Shop, Distributive and Allied Employees' Association (SDA) and the Australian Workers' Union (AWU) v Woolworths Group Limited

[2019] FWC 4660

[2019] FWC 4660

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.533 - Application for an FWC Order

Shop, Distributive and Allied Employees’ Association (SDA)
and
The Australian Workers’ Union (AWU)
v
Woolworths Group Limited; Woolworths (South Australia) Pty Limited T/A Woolworths
(C2019/3570 and C2019/3689)

DEPUTY PRESIDENT BULL SYDNEY, 3 JULY 2019

Dispute concerning consultation with registered employee associations in relation to major change. Commission recommendation made to resolve the dispute.

[1] On 4 and 5 June 2019, Woolworths Group Limited and Woolworths (South Australia) Pty Limited (collectively, Woolworths) announced a major change in structure to Woolworths’ Supermarket stores nationally, with the introduction of the ‘Customer Operating Model’. This change, in summary, reorganises the departments across each store and restructures the team and duty management, team support and clerical roles within each store.

[2] On 11 June 2019, the Shop, Distributive and Allied Employees’ Association (SDA) filed an application with the Fair Work Commission (Commission) seeking orders pursuant to ss. 531 and 532 of the Fair Work Act 2009 (the Act)(C2019/3570). On 17 June 2019, the Australian Workers’ Union (AWU) also filed an application seeking orders pursuant to ss. 531 and 532 of the Act (C2019/3689). On 18 June 2019, on application by the AWU the Commission joined the applications by the SDA and AWU in order to deal with them together.

[3] On 20 June 2019, the parties appeared before the Commission as currently constituted. The SDA and AWU expressed the concern received from their members concerning the introduction of the Customer Operating Model. Woolworths, in reply, expressed that it considered a jurisdictional requirement under s.531(1)(a) of the Act had not been satisfied. Nonetheless, the parties indicated an intention to resolve the dispute.

[4] In order to allow the parties’ time to hold further discussions about the dispute, Woolworths agreed to extend the timeline for employees to submit an expression of interest for a role in the Customer Operating Model. On 24 June 2019, the parties again appeared before the Commission. On this occasion, Woolworths made a number of meaningful compromises in order to address the genuine concerns of their employees, which were expressed through the SDA and AWU.

[5] The Commission issues this recommendation to bring this dispute to a close. It is issued having regard to the positions of all parties and the concessions made to date in an attempt to reach a final agreement.

Recommendation

[6] It is recommended that the dispute be resolved on the terms set out below:

(a) If Woolworths makes an offer of employment to an employee who is currently employed on a full-time basis and who has expressed an interest for a role as a Store Services & Compliance Officer, Assistant Department Manager or Team Manager in the Customer Operating Model, this offer of employment will be for full-time employment.

(b) When calculating severance pay for salaried employees being retrenched, Woolworths will apply the redundancy scale set out in the table in clause 20.7 of the Woolworths Supermarkets Agreement 2018 (the Agreement)(which is more generous than the redundancy scale in the NES), notwithstanding that the Agreement does not cover those salaried employees. Likewise, if a salaried employee elects to accept a role with a lower rate of pay and is eligible to receive a transition payment as part of the restructure, Woolworths will also apply the redundancy scale in clause 20.7 of the Agreement(which is more generous than the redundancy scale in the NES), when calculating the transition payment.

(c) Where an employee is being retrenched, but is required by Woolworths to continue working until the new structure takes effect (30 September 2019 in all States and Territories, except South Australia where it takes effect on 7 October 2019), Woolworths will pay, upon retrenchment, any such employee an additional amount of $2,000 as part of their retrenchment package, as a retention bonus for their continued attendance at work, provided they meet Woolworths’ performance and attendance expectations until their end date. Woolworths will clarify the eligibility criteria for receiving the additional retention bonus in writing.

(d) Salaried employees who accept a role as a “Store Services & Compliance Officer” in the new structure, which is covered by the Agreement,will be eligible to receive the “temporary transition rate” at Grade 4, as specified in Appendix C of the Agreement.

(e) The role of Head Reserve Stockhand is being made redundant as part of the restructure. Any employees currently employed in the role of Head Reserve Stockhand who receive a “temporary transition rate” under Appendix C of the Agreementwill continue to be paid such “temporary transition rate” under Appendix C of the Agreementif they remain employed by Woolworths. If Woolworths makes an offer of employment to an employee who is currently employed as a Head Reserve Stockhand on a full-time basis, this offer of employment will be for full-time employment.

