to do so may make a request for flexible working arrangements as provided for in the NES.”

Clause 9.2 of the Agreement provides for consultation about roster changes but does not meet the requirements of section 205 of the Fair Work Act 2009 (Cth) (‘the Act’).[1] Instead, the model consultation term in Schedule 2.3 to the Fair Work Regulations 2009 applies as a term of the Agreement.[2]

Relevantly, the model term provides as follows:

“

This term applies if the employer:

….
proposes to introduce a change to the regular roster or ordinary hours of work of employees.

…

For a change referred to in paragraph (1)(b):

the employer must notify the relevant employees of the proposed change; and
subclauses (11) to (15) apply.

The relevant employees may appoint a representative for the purposes of the procedures in this term.

a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.

As soon as practicable after proposing to introduce the change, the employer must:

discuss with the relevant employees the introduction of the change; and
for the purposes of the discussion – provide to the relevant employees:

all relevant information about the change, including the nature of the change; and
information about what the employer reasonably believes will be the effects of the change on the employees; and
information about any other matters that the employer reasonably believes are likely to affect the employees; and

invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees.

In this term:
relevant employees means the employees who may be affected by a change referred to in subclause (1).”

Clause 9.3 of the Agreement deals with night work roster changes for bakery and replenishment employees. It provides as follows:
“a. Where a team member is a bakery production team member who works night work, or a replenishment team member who works night work (but who is not a shiftworker), this clause will apply.
b. If a team member’s roster is changed and the change reduces or eliminates the team member’s night work, and that reduction or elimination of night work results in a decrease in the team member’s total ordinary weekly earnings, then:
i. Woolworths will pay the team member the difference between their ordinary weekly earnings prior to the roster change and their ordinary weekly earnings after the roster change for a period of 8 weeks from the date of the roster change (and Woolworths may elect to pay this payment in a single lump sum instead of over 8 weeks); and
ii. If the team member’s roster change results in the same or higher ordinary weekly earnings, then no additional payment is payable by Woolworths.
c. This clause does not apply to shiftworkers or to any team member who voluntarily converts to becoming a shiftworker.
d. For the purposes of this clause:
i. Bakery production team member means a team member whose primary duties are baking production and/or pastry cooking.
ii. Replenishment team member is a team member whose primary duties are replenishing and maintaining stock (sometimes referred to as night fill).
iii. Night work means ordinary hours of work between 10pm and 6am.”

Clause 11 of the Agreement regulates shiftwork. A shiftworker is a team member specifically employed as a shiftworker. It is not clear whether Mr McGuinness meets this description. His contract of employment is not in evidence and no party gave direct evidence on the question. It is relevant because of clause 9.3 of the Agreement, which is stated to apply to bakery production team members who work night work (at clause 9.3(a)) but not shiftworkers (at clause 9.3(c)). Unhelpfully, “bakery production team member” is further defined in clause 11.4 as a “shiftworker who is engaged primarily in the baking department and is producing baked goods”.

If Mr McGuinness is a shiftworker, his night shift penalty will reduce by 17.5% with the proposed change of roster. When the rate reduction takes effect depends on how the 8‑week wage maintenance provision at clause 9.3(b) is interpreted in relation to bakery production team members. This is not a matter before me and I do not decide it. However, and because it seems likely that the provision was intended to cover roster changes of the kind now proposed for Mr McGuinness, clause 9.3(b) informs my later recommendation in relation to question 3.

Other potentially relevant terms of the Agreement include clause 7, which provides for meal breaks of between 30-60 minutes and clause 11.6(b), which restricts the ability to roster shiftworkers to work both shiftwork and non-shiftwork in the same week.

Clause 22 of the Agreement provides for the resolution of any dispute between an employee and Woolworths, including disputes about matters arising under the Agreement and the National Employment Standards. The Commission has power to deal with the dispute, firstly by conciliation and then, if not resolved and a party so requests, by arbitration.

Clause 23 of the Agreement provides for individual flexibility arrangements, including about arrangements for when work is performed. Separately, section 65 of the Act permits eligible employees who are parents of a child of school age or younger to request flexible working arrangements. These requests can only be refused on reasonable business grounds. Mr McGuinness can make a request under section 65 because he has been continuously employed for more than 12 months and is a parent of school age children. At the time of hearing, no such request had been made.

