Retail and Fast Food Workers Union Incorporated v Factory X Pty Ltd T/A Dangerfield & Princess Highway

Case •

[2024] FWC 975

•

16 APRIL 2024
[2024] FWC 975

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.236 - Application for a majority support determination

Retail and Fast Food Workers Union Incorporated
v

Factory X Pty Ltd T/A Dangerfield & Princess Highway

(B2023/1204)

DEPUTY PRESIDENT MASSON

MELBOURNE, 16 APRIL 2024

Application for a majority support determination.

Introduction

  1. The Retail and Fast Food Workers Union Incorporated (RAFFWU Inc.) made an application pursuant to s.236 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (Commission) on 1 November 2023 for a majority support determination (MSD) concerning employees employed by Factory X Pty Ltd (Factory X) in its Dangerfield and Princess Highway stores in Victoria. RAFFWU Inc. presented a redacted petition of Factory X employees engaged in Victoria to support their application. The application for the majority support determination is opposed by Factory X on a number of grounds which are set out and considered below.

  1. The application was initially listed for a mention/conference conducted on 9 November 2023 arising from which it was agreed that RAFFWU Inc. would provide the unredacted petition to the Commission on a confidential basis. It was also agreed that Factory X would provide to the Commission on a confidential basis a list of employees engaged by it in Dangerfield and Princess Highway store outlets in Victoria. After reviewing the unredacted petitions and the list of employees employed by Factory X in the period from 2-29 October 2023, correspondence was sent by the Commission to the parties on 21 November 2023 which relevantly stated that;

“………………

The Deputy President has now reviewed both the petition lists provided by RAFFWU and the Respondent’s list of employees engaged in the relevant retail outlets in the period from 2-29 October 2023. He advises the following in advance of the Mention listed for Thursday 23 November 2023;

1.RAFFWU provided a series of petition sheets that included 86 discreet names/signatures.

2.The Respondent produced a list of employees that included a total of 154 names.

3.Of the 86 names/signatures appearing on RAFWWU’s petition lists, 82 of those names/signatures were able to be matched to names appearing on the Respondent’s list of employees.”

  1. At a further mention/conference conducted on 23 November 2023, Factory X confirmed that it remained opposed to the application on a number of grounds. As the matter was unable to be resolved through conciliation, directions were issued on 24 November 2023 for the filing of material by both parties and the matter was listed for hearing on 22 & 23 January 2023.

  1. Factory X have not yet agreed to bargain or initiated bargaining for an agreement. It opposes the application for the MSD on the following grounds;

Ground 1:

For the purposes of s. 237(2)(a) of the Act the Commission cannot be satisfied that a majority of the employees employed at the relevant time who will be covered by the proposed agreement wish to bargain.

Ground 2:

For the purposes of s 237(2)(c) of the Act the Commission cannot be satisfied that the group of employees who will be covered by the agreement, were fairly chosen.

Ground 3:

For the purposes of s 237(2)(d) of the Act the Commission cannot be satisfied that it is reasonable in all the circumstances to make the determination.

  1. At the hearing on 22 January 2024, Mr J Cullinan represented RAFFWU Inc. and called and/or relied on the evidence of the following witnesses;

  • Mon Mulveney – Organising and Campaigns Officer for RAFFWU Inc.

  • Michael Johnstone – Organising and Campaigns Officer for RAFFWU Inc.

  • Evelina Tzimas – Factory X employee

  • Natalie Butler – Factory X employee

  • Jaslyn Tan – Factory X employee

  • Lio Moe – Factory X employee

  • Natalie-Lynn Pillar - Factory X employee

  • Paige Laurie – Factory X employee

  • Rebecca Doran – Factory X employee          

  • Renee Thierry - Factory X employee

  • Rhiannon Howard - Factory X employee

  • Stephanie Wickham - Factory X employee

  • Yiska Krysko - Factory X employee

  • Tegan Whitchurch - Factory X employee

  1. At the hearing on 22 January 2024 Ms M Moloney of counsel represented Factory X by permission granted pursuant to s 596(2) of the Act. Ms Moloney called the following persons to give evidence;

  • Hannah Maybury – Store Manager for Factory X

  • Emma Chapman – National Retail Manager for Factory X

Background and evidence

Factory X

  1. Factory X operates through a single corporate entity, being Factory X Pty. Ltd. and holds the Australian Company Number (ACN) of 078 151 667 and Australian Business Number (ABN) of 51 078 151 667[1]. Through that single corporate entity, Factory X operates all of its fashion and clothing retail stores, online distribution and click and collect centres. Prior to around 2020 Factory X operated Jack London and Alannah Hill stores but these were exited during the COVID – 19 pandemic leaving it with three distinct fashion label brand stores, those being Dangerfield, Princess Highway and Gorman.

  1. Factory X currently operates 122 retail stores across all States and Territories (except the Northern Territory). This includes 58 Gorman stores (including outlets), 4 Princess Highway stores and 60 Dangerfield stores (including outlet stores)[2]. There are according to Ms Chapman many instances where stores of the different brands are in the same shopping centre or shopping strip[3]. Factory X’s annual retail sales budget for all brands is approximately $120m, and its annual wages budget is $28m[4]. Factory X have three Victorian warehouses, one which stocks Gorman products in Zetland Street Abbotsford and another warehouse located close by which stocks Gorman and L’urv products and another warehouse in Marine Parade which stocks Dangerfield, Princess Highway, Jack London and Alannah Hill products[5].

  1. Ms Chapman states that there are currently approximately;

  • 183 employees engaged in Dangerfield and Princess Highway stores in Victoria;

  • 371 employees engaged in Dangerfield, Princess Highway and Gorman stores (including stock controllers and Area Managers) in Victoria;

  • 1000 employees nationally in Dangerfield, Princess Highway and Gorman stores (including stock controllers and Area Managers); and

  • 88 staff in on-line distribution and click and collect centres[6].

  1. Ms Chapman gave unchallenged evidence that the store structure of Factory X has the following features;

  • Retails Sales Assistants work in one or more stores;

  • Stores are managed by Store Managers, with second in charge (2IC) and sometimes third in charge (3IC) employees;

  • Store Managers report to Area Managers, each of whom is responsible for 3-8 stores;

  • there are 5 state Managers (Tasmania, Queensland, SA/WA, and 2 in Victoria); and

  • in some cases, Area and State Managers may hold responsibility for stores across multiple brands[7].

  1. Evidence also emerged during the proceedings that Dangerfield, Gorman and Princess Highway stores may be geographically located close to each other, for example in the same shopping strip or shopping centre. The clearest example of this is seen in the Fitzroy stores of each of the three brands. The Dangerfield store is located at 202-204 Brunswick St Fitzroy[8] while the Gorman and Princess Highway stores are located in immediately adjoining shops in the same building at 188 Brunswick St Fitzroy[9].

  1. Ms Chapman also gave unchallenged evidence on the features of the Factory X stores which as National Retail Manager she was responsible for. She relevantly stated that while opening and closing hours and store budgets may vary from store to store, the same operational expectations exist for all stores regardless of brand[10]. She pointed to the fact that all Factory X stores;

  • use the same or substantially the same training manual, allowing for some slight adaption from store to store[11];

  • use the same SALES training program, measured by conducting the same SALES assessments and mystery shops, which are completed using the same template[12];

  • use the same Code of Conduct[13];

  • use the same visual merchandising format (albeit modified to represent each brand’s aesthetic)[14]; and

  • use the same systems, including Apparel 21 (AP21) for processing sales and online orders, Kepler for measuring foot traffic and Dayforce for creating rosters, shift approvals and payroll.

  1. Various evidence was also adduced that indicates that while each of the three brands have their own distinct aesthetic, Dangerfield has a grungier youth oriented aesthetic with a ‘gothic element’ while Gorman and Princess Highway have a more feminised cottage aesthetic that tends to use floral prints and have similar styles[15].

