Retail and Fast Food Workers Union (Raffwu) v Woolworths Group Limited T/A Big W
[2023] FWC 3006
•16 NOVEMBER 2023
[2023] FWC 3006
The attached document replaces the document previously issued with the above code on 16 November 2023.
A typographical error in the Respondent’s representative’s name was corrected, and in the heading above paragraph 51.
Associate to Deputy President Wright
Dated 17 November 2023.
| [2023] FWC 3006 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
Retail and Fast Food Workers Union (RAFFWU)
v
Woolworths Group Limited T/A Big W
(B2023/1223)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 16 NOVEMBER 2023 |
Application for a bargaining order – employer did not meet good faith bargaining requirements – making order will not have any significant effect on terms of proposed agreement – order not made
This is an application by the Retail and Fast Food Workers Union (RAFFWU) for a bargaining order under s.229 of the Fair Work Act 2009 (FWAct) against Woolworths Group Limited T/A Big W (Big W or Woolworths) in relation to bargaining for an enterprise agreement for employees who work at Big W stores throughout Australia.
The application is opposed by Woolworths, the Australian Workers’ Union (AWU) and the Shop, Distributive and Allied Employees’ Association (SDA). The AWU and the SDA are registered organisations and default employee bargaining representatives under the FW Act.
In summary, I have found that Woolworths did not meet the good faith bargaining requirements when issuing the proposed enterprise agreement to employees on 28 October 2023, before it had provided RAFFWU with a genuine opportunity to consider the agreement and provide responses that Woolworths could then consider. However, I am not satisfied that it is reasonable to make the order sought by RAFFWU given my findings that delaying the vote will not have any or any significant effect on the terms of the proposed agreement. Further, the AWU and SDA support the proposed agreement and oppose the making of any orders which will delay the vote and there is a possibility that delaying the vote may affect the implementation of benefits under the proposed agreement to employees.
The Application
RAFFWU filed the application on 8 November 2023, the date prior to the access period commencing in relation to the proposed enterprise agreement.
I listed the matter for directions on 9 November 2023 and made directions for the filing and serving of material. At the directions hearing, RAFFWU sought an order that Woolworths cease the access period. I declined to make the order on the basis that I would hear and determine the matter prior to 17 November 2023, which is the date that voting for the agreement is due to commence.
RAFFWU filed submissions and a witness statement by Mr Joshua James Cullinan, Secretary of RAFFWU, on 10 November 2023. Woolworths filed submissions and a witness statement by Ms Christie Marie De Marchi, Workplace Relations Partner, on 13 November 2023. The SDA and the AWU both filed submissions on 13 November 2023. In their submissions, RAFFWU sought the following orders:
Woolworths Group meet with RAFFWU on three occasions between 17 November and 1 December 2023 to discuss the proposed agreement;
During the meetings between 17 November and 1 December 2023, Woolworths genuinely consider and discuss any proposals by RAFFWU with RAFFWU;
Woolworths Group provide written responses to any proposals by RAFFWU at least 24 hours before each meeting between 17 November and 1 December 2023;
Woolworths Group refrain from explaining the terms of a proposed agreement for the purposes of s 180(5) of the Fair Work Act 2009 (Cth) until at least 2 December 2023.
Woolworths refrain from requesting employees to approve the proposed agreement until 2 December 2023.
Background Facts
The facts of the matter are largely uncontested. Big W is an Australian chain of discount department stores owned and operated by Woolworths. Woolworths operates 177 Big W Stores across Australia.
Approximately 15,060 employees working for Big W are employed under the Big W Stores Agreement 2019 (the 2019 Agreement). The 2019 Agreement has a nominal expiry date of 5 May 2022.
On 28 April 2022, Woolworths initiated bargaining for a new enterprise agreement by issuing a notice of representational rights.
Woolworths believes, based on a report of union payroll deductions, that approximately 54% of employees covered by the 2019 Agreement are members of either the SDA or the AWU.
As at 7 November 2023, Woolworths had been notified that RAFFWU represented 21 Big W employees, of whom 7 were no longer employed by Woolworths. On 8 November 2023, RAFFWU provided Woolworths with a further 9 notices of appointment, taking the total number of current employees represented by RAFFWU to 23.