Question 1: Is Woolworths required to offer Mr McGuinness the “combined duties role” that was discussed between the parties in an effort to resolve the dispute?

As earlier indicated, Mr McGuinness and Woolworths have been in dispute about the proposed change of roster for some time. Efforts to resolve the dispute have involved ongoing discussion between Woolworths and the Retail and Fast Food Workers Union (RAFFWU) on behalf of Mr McGuinness.

On 27 July 2021, Woolworths asked Mr McGuinness whether he would consider a ‘combined duties role’ in potential resolution of the dispute. The proposal would have seen Mr McGuinness retain his current hours of work, performing a combination of non-bakery tasks (from 10.00pm until 3.00am) and bakery tasks (from 3.00am until the end of shift).

The option was considered favourably, albeit briefly, by both parties. On 28 July 2021, notes recording a conversation between Woolworths and RAFFWU confirm advice from Woolworths that the option was not sustainable and that it would continue exploring the option. The notes also record RAFFWU acknowledging the proposal as not a firm commitment, by saying, in words to the effect, that Woolworths is “not saying that its something you’re going to do”. I find that the notes accurately record this aspect of the discussion. The comment attributed to RAFFWU only makes sense as a comment from a representative of Mr McGuinness.

In a meeting on 12 August 2021, RAFFWU advised Woolworths that Mr McGuinness would accept the combined duties proposal on the basis that the bakers’ trade rate of pay would continue to apply. Woolworths countered by saying the bakery rate would not be paid for nightfill duties. It also raised concern about finding a part-time baker to fill the gap in bakery hours. If finding a part-time baker was not possible at the Moonee Ponds store, Woolworths indicated that the combined duties proposal might work at another store. RAFFWU responded, both willing to discuss work at another store and optimistic that firstly, a part-time baker might be found and secondly, that the option could be implemented.

On 17 August 2021, the combined duties proposal met its end. Further correspondence between the parties confirmed that no agreement had been reached in relation to Mr McGuinness and the dispute would be escalated. Woolworths restated its requirement for Mr McGuinness to commence work at 3.00am while maintaining its commitment to exploring other options.

On the evidence, the combined duties proposal never attained status above a mere option under consideration. There was no offer and acceptance; no binding agreement between the parties. There was no variation to the contract of employment. There is no obligation in the Agreement to create or implement such a role. After consideration, Woolworths decided not to offer the option to Mr McGuinness for operational reasons, including the not insignificant difficulty of finding another baker to work hours lost to the bakery if the proposal went ahead. This was a decision Woolworths was entitled to make. Woolworths is no more bound to implement the combined duties proposal as it is to any other option that was under consideration but ultimately rejected either by it or by Mr McGuinness.

For these reasons, the answer to question 1 is ‘No’.

Question 2: Having regard to the history of this dispute, is Woolworths entitled to proceed with a change of roster for Mr McGuinness that requires him to start work at 3.00am?

Woolworths has a right under the Agreement to change the standard roster of an employee. The right exists subject to appropriate notice and consultation, as well as the resolution of any dispute about the proposed change. Further, it is a right that exists alongside the right of employees to request flexible work arrangements, which can only be refused on reasonable business grounds.

2(a) Was Woolworths mindful of his needs when contemplating the roster change as required by clause 9.1(a) of the Agreement?

Woolworths was mindful of Mr McGuinness’ needs when contemplating the roster change as required by clause 9.1(a) of the Agreement. Mindful, in this sense, means bearing in mind; considering; paying attention to the needs of Mr McGuinness while thinking about the roster changes it proposed. Woolworths clearly thought about and considered the specific needs of Mr McGuinness throughout the period from July to November 2021 in relation to the proposed roster change.

Firstly, Mr McGuinness needed his partner’s TAFE studies to be accommodated. Woolworths considered what information it had about this need, which potentially affected his attendance at work on Mondays and Tuesdays. Mr McGuinness was not rostered to work on Tuesdays and Woolworths reasonably took the view that its proposed roster change would not interfere with TAFE studies on Tuesdays. In relation to Mondays, Woolworths put forward options including:

a.alternative tasks or different days or hours of work at the same store,
b.the same or alternative work at a different store, and
c.a longer meal break on Mondays so that Mr McGuinness could leave work, take his children to school and return to work.