Factory X employment

  1. Ms Chapman states that in Factory X’s retail operations, it is indicated to interviewees during the recruitment process where it is likely that the person will be placed if employed. While applicants may apply for a particular role in a specific brand store/outlet, for example with Dangerfield, they may on engagement be placed in a Gorman or Princess Highway store[16]. On commencement a new employee is assigned a home store or region, although the employee may work at multiple stores although this will typically be in the same region[17]. Employees are employed by Factory X and not by a particular brand or store and no contract of employment[18] specifies which brand or brands the employee will be aligned to in terms of where they work[19]. None of this evidence was challenged by RAFFWU Inc. witnesses. Ms Chapman also gave unchallenged evidence that staff routinely move across brands during their employment with Factory X, although this occurs most often but not always at the Store Manager level.[20]

  1. Some RAFFWU Inc. witnesses gave evidence on the relationship between Dangerfield, Princess Highway and Gorman stores including;

  • Ms Butler states that in the Brunswick Dangerfield store in which she works, the store stocks and sells Dangerfield, Princess Highway, Black Friday and Pulp Kitchen stock, that the store does not stock Gorman products, that she has never been trained in Gorman products and while she has seen products transferred between Princess Highway and Dangerfield stores, she has never seen Gorman stock transferred to Princess Highway or Dangerfield stores[21].

  • Mx Mulveney states that when employed by Factory X in a Dangerfield store, they were never required to work in a Gorman store, were expected to have a strong working knowledge of all items for sale which included Dangerfield, Princess Highway and Black Friday items and were not aware of the specific products sold at Gorman and nor were they required to have anything to do with the Gorman brand[22].

  • Stephanie Wickham is Store Manager for the Swanston Street Melbourne Princess Highway store and also a RAFFWU Inc. delegate. She gave evidence that in Princess Highway stores, only Princess Highway product is sold which she understands is the same as Gorman stores which only sell Gorman products whereas Princess Highway stock can also be bought in Dangerfield stores along with other product lines of Factory X (except Gorman). She also understands that Dangerfield or Princess Highway gift cards or vouchers can be used interchangeably at either of these stores whereas Gorman gift vouchers can only be used in Gorman stores and that Dangerfield stores will receive returns for Dangerfield and Princess Highway products, but not Gorman products[23].            

  1. Ms Chapman further states that the duties and key performance indicators of a casual Retail Assistant across each brand are the same, as set out in position descriptions[24], and include but are not limited to KPI’s including;

  • achieving 90% benchmark results for mystery shop surveys;

  • achieving 90% budget and Last Year targets;

  • achieving 90% benchmark for own Personal Budget;

  • completion of financial, online, security inventory, HR and payroll routines; and

  • participating in training, induction and team meetings.[25]

  1. The majority of employees of Factory X (ranging from 75-85%) are employed on a casual basis and typically receive the base rate of pay under the General Retail Industry Award 2020[26] (the Award)[27]. The age demographic of the Factory X workforce across each brand is similar according to Ms Chapman. For example, across all Dangerfield stores approximately 10% are junior employees (under 20 years old), compared to 7% in Gorman stores. The largest age cohort in each brand is that of 20-25 year olds which in Dangerfield stores represents 61% of the staff numbers compared to 46% in Gorman stores[28].

RAFFWU Inc. Factory X national campaign

  1. Ms Chapman gave evidence that she became aware of a national Factory X enterprise bargaining campaign initiated by RAFFWU Inc. in late 2023. She refers to a social media post from RAFFWU Inc. she saw on or around 23 November 2023 showing Mx Mulveney in Sydney at a RAFFWU Inc. event. She says she also became aware of a Tik Tok video published by RAFFWU Inc. on 6 December 2023 in which RAFFWU Inc. appealed to all Factory X staff nationwide to join its bargaining campaign. At one point in the video the speaker is recorded as saying “whether you’re Dangerfield, Princess Highway, Warehouse” and at the same time the text caption to the video reads “Gorman too”.[29]  Ms Chapman also refers to a national telephone call RAFFWU Inc. held on 12 December 2023 regarding its national Factory X campaign, the major topics of discussion reported to her as having been the same claims being sought by RAFFWU Inc. in its Victorian campaign.[30]

  1. Mr Johnstone was cross-examined on the national campaign and while agreeing that the hashtags for the national campaign include Dangerfield, Princess Highway and Gorman, he did not understand the RAFFWU Inc. campaign to extend to include Gorman. Although aware of the campaign underway in NSW he expressed no knowledge of the campaign or whether Gorman was part of that campaign. He also had no knowledge of the Factory X telephone call conducted by RAFFWU Inc. on 12 December 2023 having not joined the call and could not dispute that the call involved participants from both Dangerfield and Gorman[31].

  1. Mx Mulveney was also cross-examined about RAFFWU Inc.’s national Factory X campaign. They conceded that the TikTok video refers to a nationwide campaign for an enterprise agreement, that the campaign refers to Gorman as well as Dangerfield and Princess Highway stores and includes the hashtags of Princess Highway, Dangerfield and Gorman. Mx Mulveney also did not dispute the proposition put to them that a Gorman employee participated in the 12 December 2023 RAFFWU Inc. telephone call. As regards the exclusion of Gorman stores from the RAFFWU Inc. Victorian campaign, Mx Mulveney stated in cross-examination that the decision was made by all members. They also accepted that by virtue of mathematics, the exclusion of Gorman made it easier for RAFFWU Inc. to secure signatures[32].

The RAFFWU Inc. petition

  1. Mx Mulveney and Michael Johnstone who are both organisers with RAFFWU Inc. were responsible for co-ordinating RAFFWU Inc.’s ‘Dangerfield Campaign’ with Mx Mulveney being responsible for the conduct of the petition across Dangerfield and Princess Highway stores in Victoria which they started doing on 5 October 2023[33]. The petition used by RAFFWU Inc. included a statement at the head of the page and also included a declaration below which there was a table that allowed for eight discreet names, signatures, the store (of the employee) and optionally allowed for inclusion of mobile phone numbers and email contact details. The explanatory statement and declaration on the petition read as follows;

“This is an official petition conducted by the Retail and Fast Food Workers Union (RAFFWU) of workers employed by Factory X to work in Dangerfield and Princess Highway stores within the state of Victoria who want to bargain for a new enterprise agreement. Your signature is confidential. This petition will be used in the Fair Work Commission to show employees want to bargain for an agreement which covers them. All workers who will be covered by the proposed agreement can sign this petition, irrespective of whether they are RAFFWU members or yet to join.

I hereby state that I want to bargain for a new enterprise agreement covering my employer Factory X Pty Ltd, and all employees of Factory X Pty Ltd who are employed to work in Dangerfield and Princess Highway stores located within the state of Victoria.

…………..”[34] 

  1. A total of 23 separate petition sheets were collected from across the various Dangerfield and Princess Highway stores in Victoria and were in the custody and control of various persons during the conduct of the petition, including Mx Mulveney who had overall responsibility for the conduct of the petition along with Mr Johnstone. On instructions of Mr Johnstone, Mx Mulveney states that whenever they were collecting signatures on the petition, they always did the following things;

(a)explained the purpose of the petition;

(b)asked workers if they were interested in reading the RAFFWU Inc. claims; and

(c)asked workers to sign the petition.[35]

  1. According to Mx Mulveney, several of the petitions remained in their sole custody throughout the conduct of the petition. These were petitions, identified by RAFFWU Inc. as petition numbers 11-18, 22 & 23, which included a total of 22 signatures. Of the other petitions, the following custody and control arrangements were in place;

  • Petition 1 (Dangerfield Highpoint) – Contains 4 signatures. Mr Johnstone left the petition with Jaslyn Tan from 6 October – 18 October 2023 and Mx Mulveney picked up the petition from Ms Tan on 18 October 2023 following which it remained in their possession.[36]

  • Petition 2 (Princess Highway Doncaster) – Contains 2 signatures. Mx Mulveney left the petition with Evelina Tzimas between 19-26 October 2023 and picked up the petition on 26 October 2023 following which it remained in their possession[37].

  • Petition 3 (Dangerfield Brunswick) – Contains 4 signatures. Mr Johnstone left the petition with Natalie Butler from 1 October – 4 October 2023 and Mx Mulveney picked up the petition from Ms Butler on 4 October 2023 following which it remained in their possession[38].

