Ms Zalak Parekh v Woolworths Group Limited T/A Woolworths
[2022] FWC 3195
•5 DECEMBER 2022
| [2022] FWC 3195 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Ms Zalak Parekh
v
Woolworths Group Limited T/A Woolworths
(C2022/6305)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 5 DECEMBER 2022 |
Alleged dispute about any matters arising under the Woolworths Supermarkets Agreement 2018
This Decision was originally made on an ex-tempore basis on transcript. In publishing these Reasons, I have taken the opportunity to revise same in accordance with the principles stated by Kirby J in Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 (at 229-230, including the authorities cited therein), and the New South Wales Court of Appeal in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 (at [193]-[195], including the authorities cited therein).
On 15 September 2022, Ms Zalak Parekh (Applicant), filed a Form F10 Dispute Application under the Woolworths Supermarkets Agreement 2018 (Agreement).
In her Application, the Applicant describes her dispute as follows:
“My store manager is trying to enforce the roster change without being mindful of my carers duty and Woolowrths Super Market Agreement- 2018 and she has provided me with 14 days notice. After 14 days, my new roster will come to effect on 19/9/2022 as per her notice and instruction.
I tries to explain my situation, get her to read section 9 and section 22.3 (Continuation of work) , that clearly states that – until the dispute is resolved team member’s roster will remain unchanged. And hence I informed her that I am not agreeging to her new roster change and its effective date (19/9/2022) . To which she said that she will not pay me for 10pm to 12.00 am. she is rigid and holding her ground with 14 days notice period.
My contracted roster – Thursday to Sunday – 7pm to 12.00am – 20 hours
Proposed roster by the store manager – Thursday to Sunday – 7pm to 10.00pm – 12 hoursAlmost $300 a week financially worse off + entitlements.”[1]
As an outcome to the dispute, the Applicant seeks the following relief:
“The resolution I am seeking from business is:
-I do not want to change my roster at all in the first place. I want to keep my 20 hours contract (Thursday to Sunday – 7 pm to 12am).
However, if that is not the option or possible at all. In an effort to be helpful to the business I want:
1. Partial Redanduncy: for the hours I am losing ie: 8 hours weekly. 8 weeks of pay and entitlements like long service leave, accrued annual leave etc
2. I want in writing from business that if in future business decide to change their trading hours to 11pm (partial reduncy for the deficit in hours) or 12am , then I want my contracted hours back as it is. Also, please let me know what to do or whom to see if business decides to change their trading hours till 7pm, 8pm or 9pm?”[2]
The Applicant’s employer, and the Respondent to the Application, is Woolworths Group Limited T/A Woolworths (Respondent). The Respondent says that there is no legitimate basis upon which the Commission would find that it has acted contrary to the terms of the Agreement, and otherwise opposes the relief sought by the Applicant.
Conciliation was unsuccessful in resolving the Application.
The parties agree that the Commission may arbitrate the subject matter of this dispute in accordance with the dispute term of the Agreement (clause 22), and s.739 of the Act. I concur with the position of the parties, and find that I am able to arbitrate the dispute.
On 26 October 2022, I conducted a determinative conference to resolve the dispute. At that determinative conference the Applicant appeared for herself, and Mr Albert Khouri, Senior Associate, Minter Ellison Lawyers, appeared for the Respondent. Parties to disputes under the Agreement are entitled to representation (legal or otherwise) as of right.
The Applicant filed written submissions, along with emails, correspondence and payslips.
The Respondent filed written submissions dated 12 October 2022, and relied upon the Witness Statement of Ms Samantha Read, Store Manager, Woolworths Wentworthville Store, dated 12 October 2022.
After conducting the determinative conference, I issued a decision on transcript. Set out following is that decision:
“Section 587 of the Act provides that:
The Fair Work Commission may dismiss an application if, relevantly, the application has no reasonable prospects of success.
None of the relief sought by the Applicant in this matter is relief that I am able to grant as a member of the Commission pursuant to the Act. In that sense, the Application has no reasonable prospects of success.
However, to further elaborate upon my determination to dismiss this Application under section 587(1)(c) of the Act, I relevantly point out that the Applicant accepts she is covered by the Woolworths Supermarkets Agreement 2018, and pursuant to clause 1.2 of that Agreement, she falls within the classification structure contemplated under the Agreement.