Secondly, Mr McGuinness needed to get his children ready for school and take them to school in the mornings (partly a ‘need’ and partly a ‘want’, as his partner was also available to take the children to school). Woolworths considered the matter and proposed specific measures to assist Mr McGuinness, including:

a.alternative work at the same store,
b.the same or alternative work at a different store, and
c.a longer meal break on Mondays so that Mr McGuinness could leave work, take his children to school and return to work.

Thirdly, Mr McGuinness was unable to obtain safe transport to work at 3.00am in the morning, because he does not drive and there were no public transport options at that time. To address the need of Mr McGuinness to get to work safely, Woolworths considered options including:

a.alternative work or hours of work at the same store,
b.the same or alternative work or hours of work at a different store, and
c.an additional (short) shift so that Mr McGuinness could earn additional income to cover the cost of a taxi or ride share service to work.

Fourthly, Mr McGuinness needed to maintain his level of income because he was the sole income earner for a family of four. Woolworths proposed rostering options that would allow Mr McGuinness to maintain or increase his earnings. It provided calculations for different roster proposals, before and after tax.

Fifthly, Mr McGuinness needed an outcome that would allow him to retain his trade as a baker. Woolworths considered options to accommodate this need, including the combined duties role and his continuing employment as a baker either at Moonee Ponds or another store with better transport options.

Finally, Mr McGuinness wanted to maintain the life he had built over many years by working the same or similar hours on night shift for Woolworths. Woolworths proposed alternatives for Mr McGuinness that would allow him to retain the same hours of work while performing different tasks.

The six needs above are those that were addressed directly by Woolworths in negotiations with Mr McGuinness about the proposed roster change. When the dispute was later filed in the Commission, a further allegation was made that Woolworths was not mindful of, and did not consult with Mr McGuinness about, the COVID‑19‑related implications of the proposed change. It is uncontroversial that Woolworths has an obligation to provide a safe workplace and to consult with its workforce through established consultation mechanisms over measures to ensure the safety of employees during the COVID-19 pandemic.

There is very little evidence before me about the consultation processes among Woolworths and its employees generally in relation to the COVID-19 pandemic. What evidence there is tends to indicate that significant steps have been taken by Woolworths to manage COVID‑19-related risks since the onset of the pandemic. These include instore signs to guide customers about shopping in a COVID-safe way, regular cleaning, wearing of high-visibility and personal protective equipment, development of a COVIDSafe Handbook in February 2021 (revised in February 2022) specifically for store employees such as Mr McGuinness, as well as regular team discussions about safe working practices.

The reality is that COVID safety was not a focus of the extensive dialogue between Woolworths and Mr McGuinness in relation to the roster change. This is most likely why the evidence does not traverse the issue in any substantive way. The dispute raised by RAFFWU on behalf of its members including Mr McGuinness on 8 July 2021 was described in this way:

“In addition to the roster disagreement, the dispute relates to the application by Woolworths Group of clauses 9.1(a), 9.1(d) and clauses [10] to [15] of Schedule 2.3 of the Agreement. In short, the dispute relates to the failure by Woolworths Group to consult over the proposed roster change (including that the true rationale of the proposed roster change has not been disclosed being an attempt to avoid penalty rates) and over the roster disagreement itself.”

The dispute was expanded in the Form 10 application to the Commission to include the terms of clause 9.1(e) of the Agreement and an alleged failure to consult over the health and safety implications of the change. Until this time, consultation about health and safety had not formed part of the dispute between the parties.

Over the period from March to November 2021, specific requests were made by Woolworths to Mr McGuinness for information about his needs and other issues with the proposed roster change. These requests elicited responses dealing with the matters discussed from paragraphs [24] to [31] above. COVID safety was not one of these. When it was raised as an issue on behalf of Mr McGuinness on 12 August 2021, it was at a time and in the context of RAFFWU’s understanding that the dispute had been resolved. Mr McGuinness confirmed this in the hearing, explaining that his concern was “about COVID and spending more time around contact with customers while the store is open.” As Mr McGuinness noted, “It had nothing to do with 3am starts. It was just a general thing. Raised it because it was a health issue if I was around people.”