  • Petition 4 (Dangerfield Flinders Street) – Contains 7 signatures. Mr Johnstone left the petition with Rhiannon Howard on 26 September 2023 following which it passed through the possession of Stephanie Wickham (3-6 October 2023) and Lio Moe (6-7 October 2023) before it was picked up by Mx Mulveney on 7 October 2023 following which it remained in their possession[39].

  • Petition 5 (Dangerfield Mildura) – Contains 4 signatures. Mr Johnstone left the petition with Tegan Whitechurch from 2 – 6 October 2023 before returning to pick it up on 6 October 2023 following which it remained in his possession until he passed it to Mx Mulveney on 20 October 2023 upon which it remained in their possession[40].

  • Petition 6 (Dangerfield Fountain Gate) – Contains 7 signatures. Paige Laurie picked up a copy of the petition from the Fountain Gate Dangerfield store, retained possession of it from 9-26 October 2023 at which point Mx Mulveney picked up the petition following which it remained in their possession[41].

  • Petition 7 (Princess Hill Swanston Street) – Contains 4 signatures. Mx Mulveney left the petition with Stephanie Wickham on 27 September 2023 following which it passed through the possession of Lio Moe (30 September – 3 October2023), Stephanie Wickham (3-5 October 2023), Rebecca Doran (5 October 2023), Freyja Black (5 October 2023), Lio Moe (5-7 October 2023) before it was picked up by Mx Mulveney on 7 October 2023 following which it remained in their possession[42].

  • Petition 8 (Dangerfield Geelong) – Contains 5 signatures. Mx Mulveney left the petition with Rhee Thierry between 18-26 October 2023 and picked up the petition on 26 October 2023 following which it remained in their possession[43].

  • Petition 9 (Dangerfield Melbourne Central) – Contains 7 signatures. Natalie Pillar received a copy of the petition from Lio Moe, retained possession of it between 9-18 October 2023 at which point Mx Mulveney picked up the petition following which it remained in their possession[44].

  • Petition 10 (Dangerfield Melbourne Central) – Contains 3 signatures. Mx Mulveney left the petition with Lio Moe on 27 September 2023, following which it passed to Ms Pillar’s control from 3-12 October 2023 before being returned to Ms Moe on 12 October 2023 where it remained in her possession until Mx Mulveney picked up the petition on 26 October 2023 following which it remained in their possession[45].

  • Petition 19 (Dangerfield Fountain Gate) – Contains 1 signature. Mx Mulveney used this petition to collect signatures before it passed into possession of Katanya Bliss (6 October 2023) and Paige Laurie (6-26 October 2023) before Mx Mulveney picked it up on 26 October 2023 following which it remained in their possession[46].

  • Petition 20 (Dangerfield Brunswick) – Contains 8 signatures. Mr Johnstone left the petition with Natalie Butler on 1 October 2023 before it was picked up by Mr Johnstone on 26 October 2023 before being passed to Mx Mulveney on 30 October 2023 following which it remained in their possession[47].

  • Petition 21 (Dangerfield Brunswick) – Contains 4 signatures. Mr Johnstone left the petition with Natalie Butler on 1 October 2023 before it passed through the possession of Yiska Krysko (4-8 October 2023), Natalie Butler (8-26 October 2023) and Mr Johnstone (26-30 October 2023) before being passed to Mx Mulveney on 30 October 2023 following which it remained in their possession[48].

  1. Mr Johnstone was cross-examined on the petition and agreed that the persons responsible for the signature collection and petition custody included a mix of RAFFWU Inc. delegates and other employees, that there were in excess of ten employees responsible for collecting signatures most of whom were delegates, some of those delegates and employees were inexperienced in petition processes and there was no guarantee that all of those employees provided the same explanation to employees when collecting signatures[49].

  2. When cross-examined on their communication with Factory X employees while collecting signatures for the petition, Mx Mulveney provided the following evidence;

  • agreed that while they were responsible for the Factory X campaign in Victoria, it was their first campaign for RAFFWU Inc., they had not previously taken part in such a campaign and was inexperienced in the process[50];

  • not every employee they spoke to signed the petition;

  • some of the employees they spoke to read the RAFFWU Inc. Factory X claims document;

  • they didn’t volunteer to employees that there was no guarantee that the claims in the claims document would be ultimately realised through bargaining if the MSD was decided in RAFFWU Inc.’s favour; and

  • conceded that some employees they spoke with about the RAFFWU Inc. campaign and the petition may have been left with the impression that in signing the petition they were signing up for the claims, but they rejected that they had told any employees that in signing the petition the outcome would be an enterprise agreement reflecting the log of claims.

  1. Ms Butler gave evidence in a second witness statement on her role in collecting signatures which included at the Princess Highway Doncaster and Dangerfield Brunswick stores[51]. In respect of one petition that she passed on to a colleague Yiska Krysko, Ms Butler states she told Ms Krysko that when collecting signatures, she should ensure the following was communicated;

  • encourage workers to read the and sign the petition;

  • don’t leave the petition with anyone else;

  • any store worker can sign it, not just union members;

  • the petition was in support of bargaining and RAFFWU Inc. would pursue the claims in bargaining;

  • no-one is forced to sign the petition;

  • employees can sign it without giving contact details; and

  • the claims were available to read if sought by an employee[52].

  1. Ms Butler was cross-examined on her petition signature collection. She rejected that she had not explained the petition clearly to employees she spoke with and confirmed that in explaining the petition and the RAFFWU Inc. claims document, she explained to each employee she spoke with that signing the petition did not guarantee that each of the claims would be achieved in bargaining[53]. She did however agree that there were a significant number of delegates and employees involved in signature collection and that while she had not witnessed any RAFFWU Inc. delegate engage in pressure or intimidation, there were numerous conversations that she was not present at[54].

  2. Renee Thierry who was recently elected as a RAFFWU Inc. delegate also gave evidence in her second witness statement of what she said to employees when collecting signatures that was similar to Ms Butler[55]. When cross-examined on her evidence Ms Thierry confirmed that she had collected five signatures, that she was not a delegate at the time the petition was conducted and that she had not had any previous experience in collecting a petition of this nature. Ms Thierry rejected that she had not provided a consistent explanation of the purpose of the petition. She did however agree that she had not included this information in her first witness statement but rejected that was because she had more recently learnt what she should have stated to employees when collecting signatures[56].

  1. Rhiannon Howard who is a RAFFWU Inc. delegate also gave evidence on her role in collecting signatures and set out in her second witness statement the information she provided to employees when discussing the petition[57]. She rejected the proposition put to her during cross-examination that she had not provided each employee to whom she spoke with all of the information set out in her witness statement. She acknowledged that she had not included this detail in her first witness statement but rejected that she only included that information in her second statement as she had more recently found out what she should have said to each employee she spoke with about the petition[58].

  1. Ms Chapman gave evidence that Factory X had received reports from some staff that they had felt pressured by RAFFWU Inc. representatives to sign the petition. This led her and HR Manager Rebecca Gibbs to call Princess Highway and Dangerfield store managers to ask them about their experience with RAFFWU Inc. representatives. Ms Chapman gave various accounts of un-named staff and managers reporting feeling either uncomfortable or pressured by RAFFWU Inc. representatives to sign the petition[59]. When cross-examined on this evidence Ms Chapman conceded that she was not aware of any Factory X employee being counselled, disciplined or performance managed in relation to alleged inappropriate conduct arising from the RAFFWU Inc. campaign and signature collection for the petition.[60]

  1. Ms Maybury who is Store Manager for the Doncaster Princess Highway store, gave evidence of what she claimed to be unreasonable pressure from RAFFWU Inc. representatives. She variously states;

·   she heard about the RAFFWU Inc. Factory X campaign on or around August 2023[61];

·   Ms Butler came to the Doncaster store on or about that time to cover a shift and brought up some criticisms about Factory X uniforms[62];

·   Ms Butler covered another shift at Doncaster at a later point and she (Ms Maybury) found it difficult to have a conversation with Ms Butler without Ms Butler persistently bringing up the subject of RAFFWU Inc. and the petition, during which conversations Ms Maybury says she told Ms Butler she was not interested in joining RAFFWU Inc. and that her views did not align with Ms Butler’s[63];

