Shop, Distributive and Allied Employees Association v Woolworths Group Limited

[2020] FWC 5990

[2020] FWC 5990

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Shop, Distributive and Allied Employees Association
v
Woolworths Group Limited
(C2020/6259)

COMMISSIONER MCKINNON MELBOURNE, 4 DECEMBER 2020

Consultation obligations under enterprise agreement – whether major change likely to have significant effects on employees – consultation about new technology

[1] Woolworths Group Limited has recently upgraded its forklift technology across Australia. At the Adelaide Regional Distribution Centre, this involves phasing out Woolworths’ own ‘Crown’ forklift fleet and replacing it with a new fleet owned and maintained by Toyota Material Handling under a supply contract. One consequence of the upgrade is that employees of Woolworths will no longer be responsible for forklift ‘battery change functions’ which will now be the responsibility of Toyota. Actual performance of those functions in the Adelaide Centre will be the responsibility of United Commercial Contractors, a third party provider contracted separately to Toyota.

[2] Employees at the Adelaide Centre are unhappy about losing the battery change function to a contractor as well as what they feel was a lack of meaningful consultation about the change before it was introduced. They submit that Woolworths has not met its obligations under the Woolworths Limited Adelaide Regional Distribution Centre Enterprise Agreement 2018 in relation to the change.

[3] Woolworths says it has undertaken extensive consultation about the change and has done what it can to achieve agreement with employees. In the meantime, employees remain rostered on battery change functions with little work left for them to do.

[4] The questions for determination are these:

1. Was the outsourcing of the ‘battery change function’ a breach of clause 1.4 of the Agreement?

2. Has Woolworths complied with its obligations to consult with employees and the Union pursuant to clause 5.5 of the Agreement?

3. Has Woolworths complied with its obligations to undertake appropriate consultation in order to reach agreement on the implementation of any new system into the distribution centre pursuant to clause 5.6 of the Agreement? In particular, what does the phrase “in order to reach agreement” mean in the context of clause 5.6?

4. In light of the answers to questions 1-3 above, should Woolworths be permitted to implement the new system including outsourcing the battery change function?

[5] The Agreement covers each of the parties to this dispute. It contains a Dispute Resolution procedure at clause 6.1 empowering the Commission to deal with disputes over matters arising under the Agreement. Each of the questions for determination in this case are matters arising under the Agreement.

[6] Clause 6.1 provides a series of steps for the resolution of the dispute. The first step is for an employee to raise the dispute with their direct manager if appropriate, and if the dispute remains unresolved, with the Operations Manager. The Operations Manager may, if requested, refer the matter for consideration to the Centre Operations Manager or Centre Manager. If the employee is represented by the Union, the delegate may advise a Union official at this time and discussions will then be held between the company’s nominated representative and the appropriate Union official. If the matter remains unresolved, it may then be referred to the Commission for conciliation and, if necessary, arbitration. Employees can be represented at any stage of the dispute.

[7] The process in this case has broadly followed the dispute resolution procedure. Employees raised concerns directly with their line managers about who was best placed to perform the battery change function and about safety and training matters. Responses from their respective managers to the effect that it was a national decision, that contractors would be trained Toyota specialists and that re-training would be on an as needs basis, did not resolve employee concerns. Employees then raised the matter with the Union on 26 May 2020 and on their behalf, Mr Bailey wrote to Mr Edwards about it and sought further information. On 25 June 2020, Woolworths provided information about the change to Mr Bailey and a series of meetings were held between 24 June and 2 July 2020 to discuss the change and answer questions. Further correspondence ensued between the parties in an effort to reach agreement and resolve the dispute. Ultimately, the parties did not reach agreement so that arbitration is now required.

Was the outsourcing of the ‘battery change function’ a breach of clause 1.4 of the Agreement?

[8] Clause 1.4 of the Agreement is headed “Aim of Company and Union”. It provides as follows:

“It is the aim of the parties to this Agreement to maximise full-time job opportunities and productivity at the Distribution Centre.”

[9] As can be seen, the clause is aspirational in nature. It sets the tone for the Agreement by describing one of its purposes. The clause has work to do because it is relevant to the interpretation of other provisions of the Agreement, and the Agreement as a whole. However, on its own it contains no enforceable or binding obligation on any person. Conduct of a party that sits in tension with the parties’ stated aims will not contravene clause 1.4, but may give rise separately to contravention of other terms of the Agreement when the obligations they contain are read in context and having regard to their industrial purpose.

[10] For this reason, the answer to the first question for determination is “No”.

Has Woolworths complied with its consultation obligations under clause 5.5?