There is a relationship between the proposed roster change and the increased likelihood of Mr McGuinness being around people while working during hours when the store was open. While it was not a matter discussed directly between the parties, I am satisfied that Woolworths was mindful of this issue, including in relation to the proposed roster change. It had comprehensive COVIDsafe plans in place, including the requirement for employees to wear masks and practice social distancing. Woolworths did not consider that Mr McGuinness’s exposure to COVID-19 was likely to change in any significant way. This was a reasonable belief. Even after the proposed roster change, Mr McGuinness was to remain working in the bakery with limited direct interaction with customers. To the extent that such interactions were required, they were already being managed by in-store guidance for customers and directions to employees, spelt out in detail in its COVIDSafe Plan.

2(b) Did Woolworths comply with its consultation obligations under the Agreement in relation to the proposed roster change?

It is well settled that the purpose of consultation about industrial matters is to give employees an opportunity to influence their employer in decision-making processes, so that they are not denied the possibility of a different outcome. There is no additional duty to ensure employees take advantage of the opportunity provided.

The various consultation obligations of Woolworths and my findings in relation to those obligations are set out in the table below.

Consultation obligation	Finding
Consultation obligations under clause 9.1 of the Agreement
At times Woolworths will need to make changes to standard rosters. When contemplating such roster changes, Woolworths will be mindful of the team member’s needs, including family or carer responsibilities, secondary and tertiary study commitments, religious observance, safe transport home, and any genuine organised sporting commitments which the team member is actively competing in.	For the reasons above, Woolworths was mindful of Mr McGuinness’s needs when contemplating the proposed roster change. This included his needs in relation to family responsibilities, his partner’s studies and safe transport to work.
Woolworths will not frequently change a team member’s standard roster.	There has been no change to the standard roster of Mr McGuinness for many years.
Woolworths will give the team member at least 7 days’ notice of a change to their standard roster, however by agreement between a team member and Woolworths, a roster may be changed on less than 7 days’ notice.	Woolworths gave 14 days’ notice of the proposed roster change to Mr McGuinness three times. The last notice was given to Mr McGuinness on 29 November 2021, with the proposed change to take effect from 13 December 2021. The change has not been implemented pending the resolution of this dispute.
Woolworths will consult with a team member about a proposed standard roster change by providing the impacted team member with information about the proposed change and inviting the team member to provide their views on the impact of the proposed change. Woolworths’ consultation obligations are set out in clause 9.2 of this Agreement.	See below. Mr McGuinness was given a “VOC Handout” about the roster change which was then discussed on 26 March 2021. The change was discussed regularly between Woolworths and Mr McGuinness or his representative over the period from July to November 2021. Letters setting out the detail of the proposed new roster including revised days and hours of work and when the change would take effect were given to Mr McGuinness on 4 July 2021, 5 October 2021 and 29 November 2021. Mr McGuinness was invited to provide his views about the impact of the proposed change on 26 March 2021, 8 July 2021, 15 July 2021, 27 July 2021, 28 July 2021, 15 October 2021, 19 October 2021, 25 October 2021, 5 November 2021, 15 November 2021 and 18 November 2021.
If a team member disagrees with a proposed change to their standard roster, they will be given at least 14 days’ notice instead of 7 days’ notice, and during that time there will be discussions between the team member and Woolworths aimed at resolving the dispute about the roster change in accordance with the dispute resolution procedure in clause 22. In the meantime, the team member’s roster remains unchanged until the dispute is resolved.	Notice of a change to the standard roster was given to Mr McGuinness on 4 July 2021. The parties then made efforts to resolve the dispute, both within the following 14 days and after that time. A second notice of change to the standard roster was given to Mr McGuinness on 5 October 2021. The parties then met on 15 October 2021 to discuss the matter and exchanged further correspondence over subsequent weeks. On 29 November 2021, the final notice of change to the standard roster was issued. The notice was to take effect from 13 December 2021. However, this dispute was notified to the Commission the day after notice was given and no change has been implemented pending the resolution of this dispute.
Where a team member’s roster is changed for a once only event and the roster reverts to the previous pattern the following week, any extra work done by the team member as a result of the roster change will be paid at overtime, except where the change is by mutual agreement.	This obligation is not relevant because the proposed roster change is a permanent change.