RAFFWU sent its log of claims to Woolworths on 7 July 2022 and asked to participate in any and all meetings held with bargaining representatives to ensure transparent and open negotiations in pursuit of a satisfactory agreement. On 1 September 2022, Christie De Marchi, Woolworths’ Workplace Relations Partner wrote to Mr Cullinan proposing a meeting on 6 October 2022. Ms De Marchi’s letter stated that at this stage, Woolworths intended to meet with RAFFWU separately to ensure that bargaining proceeds efficiently and to enable consideration of all claims without unnecessarily tying up other bargaining representatives to discuss matters that pertain to RAFFWU’s members.
The first bargaining meeting between RAFFWU and Woolworths took place on 21 October 2022 due to the unavailability of Ms De Marchi on 6 October 2022. Further bargaining meetings took place between RAFFWU and Woolworths on 18 November 2022, 31 January 2023, 9 February 2023, 24 August 2023, 18 September 2023 and 10 October 2023. Mr Cullinan attended all of these meetings.
During the meeting on 10 October 2023, Ms De Marchi informed Mr Cullinan that Woolworths anticipated reaching agreement with the other bargaining representatives soon. Mr Cullinan committed to contacting Woolworths to arrange further bargaining meetings but did not propose any further meeting dates after 10 October 2023.[1]
Woolworths reached in-principle agreement with the SDA and the AWU on 11 October 2023. Woolworths then prepared a draft proposed agreement reflecting the in-principle agreement that the parties had reached. Woolworths and the SDA exchanged several drafts of the proposed agreement over the following two weeks. The SDA's delegates endorsed the in-principle agreement on 20 October 2023. At that time the draft proposed agreement was not yet finalised. Woolworths and the SDA agreed on the drafting of the proposed agreement late in the day on 23 October 2023.[2]
On 24 October 2023, Woolworths arranged for copies of the proposed agreement to be printed so that they could be made available in all BIG W stores from the commencement of the access period. Woolworths also printed posters directing team members to a micro-site where they could get more information in relation to the proposed agreement. The micro-site contains a copy of the proposed agreement and various explanatory documents, including the Team Member explanatory pack, 19 Facts Sheets, Frequently Asked Questions, and an Agreement Summary.[3]
On 27 October 2023, Ms De Marchi sent Mr Cullinan a letter advising that Woolworths had reached an in-principle agreement with the SDA and the AWU on the proposed agreement, which has now been endorsed by each of those union’s delegates and provided a copy of the agreement. Ms De Marchi advised that information sessions in relation to the proposed agreement have commenced with team members in Big W stores and that Big W intended to request that team members approve the proposed agreement with voting to take place between 17 and 27 November 2023.[4]
Mr Cullinan’s evidence is that until 27 October 2023, RAFFWU had never seen the proposed agreement nor the proposals in relation to Wages, SDA entitlements, Boosted Leave provisions, Multi-Site work, Dispute Resolution and a range of other provisions contained in the proposed agreement.[5] RAFFWU has not had the opportunity to discuss these new matters with members in detail, or bargain with Woolworths about them at all. [6]
Mr Cullinan says that if RAFFWU been informed of the in-principle agreement earlier in time, RAFFWU would have:
Sought to meet with Woolworths to understand the proposal;
Presented the proposal to members and sought their feedback or potential compromises;
Proposed appropriate terms to Woolworths Group in an effort to reach agreement;
Negotiated the terms of the proposed agreement with Woolworths Group; and
Sought to reach agreement on an enterprise agreement with Woolworths Group.[7]
On 28 October 2023, Laura Rafiqi, a Big W employee who is represented by RAFFWU in bargaining, sent Mr Cullinan a range of documents which had been made available to employees on the online portal. These documents included:
BIG W 2023 Stores Agreement FAQs (last updated 19 October 2023) which provided that ‘voting will open at 9:00am AEDT on 17th November and will close at 4:00pm AEDT on 27th November’;
Highlights of your new Enterprise Agreement dated 23 October 2023;
BIG W Retail Enterprise Agreement 2023 - Agreement Summary which also referred to voting taking place from 17 November to 27 November 2023.[8]
On 1 November 2023, Mr Cullinan sent Ms De Marchi a letter advising that:
At no time prior to 27 October 2023 had Big W communicated its offers or substantive proposals to RAFFWU.
