Shop, Distributive and Allied Employees Association v Woolworths Group
[2024] FWC 2064
•2 AUGUST 2024
| [2024] FWC 2064 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Shop, Distributive and Allied Employees Association
v
Woolworths Group
(C2024/3324)
| COMMISSIONER HUNT | BRISBANE, 2 AUGUST 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 23 May 2024, the Shop Distributive & Allied Employee’s Association (QLD Branch) (the SDA) filed a s.739 dispute in relation to an underpayment of wages by Woolworths Group (Woolworths) in respect of SDA members covered by the Woolworths Group Limited Brisbane Regional Distribution Centre Enterprise Agreement 2021 (the Agreement).
The underpayment of wages is not disputed; it is agreed by Woolworths that underpayments to employees who have been paid an exemption rate were made on an incorrect calculation. Woolworths had been calculating the hourly rate of exempt team members by dividing the weekly rate by 40, instead of 38.
Having been alerted to the error, Woolworths configured its systems in November 2023 to ensure employees employed under the Agreement are prospectively being paid correctly, however it acknowledges that a back payment is owed to relevant employees.
The SDA made inquiries from November 2023 as to when the back payment would be made to members. In late November 2023, Woolworths responded that it anticipated to be in a position to remediate current team members in approximately April to June 2024, including as far back as February 2017 for work performed under an earlier enterprise agreement. Woolworths’ communication confirmed that back payments will include interest and superannuation, where applicable.
The SDA sought a part-payment to be made prior to 25 December 2023, however this was rejected by Woolworths on account of how complex the remediation program is.
The SDA made the application in May 2024 on account of there being no assurance from Woolworths that the back payment will be made to its members prior to the end of the 2024 financial year.
On 3 June 2024, in its written response to the dispute application, Woolworths detailed that the remediation work to back pay employees is complex and had been announced to the Australian Stock Exchange. There are 20 distribution centres across its Primary Connect network, with the Brisbane Regional Distribution Centre (BRDC) being allocated to the first group for action.
Woolworths proposed to commence a consultation process with affected employees at the BRDC in the week commencing 10 June 2024 and anticipated that it could make payments to affected employees in the week commencing 12 August 2024.
I convened a telephone conference with the parties on 4 June 2024. The parties agreed to further meet to attempt a resolution as to when the back payment would be made. I informed the parties that if the back payment was not made promptly, I might be inclined to issue a recommendation in this matter.
On 21 June 2024, the SDA reported that the parties had met twice since the 4 June 2024 conference, and it had been agreed that the back payment would be made by Woolworths in the week commencing 12 August 2024. An extraordinary joint consultative committee (JCC) meeting was to be held in mid-July 2024, where SDA delegates were to be asked to support the SDA to agree to the payment being made in the week commencing 12 August 2024.
The SDA requested that the Commission make a recommendation if, after the JCC meeting, members are seeking greater certainty that they will be paid the back payment in the week commencing 12 August 2024.
Woolworths communicated on 21 June 2024 that it considered that the making of a recommendation was unnecessary.
On 26 July 2024, the SDA communicated that the JCC meeting occurred on 18 July 2024. The parties reached agreement that Woolworths will be making back payment by the end of August 2024 in respect of two lots of payments, the first being the period February 2017 – February 2023, and the second being the period February 2023 – November 2023. The SDA requested the Commission make a recommendation, particularly in relation to the back payment of February 2023 – November 2023 being paid to members by no later than 31 August 2024.
On 31 July 2024, Woolworths communicated that a recommendation from the Commission would be unlikely to assist the parties, and there is currently no reason for Woolworths to believe that it will not be able to meet the current timetable. It expressed that if that changed, the matter could be listed for a further conference, if required.
Decision to issue Recommendation
I have decided to issue this Recommendation on account of the continued delay to SDA members pursuant to this dispute and affected employees more generally.
Prior to the dispute being notified, Woolworths had indicated the rectification would occur by approximately April – June 2024. That was then pushed out until 12 August 2024, and it is now anticipated that it will be completed for this group of workers by no later than 31 August 2024.
Whilst the remediation project is, no doubt, a large one, employees ought not be left waiting any longer for money that is owed to them. If Woolworths needs to prioritise the payment to affected members employed at the BRDC on account of this dispute being before the Commission, it ought to do so.
I recommend that Woolworths do all that is necessary to ensure the payment to affected members at the BRDC in respect of both periods (February 2017 – February 2023 and February 2023 – November 2023) is made by no later than 31 August 2024.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR777809>
0
0
0