[11] Clause 5.5 of the Agreement provides as follows:

“5.5. Introduction of change

5.5.1. Notification of Intended Change

a. Where the Company has made a definite decision to implement changes in production, programme, organisation, structure or technology that are likely to have significant effects on employees, the Company will as soon as practicable notify the employees who may be affected by the proposed changes and the Union.

b. Significant Effects include termination of employment; major changes in the composition, operation or size of the Company's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

c. Where this Agreement makes provision for alteration of any of the matters referred to within, an alteration will be deemed not to have significant effect.

5.5.2. Consultation with Employees and their Union

a. The Company will discuss with the employees affected and their Union among other things, the introduction of the changes referred to in subclause 5.5.1a, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and will give prompt consideration to matters raised by the employees and/or their Union in relation to the changes.

b. The discussions will commence as early as practicable after a definite decision has been made by the Company to make the changes referred to in subclause 5.5.1a.

c. For the purposes of such discussion, the Company will provide in writing to the employees concerned and their Union, all relevant information about the changes including:

The nature of the changes proposed;

The expected effects of the changes on employees, and

Any other matters likely to affect employees, provided that the Company will not be required to disclose confidential information disclosure of which, when looked at objectively, would be detrimental to its interests.”

[12] The clause requires Woolworths to notify relevant employees about certain changes “as soon as practicable” after making a definition decision to implement the change. Relevantly, it applies to changes in technology that are likely to have significant effects on employees.

Is the change likely to have significant effects on employees?

[13] The change in dispute in this case is the outsourcing of battery change functions in connection with the introduction of new forklifts to the Adelaide Centre. The parties disagree about whether this change can be characterised as one that is likely to have “significant effects on employees.” For the reasons that follow, I find that it can.

[14] The change will not involve any termination of employment. Woolworths has given a commitment to employees and the Union that there will be “no job losses as a result of the change, nor any reduction in headcount”. For the same reason, the change will not involve any major change in the composition, operation or size of the Company's workforce. It is not necessary to decide whether “the Company’s workforce” is limited to directly employees of Woolworths, because at the Adelaide Centre there are approximately 500 employees and at least a further 160 contractors. Increasing the number of contractors by one cannot fairly be characterised as a major change in composition, operation or size, either of the Company’s direct workforce or one that is more broadly cast to include contractors on site.

[15] The change is likely to affect the skills required of employees who will no longer be required to perform the battery change function, but not in a way that constitutes a major change. Affected employees are employed as storepersons. It is an ordinary feature of their employment that they are regularly required to hold a range of skills and perform a range of functions. Many employees are trained in multiple separate skills and competencies. Employees rotate across a different work functions according to their training and competency. Removing the battery change function from the rotation will not mean that employees have less work to do, but rather that they will have one less type of work to do. Instead of battery change functions, affected employees will use skills to perform other functions. It is no different to employees being reallocated from work driving a forklift to work as a ‘checker’ or ‘cleaner/canteen amenities’. One employee, Pat Gagliardi, has been permanently rostered on the battery change function. Except in the case of Mr Gagliardi, the role of affected employees remains largely unaffected as they will still perform a range of different work under the Agreement on a rotational basis.

[16] The change is not likely to result in the elimination or diminution of job opportunities, promotion opportunities or job tenure because as noted above, there will be no loss of jobs or reduction in the overall headcount flowing from cessation of battery change functions. While the Union submits that outsourcing this function must eventually result in job losses, such an outcome is by no means inevitable. It is just as likely that time previously spent on battery change functions can readily be absorbed into other functions to relieve workload pressure or in connection with an overall increase in activity at the Adelaide Centre. This scenario is consistent with Woolworths’s proposal to rotate employees across other work in a way that avoids any reduction in hours or employees.

[17] The change will not result in an alteration of hours of work.

[18] One effect of recent consultation over the change is that it is likely to result in the retraining of employees. However, I am not satisfied that retraining will occur because of any established need. It is instead the result of a request for additional training from among affected employees to which Woolworths has agreed.

[19] The change will necessarily result in the transfer of employees to work other than the battery change function, because that function will no longer be available for employees to perform. The transfer to other work primarily affects one employee, Mr Gagliardi, who as noted above until recently performed the battery change function on a full-time basis. If he were the only one affected, the transfer to other work would not constitute a change that was likely to have “significant effects on employees” because it would affect only one employee. However, there are a further six employees who rotate through the battery bay one week in every six. Once the change is implemented, these employees will be moved to other work in the weeks they would ordinarily perform battery change functions. A further approximately 17 employees have performed the function from time to time (for example while other employees were on breaks or leave).

[20] As the transition away from battery change functions is likely to result in the transfer of employees to other work, it meets the description of change that is likely to have “significant effects on employees”. Clause 5.5 applies to the implementation of changes to the battery change function.

Did Woolworths notify relevant employees about the implementation of change as soon as practicable?