RAFFWU has previously written to Woolworths outlining the clauses not provided and has reiterated those issues in subsequent meetings.
The proposed agreement was the first communication of any wage proposals, allowance proposals and a large number of other proposals which had never been communicated or discussed by Woolworths with RAFFWU. The conduct of Woolworths has denied RAFFWU the opportunity to bargain on those matters.
Upon receipt of the Woolworths proposals, RAFFWU will be in a position to consider our claims and seek to reach compromise. Woolworths was on notice of RAFFWU’s approach and at no time did Woolworths raise concerns about RAFFWU’s approach.
Clearly the detail of the proposed agreement has been discussed and communicated in writing with other bargaining representatives some time ago.
The conduct of Woolworths involves egregious failures to meet the good faith bargaining requirements.[9]
Mr Cullinan’s letter requested that Woolworths respond by 5pm on 6 November 2023 including by agreeing to:
immediately communicate with all employees that the proposed agreement will not be voted on the days communicated;
provide a written explanation as to the basis of each of the Woolworths proposals not previously communicated to RAFFWU;
meet with RAFFWU on 3 occasions in the fortnight commencing 13 November 2023;
in those meetings answer the questions of RAFFWU which arise from the written explanation above;
genuinely consider the proposals of RAFFWU made in those meetings;
provide written responses to each proposal made by RAFFWU; and
refrain from commencing any access period for a proposed agreement until all RAFFWU proposals which arise from the meetings referred above have been considered and responded to.[10]
By letter dated 3 November 2023, Ms De Marchi advised RAFFWU that Woolworths would respond to Mr Cullinan’s letter by 5:00pm on Monday 6 November 2023 and that in the meantime, Woolworths was available to meet with RAFFWU at any time 6, 7 or 8 November 2023 in relation to the proposed agreement to answer any questions and to consider any proposals that RAFFWU wishes to raise.[11]
At 8:27am on 6 November 2023 Mr Cullinan indicated that he was available to meet Woolworths at 2:00pm on 10 November 2023 to ask questions about the proposed terms assuming a comprehensive and thorough explanation, with costings, is provided by Woolworths.[12]
On 6 November 2023, Woolworths sent a letter to RAFFWU in which it denied that it was not meeting the good faith bargaining requirements. The letter invited RAFFWU to provide any proposals it wished Woolworths to consider by 2pm on Wednesday 8 November 2023 so that these could be considered before the commencement of the access period. The letter indicated that Woolworths remained prepared to consider and respond to any questions that RAFFWU has in relation to the proposed agreement and to consider and respond to any further proposals put by RAFFWU. The letter stated that at this stage, and subject to considering any proposals RAFFWU raised in response to the proposed agreement, Woolworths is not prepared to delay the access period for the proposed agreement due to commence on 9 November 2023 or the team member voting process scheduled for 17-27 November 2023.[13]
On 10 November 2023, RAFFWU and Woolworths participated in a meeting in which Mr Cullinan asked about a number of provisions in the proposed agreement including classifications, wages, multi-site work, boosted leave, dispute resolution and SDA rights.[14]
During the hearing on 15 November 2023, Mr Cullinan gave evidence that he had scheduled a meeting of members for the night of Thursday 16 November 2023 to discuss the responses from Big W and prepare any proposals in response.