(f) Woolworths does not agree to offer or seek voluntary redundancies. Woolworths indicated that it remains focused on retaining employees through redeployment opportunities. However, the SDA and AWU indicated that voluntary redundancy was a common issue raised by their members and sought a resolution. Accordingly:

i. The SDA and AWU may communicate to their members that, while Woolworths is not offering or seeking voluntary redundancies, any employee who has been notified that their role is to be made redundant and who expresses that they do not wish to participate in redeployment (and wish instead to be retrenched) may contact the SDA or AWU, and the SDA or AWU will engage Woolworths to consider that employee’s individual circumstances.

ii. Where the SDA or AWU refers an employee to Woolworths, Woolworths will consider the employee’s circumstances and will, where deemed appropriate by Woolworths, expedite the employee’s employment outcome letter. Woolworths will not unreasonably refuse to expedite an employee’s employment outcome letter. Woolworths may also elect to contact the employee for a further discussion to better understand the employee’s circumstances before making any decision.

(g) Woolworths agrees to address disputes brought by the SDA and AWU on behalf of individual team members in accordance with the process set out below to ensure the timely resolution of these disputes:

i. In accordance with the dispute resolution procedure in the Agreement, the SDA and AWU will attempt to resolve all disputes at the store level (with support from a Field Support Representative or Culture & People Partner) in the first instance.

ii. Where a dispute is unable to be resolved at the store level, the SDA and AWU will collate individual employee issues centrally in a template spreadsheet to be provided by Woolworths.

iii. Once per week for at least one hour, designated representatives from the SDA and/or AWU will meet with designated representatives from Woolworths to discuss the spreadsheet of individual disputes with a view to resolving or escalating each of them, as appropriate. Woolworths may use this meeting as an opportunity to provide feedback on interactions with SDA or AWU Delegates, Organisers or Officials, as necessary. The SDA and AWU may use this meeting as an opportunity to provide feedback on interactions with Woolworths Culture & People Partners, Field Service Support Representatives or other relevant Woolworths personnel.

iv. Woolworths will endeavour to respond to disputes escalated through this process within one week of being notified of the dispute.

v. The SDA and AWU will, in return, agree to ensure that Secretaries, Delegates, Organisers or Officials raise disputes through this process, although the SDA and AWU expressly reserve their rights to progress individual disputes if not resolved with Woolworths through the above process.

vi. The process outlined above will remain in place until 31 October 2019, after which time the usual dispute resolutions processes will resume.

(h) The SDA and AWU will agree to inform their Officials, Organisers and Delegates of the matters set out above and will use their best endeavours to ensure:

i. Communications from SDA and AWU Officials, Organisers and Delegates do not depart from the positions set out above.

ii. SDA and AWU Officials, Organisers and Delegates provide information to Woolworths’ employees in relation to the restructure and introduction of the Customer Operating Model, which is accurate and factually consistent with Woolworths’ communication materials.

(i) During the Commission process, the SDA and AWU sought clarification in relation to aspects of the notice, redeployment and retrenchment processes. Woolworths provided clarification of these matters during discussions before the Commission. Woolworths are to provide clarification of these matters in writing to the SDA and AWU to ensure all parties share a common understanding of these matters. The matters to be clarified include:

i. How Woolworths calculates a ‘transition payment’ for employees.

ii. How Woolworths proposes to treat employees who resign before they are retrenched, or who leave Woolworths before their formal retrenchment date.

iii. The treatment of notice periods for employees being retrenched.

[7] A recommendation by its very nature is not legally binding and cannot create or impose a legal right or obligation. Its adoption and implementation is dependent upon the consent and goodwill of the parties. I strongly urge all parties to seriously consider endorsing the recommendations.

[8] The parties are to inform each other and the Commission within 7 days of their intention to accept or otherwise the Commission’s recommendation, which if accepted by all parties is intended to resolve the dispute. The parties are free to agree to any variation of the above within the 7 days should they be inclined to do so. If the recommendations are accepted, the SDA and AWU will discontinue proceedings C2019/3570 and C2019/3689.

[9] The Commission remains available to assist the parties during this process as required.

DEPUTY PRESIDENT

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