·   that around this time further communication occurred between herself and Ms Butler during which she advised Ms Butler that she agreed with 20% of RAFFWU Inc.’s claims but did not want to sign the petition[64];

·   at the conclusion of the particular shift when Ms Maybury states she repeatedly advised Ms Butler she wasn’t interested in the RAFFWU Inc. campaign, she states that when she and Ms Butler went to the carpark together at the end of their shift Ms Butler continued to press her on the RAFFWU Inc. campaign and trailed Ms Maybury to her car and ‘wouldn’t let the topic go’[65];

·   Ms Butler persisted in her efforts to secure Ms Maybury’s support for RAFFWU Inc. by way of two text messages on 12 October 2023 inviting her to a RAFFWU Inc. event and a further event reminder text on 18 October 2023[66];

·   sometime in October 2023, Ms Butler attended the Doncaster store and asked Ms Maybury to sign the petition which Ms Maybury declined to do and despite Ms Butler offering to leave the petition Ms Maybury again told Ms Butler she was not comfortable signing the petition and not to leave it with her[67]; and

·   on a further occasion in October 2023, Mx Mulveney attended the Doncaster store and during their conversation Ms Maybury repeatedly confirmed (4-5 times) that she did not want to sign the petition but at the end of the conversation she accepted a piece of paper with Mx Mulveney’s phone number on it believing this was the only way to end the conversation[68].

  1. Ms Butler gave evidence regarding her interactions with Ms Maybury referred to in Ms Maybury’s evidence. While not recalling all of the details of their conversations she rejected that she had been pushy and felt that they had a nice conversation in which they shared their opinions. She further states that she included Ms Maybury in a group text message on 12 & 18 October 2023 regarding the RAFFWU Inc. event so as not make Ms Maybury feel she had been excluded. Ms Butler also denied that she had offered to leave the petition with Ms Maybury as claimed[69].

  1. When cross-examined on her communication with Ms Maybury, Ms Butler gave the following evidence;

·   agreed that on the second occasion she met with Ms Maybury she had repeatedly raised RAFFWU Inc. and a potential petition;

·   during this conversation Ms Maybury made clear she was not interested in being a union member or signing the petition;

·   Ms Maybury did however express some support for the objectives of the campaign;

·   following her conversations with Ms Maybury she told Mx Mulveney that Ms Maybury was not interested in signing the petition;

·   reaffirmed that the reason she included Ms Maybury in the group text message about the RAFFWU Inc. event was to avoid giving the impression that she was excluding Ms Maybury;

·   she ceased communication with Ms Maybury of her own accord because it became clear Ms Maybury was not interested in the RAFFWU Inc. campaign; and

·   rejected that she had interacted with other employees in the same manner as her interactions with Ms Maybury.[70]

  1. Mx Mulveney disagreed with aspects of Ms Maybury’s evidence. They agreed that on arrival at the Doncaster store, they had introduced themself and explained the purpose of their visit, that being to obtain signatures for the petition. After discussing Ms Maybury’s positive experience in working for Factory X they say they asked Ms Maybury whether they would like to attend a meeting and hear from other Factory X employees about their experiences. They further state that they offered their phone number to Ms Maybury in case Ms Maybury wanted to have a further discussion. They state Ms Maybury agreed in response to take their phone number following which Mx Mulveney says they promptly left the store[71].

  1. Ms Maybury was cross-examined in relation to her evidence and gave the following evidence in relation to her interactions with Ms Butler and Mx Mulveney;

  • in relation to the carpark interaction with Ms Butler, Ms Maybury agreed that she had not said to Ms Butler words to the effect of ‘I need you stop now’, as she was not a confrontational person;

  • in terms of the text messages received from Ms Butler, she agreed that while she had not asked Ms Butler to stop sending any more messages, she had spoken to HR to highlight she was uncomfortable with Ms Butler’s approach;

  • stated that her interactions with Ms Butler and Mx Mulveney had generally been in relation to the RAFFWU Inc. claims rather than the petition which she had not previously seen, although on reading the petition during her cross-examination she agreed that it merely sought to obtain support from staff to bargain with Factory X for an enterprise agreement[72]; and

  • in discussing the RAFFWU Inc. claims with Ms Butler and Mx Mulveney, she understood she was being asked to sign up to all the claims[73].

  1. The Respondent also sought to rely on evidence of Isabella Cox[74] who is employed by Factory X as a State Stock Assistant and was mistakenly not included in the Respondent’s list of employees. Ms Cox was unable to appear in the proceedings for medical reasons. Ms Cox in her witness statement made various claims regarding information that was provided to her in relation to the RAFFWU Inc. petition which she signed (Petition #19). Ms Cox variously states that;

·     Mx Mulveney approached her at the Fountain Gate Dangerfield store at one point and advised her that RAFFWU Inc. were getting employees to sign a document that would give employees a voice;

·     she understood the petition to be very casual, anonymous and not a big deal and she had no idea it would be used in a formal legal hearing or that she was indicating a desire to enter into collective bargaining;

·     once she subsequently obtained and read a copy of the RAFFWU Inc. claims she realised that the document did not align with her views and in these circumstances, she did not believe RAFFWU Inc. should have encouraged her to sign the petition;

·     on 22 November 2023, she emailed Mx Mulveney[75], copying in Josh Cullinan and Mr Johnstone, asking that her name be withdrawn from the petition; and

·     following her email to Mx Mulveney she told Rebecca Gibbs in HR that she had felt pressured to sign the petition without understanding it.

  1. Mx Mulveney gave evidence on their interactions with Ms Cox and stated that they accurately explained the purpose of the petition to Ms Cox and offered to show Ms Cox a copy of the claims, which offer was declined. Mx Mulveney also states that Ms Cox indicated that she wanted to support the campaign. When cross-examined, Mx Mulveney agreed that Ms Cox had sent an email to RAFFWU Inc. seeking to withdraw her signature from the petition based on feeling misinformed and they agreed the allegation of misinformation was a serious one.[76] Ms Cox’s signature was not removed from the RAFFWU Inc. petition although it is noted that the petition was provided to the Commission by RAFFWU Inc. prior to Ms Cox requesting that her name be removed from the petition.

Legislative framework

  1. The relevant sections of the Act in relation to this application are sections 236 and 237. They set out the matters about which the Commission must be satisfied before making a majority support determination, in the following terms:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

…….

(2) The application must specify:

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

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

237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single enterprise agreement if:

(a)     an application for the determination has been made; and

(b)     the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC must be satisfied that:

(a)     a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and

(ii) who will be covered by the agreement;

want to bargain; and

(b)     the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c)     that the group of employees who will be covered by the agreement was fairly chosen; and

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

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(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.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

  1. I will deal with each of the legislative requirements in turn.

Consideration

Section 237(1)(a)

  1. It was not disputed that RAFFWU Inc. has made an application for a majority support determination. In relation to the requirement under section 236(1), that the application is to be made by a bargaining representative of an employee who will be covered by a proposed single enterprise agreement, it was not contested that RAFFWU Inc. by virtue of section 176(1)(c) of the Act, is a bargaining representative for an employee who will be covered by the proposed agreement.

  1. I am satisfied that an application has been made by a bargaining representative of an employee who will be covered by the proposed agreement, namely, RAFFWU Inc. (s237(1)(a)).

Section 237(2)(a) – whether a majority of employees want to bargain

  1. The first matter of which I must be satisfied under s 237(2) of the Act is that of whether a majority of employees who are employed at a time determined by the Commission, and who will be covered by the Agreement, want to bargain.

  1. As earlier stated, RAFFWU Inc. produced a petition that contained 86 signatures that were collected during October 2023 while the Respondent produced a list of 154 employees that were engaged in its Victorian Dangerfield and Princess Highway store outlets in the four week period 2-29 October 2023. Of the 86 names/signatures appearing on RAFWWU Inc.’s petition lists, 82 of those names/signatures were able to be matched to names appearing on the Respondent’s list of employees.