Following this meeting, RAFFWU intends to meet with Woolworths to explain RAFFWU’s responses and make counter proposals. RAFFWU expects those counter proposals to be carefully considered by Woolworths. RAFFWU would then discuss the responses to their proposals with members and make final proposals to Woolworths.[15] Mr Cullinan estimates it will take approximately two weeks to schedule meetings of members and speak with members unable to attend the member meetings, as well as meet with Woolworths to discuss the members’ feedback and Woolworths’s responses.[16]
Ms De Marchi provided evidence that Big W implements a freeze on any system changes and team member communications (other than essential communications) during December and early January so that employees are able to focus on customer service during busy holiday season trading period. Having reached in-principle agreement with the SDA and the AWU, Woolworths intends to progress to an employee vote as soon as practicable, and before the communications freeze commences.[17]
If a vote is conducted after 27 November 2023 and before 26 January 2024, this will put extreme operational pressure on Big W stores during the busiest trading period of the year, and there is a risk that employees will not be able to take the time required to understand and consider the proposed agreement.[18]
The proposed agreement provides that if it is approved on or after 13 January 2024, the Agreement will commence at the start of the first full pay cycle that commences at least 9 weeks from the date the Agreement is approved. If the vote is delayed until late January/early February 2024, this will delay employees from receiving certain benefits under the Proposed Agreement.[19]
Submissions
RAFFWU
RAFFWU submits that in finalising the terms of the proposed agreement with other bargaining representatives without telling or bargaining with RAFFWU first, Woolworths did not meet its good faith bargaining requirements to:
Disclose relevant information in a timely manner;
Refrain from capricious and unfair conduct that undermines freedom of association or collective bargaining; and,
Bargain with RAFFWU.
By failing to advise RAFFWU that it was finalising a proposed agreement with other bargaining representatives, failing to provide RAFFWU the new terms until they were finalised, and failing to meet and bargain with RAFFWU about those new terms, Woolworths did not meet its good faith bargaining obligations.
On 27 October 2023, RAFFWU saw many of the terms in the proposed agreement, including its wage claim, the SDA rights clause, claims on multi-site work, and the dispute resolution term, for the first time. Woolworths never afforded RAFFWU an opportunity to make proposals about the new terms.
By engaging in this conduct, Woolworths prevented RAFFWU from consulting with its members about new terms, using that opportunity to provide Woolworths its proposals and positions, and consequently bargaining for the proposed agreement. By these actions, RAFFWU’s members have unfairly been prevented from participating in the bargaining process, and Woolworths has failed to meet its good faith bargaining obligations.
The proposed agreement had been finalised with the SDA and the AWU on 11 October 2023, one day after Woolworths met with RAFFWU, and made no real proposals at all. If Woolworths had given RAFFWU the new terms in the proposed agreement before 11 October 2023, and advised RAFFWU that it was finalising the new terms with the other bargaining representatives, it could have met with RAFFWU and considered its proposals about the proposed agreement. RAFFWU has significant concerns about the new terms which it has not been able to bargain about.
By failing to advise RAFFWU that it was finalising the proposed agreement, and not telling RAFFWU that the new terms that were being finalised, Woolworths has not provided important and relevant information to RAFFWU and as such has not met the requirements in s.228(1)(b) of the FW Act.
By finalising the proposed agreement with the other bargaining representatives but failing to tell RAFFWU both at the meeting on 10 October, and before the final terms were put to employees, Woolworths acted capriciously and unfairly and as such undermined RAFFWU’s role in bargaining, and its employees’ rights to freedom of association contrary to s.228(1)(e) of the FW Act. It also failed to bargain with RAFFWU for key terms, in breach of s.228(1)(f) of the FW Act
When Woolworths told RAFFWU that the proposed agreement had been finalised and would be put to a vote on 17 November, neither party was at an impasse because RAFFWU had not had the opportunity to review or discuss many of its terms. As such, Woolworths’s actions in finalising the proposed agreement and putting its terms to a vote of employees without bargaining with RAFFWU was a capricious and unfair act that undermined freedom of association, offending s.228(1)(e) of the FW Act.
For the good faith bargaining obligations to be met, more time is needed for RAFFWU speak with its members and delegates and bargain with Woolworths before employees are asked to vote on the proposed agreement. A two-week period of three meetings is sufficient.
Woolworths
The purpose of s.228(1)(b) is to facilitate the disclosure of information relevant to matters the subject of the negotiations (e.g., the disclosure of salary rates across pay bands, or the disclosure of number and timing of work hours). Accordingly, the information that RAFFWU alleges should have been disclosed to it must be identified with particularity.
However, RAFFWU does not identify any particular piece of information that Woolworths has failed to disclose. The highest the allegation goes is that RAFFWU alleges that it was not notified that terms of the proposed agreement ‘were being finalised’. This submission is misconceived. RAFFWU was already aware of the fact that negotiations were ongoing between Woolworths, SDA and AWU, and had been aware of that fact since 1 September 2022. Once the fruits of those negotiations crystallised, in the form of the proposed agreement, RAFFWU was notified. It then had the opportunity to raise concerns, provide responses, advance proposals, and meet with Woolworths.