[21] Roll out of the project to upgrade forklifts across Woolworths commenced in late 2019, but the best evidence about when Woolworths made a definite decision to handover battery change functions at the Adelaide Centre to Toyota is from Matthew Edwards, State Manager Supply Chain. Mr Edwards gave evidence that in discussions in “May 2020”, he was told or informed that the battery change role would become Toyota’s responsibility. This followed advice approximately one year earlier that Toyota had successfully tendered for the forklift contract. Employees were told about the tender of the contract to Toyota in toolbox meetings on or about 10 May 2019. There is no evidence that a decision had been made to transfer the battery change function from Woolworths to Toyota at that point in time.

[22] Mr Edwards was unable to point to a specific date in May 2020 when he became aware that the battery change function would transfer to Toyota. I infer that the decision in this regard was made in the second half of May 2020, because on 26 May 2020, Lou Bailey from the Union met with employees at the Adelaide Centre who told him about a rumour that “duties that EA employees are currently doing” would be “outsourced to third parties”, including the “battery changing role”.

[23] At some point in June 2020, Mr Edwards spoke with Nick Arganese, Senior Culture and People Partner SA, about the need to start conversations with employees about battery room changes that were “due to start occurring in July 2020”. The first formal advice to employees that this change was to occur was on or about 24 June 2020 in a meeting between Mr Arganese, David Luxton, Facilities and Maintenance Manager, and Mr Gagliardi. On 25 June 2020, Woolworths notified the Union of the change by email. The remaining affected employees were notified of the change over the period from 25 June 2020 to 2 July 2020 in a series of team meetings.

[24] The above chronology establishes that Woolworths did not notify relevant employees that the change was to be implemented ‘as soon as practicable’ after the decision had been made. Allowing for a short period of time for Woolworths to work through any immediate logistical challenges or administrative arrangements at the Adelaide Centre, it would have been feasible to notify employees of the decision by early June 2020 at the latest. I find that notification was given approximately three weeks later than the Agreement required.

[25] The answer to the second question is “No”.

Has Woolworths complied with its consultation obligations under clause 5.6?

[26] Clause 5.6 of the Agreement provides as follows:

“5.6. Consultation on new technology

5.6.1. The Company, its employees and the Union agree to undertake appropriate consultation in order to reach agreement on the implementation of any new system into the Distribution Centre which may involve the need to change current work methods or to use new equipment. Should any problems arise in this regard the matter shall be dealt with in accordance with the Dispute Resolution Procedure.”

[27] Clause 5.6 applies in this case because it involves the implementation of a new system for changing forklift batteries into the Distribution Centre. The new system involves the use of new equipment, including a battery bull and new forklifts. It also involves a change to current work methods, in that the battery change function will cease to be performed by employees. What is required under clause 5.6 is consultation on the implementation of the new system. It does not extend to consultation about whether the new system should be implemented at all.

[28] The Union submits that Woolworths has not consulted in accordance with clause 5.6 because the parties have not reached agreement on implementation of the new system. It contends for an interpretation of the words “in order to reach agreement” in clause 5.6 that requires the parties to reach agreement before any new system is implemented. Woolworths disagrees and submits that while the parties have agreed that consultation will occur with the objective of reaching agreement, clause 5.6 does not require agreement to have been reached before any change can proceed.

The meaning of “in order to reach agreement”

[29] The starting point is to consider the ordinary meaning of the words used in the Agreement, having regard to their industrial context and evident purpose. The search is for the objective common intention of the makers of the enterprise agreement who likely had a ‘practical bent of mind’ rather than being focused on legal niceties and jargon. The focus of the inquiry is on the language used to give effect to their agreement. Only where there is ambiguity, evidence tending to establish relevant objective background facts known to both parties may be admitted to aid interpretation. 1

[30] Clause 5.6 is found in Part 5 of the Agreement, which deals with terms and conditions of employment. It appears between provisions dealing with the introduction of change (clause 5.5) and redundancy (clause 5.7), for which consultation is also required. It is a separate commitment to consultation in the specific circumstances where new technology is to be introduced into the Adelaide Centre. Other clauses that colour the meaning or operation of clause 5.6 include clause 1.4 (Aim of Company and Union – discussed above), clause 1.5 (No extra claims), clause 6.1 (Dispute Resolution), clause 6.4 (Work practices) and clause 8.1 (Consultative committee). It is not necessary to look further than the text of the Agreement to find the meaning of clause 5.6, because there is no ambiguity in its terms.

[31] The words “in order to” are used to express the purpose of something. In the Macquarie Dictionary, the phrase is alternatively defined by “as a means to”. In clause 5.6, the phrase appears in the context of a commitment by the parties to “undertake appropriate consultation in order to reach agreement”. In other words, the purpose of consultation is to reach agreement. The parties have agreed that both their approach to consultation and the consultation process itself will be directed toward that goal.