  1. Factory X contend that the Commission cannot be satisfied that a majority of employees want to bargain on a number of grounds, those being;

  • that it is open to the Commission to select a more recent time for the purpose of determining the cohort of employees;

  • the withdrawal of two signatures should be taken into account in assessing whether a majority of employees want to bargain;

  • employees did not understand the petition; and

  • undue pressure was applied obtain signatures.

Time to be determined by Commission

  1. Turning firstly to the time the cohort of employees from which the question of majority is to be determined. Taking into account that Factory X’s workforce is predominantly made up of casual employees and is likely to fluctuate seasonally it is in my view appropriate to fix the time by reference to a period of time. That is because, if the time were fixed by reference to a specific date, it is unlikely that many of the casual employees would be engaged on that date, thus artificially narrowing the cohort of employees. In the circumstances I regard the four week time period of 2-29 October as being reasonable.

Number of signatures

  1. Regarding the withdrawal of two signatures, I accept that Ms Cox explicitly requested the removal of her signature from the RAFFWU Inc. petition, that request not having been actioned either prior to or during the proceedings by RAFFWU Inc. I also note advice from the Respondent that Ms Cox was left off its list of employees in error, a point I have confirmed by reviewing Factory X’s list of employees. As Ms Cox was unable to be cross-examined on her claims of being misled by RAFFWU Inc. regarding the petition I treat that evidence with great caution. Her email to Mx Mulveney is however unambiguous as to wanting her name removed from the petition which leads me to conclude that it is appropriate in the circumstances to remove her name from the RAFFWU Inc. petition. Accepting also that she was inadvertently left off of Factory X’s list of employees, it is also appropriate to include her on that employee list.

  1. As regards the second employee that Factory X believe should be withdrawn from the RAFFWU Inc. petition, this is a reference to an employee that resigned their RAFFWU Inc. membership on 21 December 2023 and requested that their name also be taken off the RAFFWU Inc. petition[77]. While the name of that employee is redacted in Mx Mulveney’s evidence, I accept that the RAFFWU Inc. petition numbers should also be reduced by one to reflect the request of that person.

  1. Considering the circumstances of the above-referred two Factory X employees, the net result is that the Factory X list of employees employed in the period 2-29 October 2023 is to be increased to 155 and the number of verified employees on the RAFFWU Inc. petition is to be reduced to 80.

Whether employees understood the petition

  1. The gravamen of Factory X’s submission is that there was insufficient evidence before the Commission for it to be satisfied that all of the delegates/employees responsible for signature collection for the RAFFWU Inc. petition provided employees with an accurate explanation of the purpose of the petition. In these circumstances, Factory X submits that the Commission cannot be satisfied that the petition evidences a desire of a majority of employees to enter into bargaining with Factory X.

  1. In considering Factory X submission I make the following observations about the collection of signatures for the petition. While Mx Mulveney and Mr Johnstone were the RAFFWU Inc. officials responsible for the petition, the work of signature collection largely fell to RAFFWU Inc. delegates employed by Factory X and in some cases employees who were not delegates. It appears from the evidence of RAFFWU Inc. witness that approximately 12 employees of Factory X, some of whom were delegates, had responsibility for the custody and control of petition sheets and collected signatures at various points in time. In some cases, the particular petition sheets passed through the custody of several employees (see for example petition #7). It is also clear that the delegates/employees involved in signature collection and petition custody were inexperienced in collecting signatures for a petition of this kind.

  1. Mx Mulveney, who collected a total of 22 signatures for the petition, gave evidence of the information they provided to employees when speaking to them about the RAFFWU Inc. campaign and petition, as did Mr Johnstone. They also gave evidence of what they had advised delegates to explain to employees when collecting signatures. While making some concessions during cross-examination as to what impression employees may have been left with when they spoke to employees about the relationship between RAFFWU Inc.’s claims and bargaining, Mx Mulveney rejected that they had misled any employees when seeking their signatures on the petition.

  1. The only other RAFFWU Inc. witnesses who gave evidence on and were available to be cross-examined on the information they provided to employees when collecting signatures were Ms Butler, Mr Thierry and Ms Howard. Each of those witnesses provided evidence in their second witness statements as to what specific information they provided to employees when explaining the petition. While the fact they failed to include that information in their first statements might cause me to approach their evidence with some caution, they each resisted the proposition put to them during cross-examination that they only included that evidence when they became aware of what they should have explained to employees. They each maintained that they had accurately explained the purpose of the petition.

  1. If the evidence of Mx Mulveney, Ms Butler, Ms Thierry and Ms Howard is accepted that they each accurately explained the purpose of the RAFFWU Inc. petition, there remain several other delegates/employees that there is simply no evidence of what they advised employees when collecting signatures. Mr Johnstone properly conceded in cross-examination that he could not guarantee that all /delegates employees who had collected signatures provided a full and accurate explanation. For example, Ms Whitchurch, Ms Laurie, Ms Tzimas, Ms Krysko and Mr Moe were collectively responsible for the collection of 18 signatures and there is no evidence before me of what information they provided to employees when collecting signatures. Having said that, there is little to no evidence of any RAFFWU Inc. delegate providing information to employees that was false or misleading. While I note the evidence of Ms Cox, I place little weight on it given she was not available to be cross-examined on that evidence.

  1. It follows from the foregoing that because of the number of inexperienced delegates/ employees involved in the collection of signatures there must be some doubt that each of those delegates/employees gave an accurate and fulsome explanation of the purpose of the petition. Assuming that to be the case, and in the absence of evidence of false and/or misleading information being conveyed to staff, I turn to the petition itself. The purpose of the petition is explicitly explained at the head of the petition sheet when it states as follows;

“This is an official petition conducted by the Retail and Fast Food Workers Union (RAFFWU) of workers employed by Factory X to work in Dangerfield and Princess Highway stores within the state of Victoria who want to bargain for a new enterprise agreement. Your signature is confidential. This petition will be used in the Fair Work Commission to show employees want to bargain for an agreement which covers them. All workers who will be covered by the proposed agreement can sign this petition, irrespective of whether they are RAFFWU members or yet to join.

I hereby state that I want to bargain for a new enterprise agreement covering my employer Factory X Pty Ltd, and all employees of Factory X Pty Ltd who are employed to work in Dangerfield and Princess Highway stores located within the state of Victoria.

…………..”[78] (emphasis added)

  1. On any fair reading of the petition, it accurately represents the purpose of the petition and no employee who read it could be misled as to its purpose. The explicit statement also largely puts to bed the complaints of Ms Maybury and Ms Cox about confusion over the petition’s purpose. In my view, the explanation provided on the petition speaks for itself and must be given significant weight in circumstances where there is an absence of countervailing evidence of false or misleading information. It follows that I am not persuaded that the petition was derived through a lack of understanding on the part of employees.

Whether employees subjected to undue pressure

  1. Factory X submits that there was undue pressure applied to staff to sign the RAFFWU Inc. petition and in making that submission seek to rely on the evidence of Ms Maybury and Ms Chapman. The former gave evidence of the persistent efforts of both Ms Butler and Mx Mulveney to garner her support and signature for the RAFFWU Inc. petition, those efforts being repeatedly rebuffed by Ms Maybury. Reliance is also placed on Ms Chapman’s evidence that reports had been received from staff as to adverse experiences with RAFFWU Inc. representatives.

  1. It must be said that the only direct evidence of any pressure being applied by RAFFWU Inc. was that of Ms Maybury. I found her evidence to be credible but even taking it at its highest it merely reveals Ms Butler to be an enthusiastic advocate for RAFFWU Inc. and not easily dissuaded by Ms Maybury’s expressions of disinterest in the RAFFWU Inc. campaign. I accept that Ms Maybury may have been surprised or perhaps even irritated by Mx Mulveney’s subsequent approach notwithstanding Ms Maybury was clear with Ms Butler about her lack of interest in the RAFFWU Inc. campaign. In any case, once Ms Maybury confirmed to Mx Mulveney that she was not willing to sign the petition, the approaches from RAFFWU Inc. apparently stopped. There was no evidence that would persuade me that either Ms Butler or Mx Mulveney conducted themselves towards Ms Maybury in an aggressive or unpleasant manner. They were certainly persistent and not easily discouraged, but such conduct falls short of coercive conduct or conduct that left Ms Maybury feeling she had little or no choice but to sign the petition.