The essence of RAFFWU’s complaint appears to be that it did not have an opportunity to negotiate in the presence of the SDA or the AWU. However, that should not be regarded as an element of good faith bargaining falling within the requirements of s.228(1) generally, or s.228(1)(b) in particular.
In relation to s.228(1)(e) of the FW Act, it is not sufficient that a bargaining representative merely engage in unfair conduct in the context of bargaining. The unfair conduct must undermine freedom of association and/or undermine collective bargaining. This will at least require that the conduct is part of, connected to, or has an impact upon the bargaining process.
Woolworths’ approach to bargaining has not been unfair, nor has it undermined the right to freedom of association or collective bargaining. RAFFWU has been recognised as a bargaining representative, has had the opportunity to meet with Woolworths to discuss matters relevant to the interests of the employees it represents, and to put proposals for consideration. Simply because Woolworths was able to reach agreement with other bargaining representatives does not mean it has acted unfairly or undermined collective bargaining.
There is no obligation that the parties reach impasse prior to an enterprise agreement being put to a ballot of employees. All that is required is evidence that negotiations have reached such a stage that the employer is entitled to put its proposal to a ballot in order to see if progress has been made.
In relation to s.228(1)(e) of the FW Act, Woolworths submitted that it has at all relevant times recognised and bargained with RAFFWU.
RAFFWU was provided with a copy of the proposed agreement on 27 October 2023. It has had the opportunity since then to obtain instructions from the employees it represents and advance any relevant proposal it wished to in relation to the proposed agreement. On 3 November 2023, Woolworths offered to meet with RAFFWU at any time on 6, 7 or 8 November 2023 to answer any questions and to consider any proposals that RAFFWU wished to raise in relation to the proposed agreement. RAFFWU has made no proposals during the meeting on 10 November 2023 or in writing at any time since 27 October 2023, and there is no evidence of any steps taken to obtain instructions from the employees it represents.
In relation to whether it is reasonable to make the orders sought, there is no evidentiary basis for RAFFWU’s claim that more time is needed. There is no evidence that RAFFWU has done anything to try and obtain information from the employees it represents regarding any response to the proposed agreement. If there was a specific issue about which RAFFWU needed clarification, then that could have been addressed with Woolworths directly.
It is otherwise unreasonable for RAFFWU, who represent 0.15% of the Big W workforce to be covered by the proposed agreement, to frustrate or delay Woolworths’ attempts to put the proposed agreement to a ballot of its employees. That is particularly so given that Woolworths has, at all relevant times, acted with the best of intentions in an attempt to try and reach an agreement with its workforce, and both the SDA and AWU support the making of the proposed agreement.
SDA
The SDA submitted that the proposed agreement includes a significant number of improvements over the current agreement including pay increases, an additional week of leave (referred to as Boosted Leave), a four-day working week for permanent employees (by agreement), additional opportunity for part time employees to increase their hours and a process for employees to address any workload issues.
The SDA sought endorsement of the proposed agreement from its store delegates. Between 18 and 20 October 2023, each SDA Branch held a delegates meeting. At the meetings, SDA Branch officials explained the details of the proposed agreement using a PowerPoint presentation and providing the opportunity for questions. SDA delegates in every state endorsed the proposed agreement.
Following settlement between the SDA and Woolworths Group of the in-principle proposed agreement, a timetable for the information sessions, access period and ballot for the proposed agreement was proposed by the Woolworths Group and supported by the SDA.
SDA Branch officials commenced visiting Big W stores on and from 24 October 2023 and continue to meet with employees to explain the terms and conditions of the proposed agreement and in particular to identify any changes compared with the current agreement. The process for the arrangements in preparation for seeking formal endorsement from the employees is well advanced.
Given the relatively protracted extent of earlier negotiations, the SDA strongly supports Woolworths in facilitating arrangements to bring the proposed agreement before the employees for their consideration and potential approval as expeditiously as possible. To the extent that RAFFWU seeks orders which may frustrate this process, the SDA opposes the making of such orders.