Standard rosters will not be changed for the purpose of avoiding any entitlements under this Agreement.	The purpose of the proposed roster change is to align Mr McGuinness’s roster with Woolworths’ operational needs as described in the RHRT rostering principles. This is a nationwide initiative that applies to all team members. The penalty applicable to night work will be reduced if the change proceeds, but that is a consequence of implementing the RHRT policy, rather than its purpose.
Any team member who is eligible to do so may make a request for flexible working arrangements as provided for in the NES.”	At the time of hearing, Mr McGuinness had not made a request for flexible working arrangements
Consultation obligations under the model consultation term (Schedule 2.3 to the Act)
Applies if the employer proposes to introduce a change to the regular roster or ordinary hours of work of employees.	The model consultation term applies because Woolworths proposes to introduce a change to Mr McGuinness’s standard roster.
The employer must notify the relevant employees of the proposed change.	Mr McGuinness was first notified of the proposed change in 2019, and then again on 26 March 2021 (in a discussion with Ms Bessell) and in early July 2021 (by Ms Rowland).
The relevant employees may appoint a representative for the purposes of the procedures in this term.	Mr McGuinness appointed RAFFWU as his representative in relation to the proposed roster change.
The employer must recognise the representative	Woolworths has recognised RAFFWU as the representative of Mr McGuinness throughout its dealings in relation to the roster dispute.
As soon as practicable after proposing to introduce the change, the employer must:	The change was first floated in 2019. Documents were provided to employees and the SDA and consultation occurred. On 26 March 2021, the proposal was revived again in relation to Mr McGuinness. The first proposal to introduce the change was made on 2 July 2021, when Mr McGuinness was notified in a team meeting that there would be a change to his standard roster.
· discuss with the relevant employees the introduction of the change	On 26 March 2021, Ms Bessell discussed the introduction of the change with Mr McGuinness. Ms Rowlands and a representative from the SDA were also present. On 2 July 2021, Mr Richard Reid (Assistant Store Manager) and Ms Natalie Healy (Field Support Lead) met with employees in the Moonee Ponds store including Mr McGuinness, to explain the proposed roster changes and issue roster change letters. Mr McGuinness told them he would not move to 3.00am starts, that RAFFWU was representing him and he “didn’t need to say any more”.
· provide to the relevant employees:
o all relevant information about the change, including the nature of the change	Mr McGuinness was given a “VOC Handout” about the roster change which was then discussed on 26 March 2021. The change was discussed regularly between Woolworths and Mr McGuinness or his representative over the period from July to November 2021. Letters setting out the details of the proposed new roster including revised days and hours of work and when the change would take effect were given to Mr McGuinness on 4 July 2021, 5 October 2021 and 29 November 2021.
o information about what the employer reasonably believes will be the effects of the change on the employees	The letters notifying the change of roster set out the effect of the change on Mr McGuinness – that is, revised hours of work. There was ongoing discussion about the effect of the proposed change in the context of proposed solutions to resolve the dispute, including estimated changes in rates of pay, hours of work, and how a gliding roster would work.
o information about any other matters that the employer reasonably believes are likely to affect the employees	Woolworths did not believe the change would affect the safety of Mr McGuinness in relation to the COVID-19 pandemic. This was a reasonable belief because it had established processes and procedures for managing COVID safety in place and the proposal would not have seen any change to Mr McGuinness’s duties in the bakery department. In his role, Mr McGuinness had limited interaction with customers in store, and was required to wear a mask and practice social distancing.
o invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities.	Woolworths invited Mr McGuinness and/or RAFFWU on his behalf to provide views about the impact of the change on 26 March 2021, 8 July 2021, 15 July 2021, 27 July 2021, 28 July 2021, 15 October 2021, 19 October 2021, 25 October 2021, 5 November 2021, 15 November 2021 and 18 November 2021. Views about the effect of the change were received from Mr McGuinness and/or RAFFWU on 26 March 2021, 14 July 2021, 15 October 2021, 10 November 2021 and 19 November 2021.

I find that Woolworths has complied with its consultation obligations under the Agreement in relation to the proposed roster change. The failure of the parties to produce a different outcome in this case can largely be attributed to the reluctance of Mr McGuinness to meaningfully engage in the consultation process. This is a pity, because in my view a more cooperative approach likely would have led to a solution that worked for both parties.