  1. Turning to Ms Chapman’s evidence, it is entirely hearsay as the reports of RAFFWU Inc. conduct is only as reported to her by managers, none of whom were called to give evidence. While I accept that casual and more junior sales staff may have been reluctant to give evidence, Factory X could have called managers to give direct evidence on reports they received from sales staff of undue pressure from RAFFWU Inc. representatives but did not do so. It is also significant that there was no documentary evidence produced that would have supported the submission there were concerns within Factory X management regarding the conduct of RAFFWU Inc. in securing signatures for its petition. Nor was any action taken by Factory X to investigate, counsel or discipline any employee for their conduct during the campaign to secure signatures for the RAFFWU Inc. petition.

  1. I readily accept that Factory X’s workforce is generally young (under 25 years of age) and casually engaged. Such a cohort may have more difficulty in resisting enthusiastic campaigning by more senior and experienced staff. The difficulty I have however with the Factory X submission is the absence of compelling evidence going to the alleged conduct of RAFFWU Inc. representatives, beyond the evidence of Ms Maybury. In the absence of broader evidence, I am unwilling to draw an inference that Ms Butler and Mx Mulveney’s persistent campaigning conduct towards Ms Maybury should be taken as having occurred across Victorian Dangerfield and Princess Highway store outlets. It follows that I am not persuaded that Factory X staff were subject to undue pressure by RAFFWU Inc. representatives.

Conclusion on s 237(2)(a)

  1. It follows from the foregoing that I am satisfied that the RAFFWU Inc. petition was not derived through pressure or coercion or falsely derived through the provision of misleading information provided to employees and that consequently the petition in the circumstances of this matter may be relied upon. The matching of the RAFFWU Inc. petition names against the Factory X list of employees reveals that of the 155 persons employed in the period 2-29 October 2023, 80 of those persons expressed support for bargaining. While the margin is slim, it nonetheless indicates that a majority of employees engaged in Factory X’s Victorian Dangerfield and Princess Highway stores want to bargain for an enterprise agreement with Factory X. I am consequently satisfied that a majority of employees employed by Factory X in its Victorian Dangerfield and Princess Highway stores in the period 2-29 October 2023 want to bargain.

Section 237(2)(b) – employer has not agreed to bargain nor initiated bargaining

  1. It was not contested that Factory X has not yet agreed to bargain with its employees for an enterprise agreement and that it has not yet initiated bargaining for an enterprise agreement.

  1. I am satisfied that the employer has not agreed to bargain nor initiated bargaining (s.237(2)(b)).

Section 237(2)(c) – whether employee cohort is fairly chosen

  1. Turning now to s 237(2)(c), the Commission is not permitted to make an MSD unless it is satisfied that the group of employees who will be covered by the proposed agreement was fairly chosen. In circumstances where the proposed agreement would not cover all of the employers’ employees, the Commission in deciding whether the group of employees was fairly chosen for the purposes of s 237(2)(c), must take into account whether the group is geographically, operationally, or organisationally distinct pursuant to s 237(3A) of the Act.

  1. The analogous agreement making provisions of s 186(3) & 186(3A) of the Act were considered by a Full Bench in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Ors[79] (Cimeco) and provides guidance in considering ss 237(2)(c) & 237(3A) of the Act. The Full Bench in Cimeco relevantly stated as follows;

“[19] Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.

[20] It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.

[21] It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant……”[80] 

  1. The reasoning of the Full Bench in Cimeco has been consistently applied in other more recent decisions of the Commission including by a Full Bench in QGC Pty Ltd v The Australian Workers Union (QGC)[81] where they also emphasised that distinctiveness or more specifically a lack of distinctiveness, needed to be weighed with other relevant factors going to whether the group of employees was fairly chosen[82].

  1. Factory X contend that the Commission cannot be satisfied that the employee cohort selected by RAFFWU Inc. for the purposes of the MSD was fairly chosen. That is because the Princess Highway and Dangerfield stores in Victoria are not geographically, operationally or organisationally distinct from the excluded employees, those being Gorman employees in Victoria and all Factory X employees outside of Victoria. The submission of Factory X can be summarised in the following way. Firstly, employees of Factory X across all three brands work in stores in the same shopping strip or the same shopping centre. Secondly, there is no meaningful distinction between Factory X’s operations in Victoria and in other states and territories. Thirdly, Factory X employees engaged in Dangerfield and Princess Highway stores are not geographically distinct from Gorman Victorian employees. Fourthly, employees in Factory X stores perform the same roles in substantially the same ways across the three different brands, this including the same position descriptions, performance indicators and systems of work. Fifthly, the employees in Factory X stores are engaged through substantially the same recruitment processes and management structure. Finally, to the extent there is any organisational distinctiveness between the three brands, each brand has similarities and differences with each other such that the selection of just Princess Highway and Dangerfield and the exclusion of Gorman is arbitrary.

  1. For its part, RAFFWU contends that Dangerfield and Princess Highway stores are operationally and organisationally distinct from Gorman stores in Victoria. In making that submission, it refers to a number of matters including separate warehousing arrangements, gift card, product sales, and product return arrangements, separate websites, crossover of Dangerfield and Princess Highway staff, brand aesthetics and close alignment between Princess Highway and Dangerfield brands and stores.

  1. Before turning to consider whether the group of employees is fairly chosen taking into account any geographical, operational and organisational distinctiveness it is necessary for me to make some factual findings regarding the operations and employment arrangements of Factory X. These are set out below.

  1. I accept the evidence put forward by Ms Chapman that was largely unchallenged regarding the structure and operations of Factory X which is set out above at [9], [10], [11], [13] and [14]. The evidence reflects the following with respect to Factory X stores;

  • Factory X have 122 retail stores nationally which includes 58 Gorman stores (including outlets), 4 Princess Highway stores and 60 Dangerfield stores (including outlet stores);

  • there are approximately 1000 employees engaged in Dangerfield, Princess Highway and Gorman stores (including stock controllers and Area Managers) across Australia

  • there are 371 employees engaged in Dangerfield, Princess Highway and Gorman stores (including stock controllers and Area Managers) in Victoria;

  • there are 183 employees engaged in Dangerfield and Princess Highway stores in Victoria;

  • Gorman products are warehoused at Factory X’s ‘Zetland’ warehouse and another warehouse located nearby in Abbotsford while Dangerfield and Princess Highway stock is warehoused in the ‘Marine Parade’ warehouse along with other Factory X brands including Jack London and Alannah Hill;

  • staff in all stores report through store, area and state managers to Factory X’s National Retail Manager and in some cases area and state managers are responsible for more than one brand;

  • all staff are employed by the same corporate entity, that being Factory X;

  • all three brands use the same systems including, the Sales assessment program, mystery shops, foot traffic, rosters, shift approvals and payroll systems;

  • operational expectations are the same across the three brands;

  • visual merchandising formats are the same across the three brands;

  • the Factory X code of conduct applies across all stores;

  • all stores use a training manual that is substantially the same;

  • position descriptions and expectations of store managers are the same across all stores;

  • the recruitment process used by Factory X is the same across all three brands and stores and while an employee may apply for a role with a particular brand store, they may on engagement be placed in a different brand store; and

  • transfers between brands occurs although it is more likely to happen at the Store Manager level.

  1. Evidence was also led from RAFFWU Inc. that I accept which reveals the following;

  • Princess Highway products are sold in Dangerfield stores while neither Dangerfield nor Gorman stock is sold in either of the other brand stores;

  • unlike Dangerfield which stocks a range of different brands (except Gorman products) Princess Highway and Gorman stores only stock their respective product lines;

  • Princess Highway products can be returned post sale to Dangerfield stores;

  • Dangerfield store staff are required to be familiar with Princess Highway stock due to it being sold in Dangerfield stores;

  • gifts cards for Dangerfield and Princess Highway stores can be used interchangeably between those stores whereas Gorman gift cards cannot be used in Dangerfield and Princess Highway stores; and

  • each of the three brands have their own dedicated websites.