AWU
The AWU submitted that the proposed timeframe for the balloting of the proposed agreement should not be disturbed by the Commission because this would delay significant advantages conferred to the employees. Such a delay is not supported by the AWU.
Relevant legislation
The good faith bargaining requirements are set out in s.228 of the FW Act which provides:
228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
Note: See also section 255A (limitations relating to greenfields agreements).
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.
If a bargaining representative has concerns that one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements, they may apply to the Commission for a bargaining order in relation to the agreement under s.229 of the FW Act which provides:
229 Applications for bargaining orders
Persons who may apply for a bargaining order
(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.
Note: See also section 255A (limitations relating to greenfields agreements).
Multi‑enterprise agreements
(2) An application for a bargaining order must not be made in relation to a proposed multi‑enterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement.
Timing of applications
(3) The application may only be made at whichever of the following times applies:
(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:
(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or
(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;
(b) otherwise—at any time.
Note: An employer that is required to give a notice of employee representational rights under subsection 173(1) cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice is given.
Prerequisites for making an application
(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:
(a) has concerns that:
(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and
(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.
Non‑compliance with notice requirements may be permitted
(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.
Section 230 sets out the requirements that the Commission must have regard to before making a bargaining order and provides:
230 When the FWC may make a bargaining order
Bargaining orders
(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:
(a) an application for the order has been made; and
(b) the requirements of this section are met in relation to the agreement; and
(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.
Note: See also section 255A (limitations relating to greenfields agreements).
Agreement to bargain or certain instruments in operation
(2) The FWC must be satisfied in all cases that one of the following applies:
(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;
(aa) the employer or employers have received a request to bargain under subsection 173(2A) in relation to the agreement;
(b) a majority support determination in relation to the agreement is in operation;
(c) a scope order in relation to the agreement is in operation;
(d) all of the employers are specified in a supported bargaining authorisation that is in operation in relation to the agreement;
(e) all of the employers are specified in a single interest employer authorisation that is in operation in relation to the agreement.
Good faith bargaining requirements not met
(3) The FWC must in all cases be satisfied:
(a) that:
(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.
Bargaining order must be in accordance with section 231
(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).
Consideration
There is no dispute, and I am satisfied that Woolworths has initiated bargaining for the agreement, that RAFFWU is a bargaining representative for the proposed agreement, that the application has been made during the period prescribed by s.229(3)(a) and that RAFFWU has complied with s.229(4).
I therefore need to determine whether Woolworths has not met, or is not meeting, the good faith bargaining requirements, and if so, whether it is reasonable in all of the circumstances to make the orders sought by RAFFWU.
RAFFWU does not allege that Woolworths failed to meet the good faith bargaining requirements prior to 10 October 2023. RAFFWU’s concerns are that upon being provided with the proposed agreement on 27 October 2023, the employees it represents were deprived of an opportunity to consider terms of that agreement which were not previously communicated to them and to provide feedback about those terms in addition to pressing their own proposals and positions. The effect of this is that neither party was at an impasse because RAFFWU had not had the opportunity to review or discuss many of the terms of the proposed agreement.
Woolworths does not dispute that the proposed agreement contains terms that were not previously communicated to RAFFWU. However, Woolworths claims that RAFFWU could have obtained instructions from the employees it represents, advanced any relevant proposal it wished to in relation to the proposed agreement and met with Woolworths at any time on 6, 7 or 8 November 2023 so that Woolworths could answer any questions and consider any proposals that RAFFWU wished to raise in relation to the proposed agreement. Such actions showed that Woolworths was meeting the good faith bargaining requirements and, would, in effect, remedy any disadvantage caused if there have been any ‘technical’ breaches of these requirements. This submission from Woolworths suggests that bargaining between Woolworths and RAFFWU could continue despite there being an agreement in principle between Woolworths, the SDA and the AWU.