2(c) Do any terms of the Agreement that were the subject of this dispute prevent Woolworths from proceeding with the proposed roster change?

Terms of the Agreement that were the subject of this dispute are clauses 9.1(a), 9.1(d), 9.1(e) and clauses [10] to [15] of Schedule 2.3 to the Agreement.

Mr McGuinness also seeks to rely on clause 2.2 of the Agreement, and specifically clause 2.2(b), which provides:

“Woolworths is committed to ensuring, so far as is reasonably practicable, the health and safety of team members while at work, and also that its business doesn’t create risks to others (including other workers and customers). This includes the physical workplace (including entry and exit, and during renovations), the equipment team members use and the processes they follow. Woolworths must consult with team members and their relevant trade union, identify and manage risks, and provide relevant safety training for team members.”

In essence, clause 2.2 of the Agreement reframes the continuing obligation on Woolworths under model work health and safety legislation to ensure the safety of employees and others in the workplace. It is submitted that clause 2.2 creates an obligation that sits above other desires of the business, and that despite this obligation, Woolworths chose not to consult about, minimise or eliminate the risk of the pandemic to Mr McGuinness. Instead, its changes increased the risk to him. I reject these submissions.

Employers have significant obligations in relation to ensuring the health and safety of their employees, and they have a myriad of other competing obligations. The task is to balance and meet these obligations in a lawful way. Even on the little evidence before me, the notion that Woolworths turned a blind eye to the pandemic and its likely effect on employees is unsustainable.

As noted above, the fact that the evidence touches only lightly on pandemic-related interactions between Woolworths and Mr McGuinness reflects simply that COVID safety was not what the parties understood their dispute to be about. Further, the submission that Woolworths made changes that increased safety risks to Mr McGuinness is misconceived. No such change has yet been made.

Given the paucity of evidence on the issue, I am not prepared to find that Woolworths did not comply with clause 2.2 of the Agreement in relation to Mr McGuinness. Further, I am not satisfied that proceeding with the roster change will put Woolworths in breach of its obligations under clause 2.2 to provide a safe workplace for Mr McGuinness. Woolworths has a COVIDSafe Plan in place to manage the risks of work in the bakery department. Mr McGuinness can adopt the measures in this plan to protect his safety and that of others while at work. There will most likely be more people in the supermarket during his working hours, but his risk of exposure can also be managed by his primary duties remaining in the bakery department, out of close proximity to customers. If concerns arise from time to time that the COVIDSafe Plan is inadequate to ensure his safety, Mr McGuinness can raise these with his supervisor or other established safety-reporting mechanisms so that they can be considered and addressed.

For these reasons, clause 2.2 of the Agreement does not prevent Woolworths from proceeding with the roster change. As Woolworths has complied with clauses 9 of the Agreement and Schedule 2.3 to the Act, they are also not a barrier to implementation of the change. No other terms of the Agreement are relied on in these proceedings as a bar to the introduction of the roster change once the dispute is resolved by this decision.

Question 3: What further steps, if any, does Woolworths need to take in order to implement its proposed roster change?

Woolworths has met its obligations under the Agreement in relation to the proposed roster change. It can proceed to change the roster of Mr McGuinness in a way that is consistent with the Agreement and his contract of employment.

The last notice of roster change contained two options for Mr McGuinness. While the mandatory 14 day notice period of roster change has been given to Mr McGuinness, I recommend that if Woolworths wishes to proceed with the roster change, it provide a further notice period of at least 14 days of the actual roster Mr McGuinness will be required to work. This will allow additional time to make any arrangements that are necessary to accommodate the new roster from commencement.

I also recommend (without deciding) that the wage maintenance provision in clause 9.3 of the Agreement be applied to Mr McGuinness in relation to the roster change to reduce the financial impact of the change on his family.

The dispute is determined accordingly.

COMMISSIONER

Appearances:

J Cullinan of RAFFWU for the applicant.
R Preston of Counsel for the respondent.

Hearing details:

2022.
Sydney (by video):
March 15.

Final written submissions:
March 16.

[1] Woolworths Supermarkets Agreement 2018 [2019] FWCA 7 at [193] and [196].

[2] Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 206.

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