The Applicant, as far as I understand it, is a Team Member, Retail Employee, Level 1, per Appendix A of the Agreement. The employment contract between the parties is dated 1 May 2018. It's found at Annexure SR1 of the statement of Ms Read that's been filed in these proceedings.
Under the Hours of Work heading in that contract on page 10 of Ms Read's statement, it provides that the Applicant is employed on 20 hours per week averaged over a period of four weeks. The employment contract provides no guarantee of any particular shifts or shift loadings, penalties or rostering arrangements.
Clause 8.3 of the Agreement sets out rostering principles for part‑time team members. There's been no dispute or challenge by the Applicant that the rostering principles applying to part‑time team members have not been followed in respect of her roster.
What the Applicant says in this case is that she has an entitlement, which she refers to as either by way of contract or custom and practice, that she is entitled to be rostered from 7pm till 12 pm, Thursday to Sunday, as she has been doing these shifts essentially since the commencement of her employment. The difficulty with the Applicant's argument is that there is no contract before me in evidence that states that that is the case.
Turning to the provisions of clause 9.1 of the Agreement, it can be seen that the Agreement that applies to the Applicant contemplates that standard rosters will need to be changed. Whilst clause 9.1(a) provides that Woolworths must be mindful of a Team Member's needs, including family and carer's responsibilities and other relevant issues, being mindful does not create a requirement upon Woolworths not to change an employee's roster without agreement.
Indeed, the Agreement provides for two scenarios whereby rosters may be changed at the direction of Woolworths. Clause 9.1(c) provides that in the ordinary course Woolworths can give seven days' notice of a change to a standard roster as relevantly defined in the Agreement, or, by agreement, such period of notice can be less than seven days.
Clause 9.1 also provides at subclause (e), as Mr Khouri relevantly pointed out, for circumstances where there's a disagreement as to a proposed change to roster, whereby instead of seven days' notice, an employee is to be given 14 days' notice, and that during that time there will be discussions between the Team Member and Woolworths aimed at resolving the disagreement, or the disagreement can otherwise be referred to Commission, subject to the dispute procedure under clause 22 being followed.
Clause 9.1(c) and 9.1(e) of the Agreement are only conditioned upon there being relevant consultation about the making of a roster change.
The evidence is clear that there has been consultation, as set out in Ms Read's statement, both generally in relation to the roster changes, and specifically in relation to the Applicant (see paragraphs 33 to 64 of Ms Read's statement).
Whilst the Applicant before me today complains about an absence of consultation, she did not make any submissions to the effect that there would have been anything additional she wished to say if further consultation had occurred beyond the substantial consultation that's already occurred and set out in the evidence of Ms Read.
Having regard to the provisions of the Agreement and the requirements of s.739(5) of the Act, there's no basis upon which I might make an order for the Applicant to keep her current rostered hours, obtain a partial redundancy or obtain a guarantee of return to work if trading hours change.
The Applicant has been provided with various roster options as part of the consultation process. Those options are set out in Annexures SR8, SR9, SR10 and SR11 to Ms Read's statement, relevantly by of letters from Woolworths to the Applicant dated 15 September, 20 September and 23 September 2022.
Given that I'm unable to make an order of the kind that the Applicant seeks, I find that this Dispute Application has no reasonable prospects of success, including for the reasons that I've have already set out.
Prior to dismissing the Application, I would make the recommendation to the Applicant that she accept one of the changes to the roster as contemplated by Woolworths as set out in the correspondence that's already been provided to her.
Otherwise, the Application is dismissed pursuant to s.587(1)(c) of the Act.”
Further to the foregoing reasons, an Order dismissing the Application was published on 26 October 2022 (PR747268).
DEPUTY PRESIDENT
Appearances at hearing:
Ms Zalak Parekh (Applicant), appeared for herself.
Mr A Khouri, Senior Associate, Minter Ellison lawyers, appeared for the Respondent.
[1] See Item 2.1 of the Dispute Application.
[2] See Item 3.1 of the Dispute Application.
Printed by authority of the Commonwealth Government Printer
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