Both parties relied upon the decision of the Full Bench in Construction, Forestry, Mining and Energy Union-Mining and Energy Division v Tahmoor Coal Pty Ltd[20] in relation to the issue of whether the conduct of a ballot without the agreement of other bargaining agents constitutes a breach of the good faith bargaining requirement to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining. In this decision, the Full Bench did not mandate any particular circumstances in relation to whether a ballot can or cannot occur. However, the Full Bench indicated that neither agreement with all bargaining representatives or an impasse is a necessary precondition prior to the conduct of a ballot, although there might be some circumstances in which the conduct of a ballot without the agreement of other bargaining agents constitutes a breach of the good faith bargaining requirements. The Full Bench suggests that consideration of whether the good faith bargaining requirements have been adhered to might have regard to whether there had been a reasonable opportunity to discuss the employer’s latest proposal before the vote or whether negotiations had reached such a stage that the employer was entitled to put its proposal to a ballot in order to see if progress could be made.[21]
In my view, Woolworths’s assertion that RAFFWU could have met with Woolworths to continue bargaining between receiving the proposed agreement on 27 October 2023 and the access period commencing on 9 November 2023 is problematic. If RAFFWU had met with Woolworths during this period and suggested changes to new terms of the proposed agreement, section 228(1)(d) of the FW Act would require Woolworths to give genuine consideration to these proposals. It is difficult to see how Woolworth’s consideration of such proposals would not be coloured by the significant logistical issues that would emerge if changes to the proposed agreement were made as a result of accepting RAFFWU’s proposals.
Based on the steps that have been undertaken by Woolworths, the SDA and the AWU between 10 and 27 October 2023, it would be necessary for Woolworths to discuss the changes with the SDA and AWU, then assuming agreement was reached, it would be necessary for the SDA and AWU to have the changes endorsed by their delegates. Once this occurred, it would be necessary for Woolworths to reprint hard copies of the proposed agreement which have been distributed to every one of its 177 Big W stores, amend the explanatory pack, Fact Sheets, Frequently Asked Questions, and Agreement Summary documents, and for employees to attend additional briefing sessions. Woolworths has not provided any evidence about how it would attend to all of this during the short time period where it was available to meet with RAFFWU and the commencement of the access period.
I accept Ms De Marchi’s evidence that if RAFFWU had made proposals in relation to the proposed agreement before the commencement of the access period these would have been considered by Woolworths, but I do not accept that they would have been genuinely considered. This is because the consideration of logistical steps required to change the proposed agreement would inevitably influence the attitude of the decision maker in relation to any changes and reduce the likelihood that such changes are regarded with an open mind.
Furthermore, if Woolworths was open to genuinely considering RAFFWU’s views about the terms that had not been previously communicated to RAFFWU, it would not have taken the steps it did to ‘lock in’ the terms of the proposed agreement and voting date, by printing copies of, and developing material explaining the terms of the proposed agreement. It is unlikely that the current timeframe for voting on the proposed agreement would have been disturbed if Woolworths had shared the new terms with RAFFWU after the SDA's delegates endorsed the in-principle agreement on 20 October 2023 or before the proposed agreement was sent to the printer on 24 October 2023. Woolworths has not provided any reasons as to why it did not advise RAFFWU of the proposed agreement until 27 October 2023.
I find that Woolworths’s actions in delaying the provision of the new terms in the proposed agreement to RAFFWU until 27 October 2023 amounts to unfair conduct that undermines collective bargaining. I also find that this is inconsistent with Woolworths’ obligation to recognise and bargain with the other bargaining representatives for the agreement. Given that the SDA and AWU represent approximately 54% of the employees covered by the Agreement, I accept that negotiations have reached a stage that Woolworths is entitled to put its proposal to a ballot in order to see if progress can be made. However, RAFFWU should have first been provided with been a reasonable opportunity to discuss Woolworths’s proposal before this was presented to employees on 28 October 2023 as an agreement in principle which they would be asked to vote on.
I find that the new terms of the proposed agreement which had not been previously shared with RAFFWU is ‘relevant information’ for the purposes of s.228(1)(a) of the FW Act. This is self-evident as it is difficult to contemplate a more critical piece of information relevant to bargaining as the terms of a proposed agreement. I believe that it would have been reasonable for Woolworths to provide the new terms in the proposed agreement to RAFFWU between the period from 20-24 October 2023. That it did not do so resulted in RAFFWU not receiving the information on a ‘timely manner’ as required by s.228(1)(a).
For the reasons above, I find that Woolworths have not met the good faith bargaining requirements in s.228(1)(a), (e) and (f) of the FW Act.