  1. There was conflicting evidence on the ‘aesthetic’ of the three brands, although witnesses agreed that each brand had a distinctive aesthetic. While no ‘expert witnesses’ were called I prefer the evidence of Ms Chapman based on her qualifications, roles and experience both in retail sales and design with Factory X. I accept her evidence that Dangerfield has a grungier youth oriented aesthetic with a ‘gothic element’ while Gorman and Princess Highway have a more feminised cottage aesthetic that tends to use floral prints and have similar styles. It is sufficient for me to conclude that each brand has its own unique aesthetic which is unsurprising as if that were not the case one would question the logic of having separate brands and stores.

  1. There was also conflicting evidence on the incidence of employees transferring between the three brand stores. Ms Chapman gave evidence that transfers between the three brands occurred although clarified that it occurred mostly at manager level. The extent of RAFFWU Inc. witness evidence was that two witnesses (Ms Butler and Ms Wickham) had worked at both Dangerfield and Princess Highway stores. None of the RAFFWU Inc witnesses could dispute Ms Chapman’s evidence that transfers across all three brands occurred nationally although that evidence of Ms Chapman was unsupported by any details. The limited evidence put forward by either party on the incidence of transfers across stores does not establish that that there is a high incidence of transfers or that it is more likely to occur between particular brands.

  1. Having made the above relevant factual findings, I now turn to consider whether the group of employees was fairly chosen. It is apparent from the above-referred employee numbers that the proposed agreement will not cover all of Factory X’s employees. It is therefore necessary for me to take into account whether the group of employees is geographically, operationally or organisational distinct in determining whether the group is fairly chosen. In doing so, it is important to recognise that distinctiveness is not determinative of whether the group of employees is fairly chosen. Rather, it is a factor to be weighed in assessing whether the group is fairly chosen. A finding of distinctiveness may tell in favour of the group being fairly chosen while conversely, a lack of distinctiveness may tell against such a finding. As observed by the Full Bench in QGC, “whether or not a group is organisationally, operationally or geographically distinct is not decisive but rather is a matter to be given due weight having regard to all of the other circumstances”.[83]

Whether the group of employees is geographically distinct

  1. I am not satisfied that the cohort of relevant employees, those being Dangerfield and Princess Highway are geographically distinct from employees that would not be covered by the proposed agreement. My reasons for that follow.

  1. The group of employees selected by RAFFWU Inc. are located in Victorian Dangerfield and Princess Highway stores. I accept Factory X’s submission that it operates as a national organisation and that its employees receive substantively the same terms and conditions across the various states and territories and that any material differences tend to be in respect of trading hours. That said, I do accept that the Victorian stores are geographically distinct from Factory X stores located in other states and territories. That geographical distinctness is supported by the organisational structure which sees Area Managers report into a State Manager.

  1. Notwithstanding my above view, I am not persuaded that the Dangerfield and Princess Highway stores in Victoria are geographically distinct from Gorman stores operated by Factory X in Victoria. That is because while each of the three brands have a number of stores located across Victoria, the Dangerfield and Princess Highway stores are no more or less geographically distinct from each other than they are from the Gorman stores.

  1. While each Factory X store may be physically separate from each other, it is not uncommon for each brand to have a store located geographically close to each other. An example of this can be seen in Factory X’s Brunswick St Fitzroy stores where all three brands are located less than a block apart and in the case of the Gorman and Princess Highway stores, are located immediately adjacent to each other in the same building.

  1. It follows from the foregoing that I am not satisfied that employees who would be covered by the proposed agreement are geographically distinct from employees employed by Factory X in its Victorian Gorman stores.

Whether the group of employees is operationally distinct

  1. Turning to whether the group of employees is operationally distinct, the Full Bench in QGC said that the term ‘operationally’ where it is used in s 237(3A), refers to an industrial or productive activity which was described in that matter as ‘the operation and maintenance of gas extraction and processing infrastructure’[84]. In the present matter I accept that the industrial activity is as described by Factory X, that of the operation of clothing and fashion retail stores.

  1. When the group of employees that would be covered by the proposed agreement in the present matter is considered through the lens of the above-described industrial activity, I don’t accept that Dangerfield and Princess Highway staff are operationally distinct from those employees of Factory X that would be excluded from the proposed agreement’s coverage, those being Gorman staff. Employees working in Dangerfield and Princess Highway stores in Victoria are engaged in the same industrial activity for Factory X as those employees employed by Factory X in its Gorman stores in Victoria.

  1. Furthermore, a meaningful distinction cannot be drawn in my view between Dangerfield, Princess Highway or Gorman store operations in terms of the roles of employees, which includes Retail Assistants, Store Managers (plus 2IC & 3ICs), Area Managers and Stock Controllers, most of which roles fall within the coverage of the General Retail Industry Award 2020[85] (the Award). While it is correct that each brand has separate stores, distinct branding and unique aesthetics, it does not automatically follow that the brands are operationally distinct. That is so because employees in all of Factory X’s stores are engaged in the same industrial activity albeit they are engaged in the sale of different styles and brands of clothing and fashion. If it were the case that the unique branding and aesthetic of each brand and their separate stores gave rise to operational distinctiveness, then Dangerfield and Princess Highway are as operationally distinct from each other as they are from Gorman. In these circumstances I would agree with Factory X’s submission that Gorman’s exclusion is arbitrary.

  1. It follows from the foregoing that the employee cohort that would be covered by the proposed agreement is not operationally distinct from those employees who would be excluded from the coverage of the proposed agreement.

Whether the group of employees is organisationally distinct

  1. In considering the concept of organisational distinctiveness the Full Bench in QGC described it as ‘the manner in which the employer has organised its enterprise in order to conduct those operations’[86]. I turn now to consider how Factory X has organised the operation of its clothing and fashion retail stores.

  1. It is apparent from the evidence which I have made findings above, that Factory X has a number of distinct brands which it sells through separate brand outlets, those being Dangerfield, Princess Highway and Gorman. While there are three distinct brands, there is some limited integration between Dangerfield and Princess Highway stores. This is seen through warehousing arrangements and the sale of Princess Highway product in Dangerfield stores although there is no reciprocal sale of Dangerfield product in Princess Highway stores. A similar returns policy applies in respect of Princess Highway product being able to be ‘returned’ at Dangerfield stores but not vice versa. I also note that gift cards purchased from either Dangerfield or Princess Highway stores may be redeemed at either store, but no such reciprocal arrangements operate in respect of Gorman store gift cards. These matters aside, the stores for each of the three brands operate quite separately.

  1. Notwithstanding the limited discreet integration between Dangerfield and Princess Highway when compared to Gorman that I have described above, there are an overwhelming number of features that reveal an organisational model that reveals little or no distinctiveness between each of the three brands. This is revealed through the unchallenged evidence of Ms Chapman regarding the organisational structure which sees the same structure of retail staff and store managers (with 2ICs and 3ICs where required) in each store regardless of brand, store managers report to area and state managers that may have responsibility across various brands. All state managers report to the National Retail Manager for Factory X.

  1. Factory X is the employing entity of all retail operations staff. When employing new staff members, it may deploy those persons to any of its three brands even though an individual may have applied for a position with a particular brand outlet. Factory X applies a single Code of Conduct across all of its organisation, provides the same terms and conditions of employment for retail staff (save for some differences in hours of work), uses the same retail position descriptions and delivers substantially the same training for all retail staff regardless of brand. As compellingly, visual merchandising formats used are consistent across the three brands, operational expectations are consistent across all stores and it applies the same systems including Sales assessment programs, mystery shops, foot traffic measurement, rostering and shift approval arrangements and payroll to all stores regardless of brand.

  1. The above features decisively point to their being no organisational distinctiveness between Dangerfield/Princess Highway and Gorman in my view. The limited integration in terms of sales, returns and gift cards between Dangerfield and Princess Highway that I have referred to above is heavily outweighed by the organisational alignment of all three brands under Factory X. As earlier stated, evidence on the movement of staff between the three brands was limited and does not tell in favour of either organisational integration or distinctiveness.