I now must consider whether it is reasonable in all circumstances to make the order sought by RAFFWU.
The circumstances in this case involve 15,060 employees, three employee bargaining representatives, and a large national retail business. The employees and their employer are about to experience a heightened volume of trading for the next two months. Bargaining for a new agreement has taken approximately twelve months.
It is relevant to my consideration of these circumstances that the AWU and SDA between them represent approximately 54% or 8,132 employees and that RAFFWU represents 0.15% or 23 employees.
In brief, RAFFWU seeks that voting on the agreement be delayed so that Woolworths and RAFFWU can meet on three occasions between 17 November and 1 December 2023 in relation to the proposed agreement.
The evidence has established that RAFFWU submitted 48 claims on behalf of the employees it represents, and that during bargaining meetings with Woolworths it has continued to press all claims. RAFFWU is entitled to do this and s.228(2)(a) provides that a bargaining representative is not required to make concessions during bargaining for the agreement. It is possible that RAFFWU has, since the last meeting with Woolworths, prioritised and/or reduced the number of claims, however there is no evidence of this before the Commission. It is also possible that rather than reaching agreement on all matters, RAFFWU is seeking three meetings with Woolworths to reach agreement on discrete issues in the proposed agreement. I believe that it is unlikely that RAFFWU and Woolworths would be able to reach agreement in relation to the proposed agreement over the course of two weeks, having regard to the number of RAFFWU’s claims. Without evidence of the extent or number of discrete issues that could be resolved, assuming that this is one of RAFFWU’s intentions in seeking the meeting, I am unable to find that it is likely that RAFFWU and Woolworths would reach agreement on these issues within the timeframe proposed in the orders sought by RAFFWU.
Mr Cullinan has provided evidence of RAFFWU’s concerns in relation to the new terms in the Agreement. Although Mr Cullinan was accompanied by two of the employees that RAFFWU represents at the meeting with Woolworths on 10 November 2023, there is no evidence as to what extent, if any, that RAFFWU has consulted with the employees they represent about whether they share RAFFWU’s concerns. There is evidence that Mr Cullinan sought the views of the employees that RAFFWU represents on 31 October 2023 as to whether they wish RAFFWU to raise good faith bargaining requirements with Woolworths, but this does not assist me to determine whether these employees have concerns in relation to the new terms of the proposed agreement. I am therefore unable to find that the employees represented by RAFFWU have concerns about the proposed agreement, and that they want voting for the proposed agreement to be delayed.
Having regard to the lack of evidence from RAFFWU about the likelihood of reaching agreement with Woolworths if the vote is delayed and whether employees represented by RAFFWU are concerned about the terms of the proposed agreement, I believe that delaying the vote will not have any or any significant effect on the terms of the proposed agreement.
The AWU and SDA support the proposed agreement and oppose the making of any orders which would delay the vote. According to Woolworths, there are reasons associated with holiday season trading and reduced communication with employees that make it desirable that the vote proceed as scheduled and not be delayed. There is also a possibility that delaying the vote may delay the implementation of benefits under the proposed agreement to employees. I have had regard to these factors and my findings that delaying the vote will not have any or any significant effect on the terms of the proposed agreement. For these reasons I am not satisfied that it is reasonable in all circumstances to make the order.
I therefore dismiss the application.
DEPUTY PRESIDENT
Appearances:
G Morgan-Cocks on behalf of RAFFWU.
M Minucci on behalf of Woolworths.
Hearing details:
2023
15 November
Sydney.
[1] Exhibit 2, 63.
[2] Ibid, 67.
[3] Ibid, 86.
[4] Exhibt 1,39, JJC-11.
[5] Ibid, 40-47.
[6] Ibid, 48.
[7] Ibid, 49.
[8] Ibid, JJC-12.
[9] Ibid, 53, JJC-13.
[10] Ibid, JJC-13.
[11] Ibid, 54, JJC-14.
[12] Ibid, 55, JJC-15.
[13] Ibid, 56, JJC-16.
[14] Ibid, 60-62.
[15] Exhibit 2, 70.
[16] Idid, 71.
[17] Ibid, 82.
[18] Ibid, 89.
[19] Ibid, 91.
[20] [2010] FWAFB 3510.
[21] Ibid, [30].
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