  1. Some tacit acknowledgment by RAFFWU Inc. of the above-described organisational alignment is clearly apparent from its national campaign against Factory X which extends to Gorman. While Mx Mulveney and Mr Johnstone sought to distance themselves from that campaign in their evidence, I found their expressed lack of knowledge or awareness of that campaign unconvincing. There is no doubt on the basis of RAFFWU Inc.’s own publications that Gorman is a target of that national campaign along with Dangerfield and Princess Highway. Beyond Mx Mulveney stating that members in Victoria had endorsed bargaining with respect to Dangerfield and Princess Highway stores, the evidence of the rationale of excluding Gorman staff was scant. The answer can perhaps be found in Mx Mulveney’s candid concession during cross-examination that exclusion of Gorman made securing of signatures easier.

  1. I am not persuaded that employees engaged by Factory X in its Victorian Dangerfield and Princess Highway stores are organisationally distinct from employees employed by it in its Gorman Victorian stores. Even if it were concluded there is some organisational distinctiveness between each of the three brands, that distinctiveness is no more or less between each of the three brands which would render exclusion of Gorman employees as arbitrary.

Summary on whether employee cohort is fairly chosen

  1. I have found that the employee cohort selected by RAFFWU Inc. for the purpose of bargaining with Factory X is neither geographically, operationally nor organisationally distinct. While that finding may not be determinative it does tell in favour of a finding that the group of employees is not fairly chosen. In circumstances where I have found that the selected cohort of employees lacks distinctiveness that I am required to take into account pursuant to s 237(3A), where RAFFWU Inc. are itself pursuing a campaign nationally against Factory X inclusive of Gorman, where the exclusion of Gorman employees is arbitrary and where no other relevant matters have been raised, I am not satisfied that the selected cohort of employees is fairly chosen.

Section 237(2)(d) - whether reasonable in all the circumstances to make the determination

  1. As stated above, I am not satisfied that the employee cohort was fairly chosen, that being one of the jurisdictional pre-requisites for the mandatory making of the MSD. In these circumstances it is not reasonable in all the circumstances to make the determination.

Conclusion

  1. I must make the MSD if I am satisfied of each of the requirements set out in ss 237(1) & (2) of the Act are met. As stated above, I am satisfied that an application has been made by RAFFWU Inc. (s 237(1)(a)), that a majority of employees who were employed at the relevant time determined by the Commission who would be covered by the Agreement want to bargain (s 237(2)(a) and that Factory X has not yet agreed to bargain (s 237(2)(b)). I have however found that the selected employee cohort was not fairly chosen (s 237(2)(c)) and that in those circumstances it is not reasonable in all the circumstances to make the MSD (s 237(2)(d)). It follows from the foregoing that the application by RAFFWU Inc. is dismissed.

DEPUTY PRESIDENT

Appearances:

J Cullinan for the Applicant.
M Moloney for the Respondent.

Hearing details:

2024.
Melbourne:
January 22.


[1] Exhibit R4, Witness Statement of Emma Chapman, dated 22 December 2023, at [7] & Attachment EC1. ABN entry for Factory X

[2] Ibid, at [9]

[3] Ibid at [33]

[4] Ibid at [6]

[5] Transcript dated 22 January 2024 at PN1114 - PN1120

[6] Exhibit R4, at [22]

[7] Ibid, at [18], [21]

[8] Exhibit R2, Photo of Dangerfield store, 202-204 Brunswick St Fitzroy

[9] Exhibit R3, Photo Gorman & Princess Highway stores, 188 Brunswick St Fitzroy

[10] Exhibit R4, at [14]-[16]

[11] Ibid at [13]

[12] Ibid, Attachment EC-2 & EC -3 Factory X Sales Assessment

[13] Exhibit R4, Attachment EC-4 Factory X Code of Conduct, dated August 2023

[14] Exhibit R4, at [13]

[15] Transcript at PN1015-PN1018, PN1241-PN1245

[16] Exhibit R4, at [23]

[17] Ibid, at [24]

[18] Ibid, Attachment EC-5, Contract of Employment

[19] Exhibit R4, at [25]

[20] Ibid, at [33]

[21] Exhibit A15, Second Witness Statement of Natalie Butler, dated 12 January 2024, at [31]-[35]

[22] Exhibit A13, Second Witness Statement of MX Mulveney, dated 12 January 2024, at [20], [23]-[26]

[23] Exhibit A20, Second Witness Statement of Stephanie Wickham, dated 1w2 January 2024, at [31]-[36]

[24] Exhibit R4, Attachment EC-6, Factory X Store Manager Position Description

[25] Ibid, at [26]

[26] MA000004

[27] Exhibit R4, at [30], [32]

[28] Ibid, at [31]

[29] Exhibit R4, at [45]-[47], Attachment EC-7, Transcript of RAFFWU Inc. TikTok video dated 6 December 2023

[30] Exhibit R4, at [47]

[31] Transcript at PN164-PN180

[32] Transcript at PN371

[33] Exhibit A12, Witness Statement of Mon Mulveney, dated 7 December 2023, at [16]-[18]

[34] Exhibit A12, Attachment MM-1, RAFFWU Inc. Petition

[35] Exhibit A12, at [19]

[36] Exhibit A7, Witness Statement of Jaslyn Tan, dated 4 December 2023

[37] Exhibit A12, at [40]

[38] Exhibit A14, Witness Statement of Natalie Butler, dated 2 December 2023, at [3]-[4]. Exhibit A12, at [41]

[39] Exhibit A21, Witness Statement of Rhiannon Howard, dated 2 December 2023, at [4]-[6], Exhibit A1, Witness Statement of Lio Moe, dated 5 December 2023, at [3]

[40] Exhibit A4, Witness Statement of Tegan Whitechurch, dated 29 November 2023, at [2]-[6], Exhibit A12, at [45]

[41] Exhibit A3, Witness Statement of Paige Laurie, dated 1 December 2023, at [3]-[4]

[42] Exhibit A12, at [47]-[50]

[43] Exhibit A17, Witness Statement of Renee Thierry, dated 2 December 2023, at [3]-[4]

[44] Exhibit A23, Witness Statement of Natalie-Lyn Pillar, dated 4 December 2023, at [2]-[5]

[45] Exhibit A12, at [53]

[46] Exhibit A12, at [63]

[47] Exhibit A12, at [65]-[66]

[48] Exhibit A12, at [67]-[69]

[49] Transcript at PN124-PN133

[50] Transcript at PN240-PN242

[51] Exhibit A14, at [4]-[5]

[52] Exhibit A15, at [45]

[53] Transcript at PN573-PN584

[54] Ibid at PN585-PN589

[55] Exhibit A18, Second Witness Statement of Renee Thierry, dated 12 January 2024, at [7]-[8]

[56] Transcript at PN744-PN751

[57] Exhibit A22, Second Witness Statement of Rhiannon Howard, dated 12 January 2024, at [2]

[58] Transcript at PN902-PN926

[59] Exhibit R4, at [41]-[43]

[60] Transcript at PN1096-PN1099

[61] Exhibit R5, Witness Statement of Hannah Maybury, dated 22 December 2023, at [8]

[62] Ibid at [9]

[63] Ibid at [10]-[12]

[64] Ibid at [13]

[65] Ibid at [14]

[66] Ibid at [15]-[19]

[67] Ibid at [23]-[27]

[68] Ibid at [28]-[32]

[69] Exhibit A15, at [20]-[25]

[70] Transcript at PN609-PN629

[71] Exhibit A13, Second Witness Statement of Mx Mulveney, dated 12 January 2023, at [30]-[36]

[72] Transcript at PN1219-PN1229

[73] Ibid at PN1239

[74] Exhibit R6, Witness Statement of  22 December 2023

[75] Exhibit R1, Email from Isabella Cox to Mx Mulveney, dated 22 November 2023

[76] Transcript, at PN446-PN465

[77] Exhibit A13, at [45], Attachment MM4

[78] Exhibit A12, Attachment MM-1, RAFFWU Inc. Petition

[79] [2012] FWAFB 2206.

[80] Ibid at [19]-[21]

[81] [2017] FWCFB 1165

[82] Ibid at [43]

[83] [2017] FWCFB 1165 at [42]

[84] Ibid at [44]

[85] MA000004

[86] [2017] FWCFB 1165 at [44]

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QGC Pty Ltd v Australian Workers' Union [2017] FWCFB 1165