[32] Clause 5.6 also recognises that appropriate consultation processes will not always achieve their purpose. The outcome ultimately depends on each party’s willingness to either accept a proposal put by the other or to find compromise in favour of a result that is acceptable to all. To that end, the second sentence of clause 5.6 provides for “any problems” that arise in relation to the consultation process to be dealt with under, and in accordance with, the Agreement’s dispute resolution procedure in clause 6.1.

[33] Clause 5.6 does not mandate the reaching of agreement because at least two other possible outcomes may follow consultation. A party might walk away from the process before agreement is reached, for example by abandoning an aspect of the proposed implementation that is in dispute, or choosing not to pursue a dispute despite their objection either to the change or one of its features. The second, once clause 6.1 is triggered, is for the dispute to be resolved by arbitration once other mechanisms in the Commission have failed to resolve the dispute, as is the case here.

[34] Investment in new technology in the context of a large scale distribution centre is likely to involve both significant cost and risk. In my view, if the parties had intended that employees should have an effective veto over its implementation, this would have been plainly expressed. It would see clause 5.6 deal directly requirement for agreement rather than relying on a process which has agreement as its purpose. The language of clause 5.6 reflects the parties’ respective commitments to genuinely try to reach agreement by engaging in a proper consultation process. Understanding the clause in this way avoids any need to depart from the text of clause 5.6 as chosen by the parties to give effect to their agreement.

[35] I also find no temporal barrier between consultation over, and implementation of, change in clause 5.6. While in many cases it will be appropriate for consultation to be finalised before implementation of the new system begins, there will be cases where that is not appropriate – for example where consultation is necessary both before and during the implementation phase to permit early identification and resolution of operational or safety issues as they arise. That is not to say that the implementation of new systems can proceed without limitation. Where a dispute arises and clause 6.1 is triggered, clause 6.1.9 provides that “the status quo will remain until the issue is resolved”.

Has Woolworths complied with clause 5.6?

[36] Whether Woolworths has complied with clause 5.6 depends largely on whether it has approached its role in consultation over implementation of the battery change function genuinely and with the goal of reaching agreement with employees and the Union.

[37] The process did not begin well. After initially agreeing to discuss the matter, Mr Bailey wrote Mr Edwards on 9 June 2020 proposing a meeting two days later to discuss “the rumours circulating regarding the outsourcing of duties”. Mr Edwards responded by advising Mr Bailey that he had “no information” about the proposed change. This is despite Mr Edwards having known about the handover of battery change functions since May 2020. His response to Mr Bailey was misleading, but I accept Mr Edwards’ evidence that he misunderstood what was being sought and did not deliberately seek to mislead Mr Bailey.

[38] In my view, the wrong advice had no material impact on the process that followed. On 11 June 2020, the Union formally requested consultation under clause 5.5 and the parties met on 23 June 2020, at or around the same time that Woolworths began to consult with employees. Woolworths then wrote to the Union on 25 June 2020 confirming that the battery change function would now fall under Toyota and that maintenance and servicing would be performed by “qualified personnel who will be managed by Toyota”. A copy of the presentation pack communicated to employees was also provided, dealing with the proposed changes and implementation timeframe (1 July 2020 to mid-August 2020), confirmation that no hours or jobs would be lost and that employees currently performing the function would continue rotating through other tasks on site. As noted above, meetings with employees about the change were then held between 25 June 2020 and 2 July 2020.

[39] On 8 July 2020, the Union wrote to Woolworths posing five “concerns and questions” and seeking two guarantees: that there be no loss of hours for affected employees and that there be opportunities for upskilling. Woolworths responded on 16 July 2020 to each of the five concerns and questions and providing the two guarantees sought (the first in full, and the second on a more limited, ‘as needs basis’).

[40] At some point after 16 July 2020, the focus of employees shifted from seeking to mitigate the effects of implementation to trying to prevent it altogether. On 28 July 2020, the changes were discussed at a consultative committee meeting. Employees asked why Woolworths employees could not continue to perform the battery change function. They were advised that under the national approach, this would be Toyota’s responsibility and that qualified persons would perform the role on site.

[41] On 4 August 2020, lawyers for the Union wrote to Woolworths asserting a failure to comply with clause 5.5 of the Agreement by presenting the changes to employees as a ‘fait accompli’ and failing to consult as soon as practicable after the decision had been made. They described the nature of the dispute as whether “it is necessary for the battery change function to be transferred from Woolworths employees to labour hire employees”. A request was made to review the decision to outsource the battery change function.

[42] The letter also asserted failure to comply with clause 5.6 of the Agreement by providing misleading information about the nature of the change. Specifically, the Union asserted it had been misled by Woolworths by its:

1. characterization of the battery change function as ‘servicing’ of the equipment; and

2. asserting that qualified personnel would perform the battery change function, when in practice it was unqualified labour hire employees who would likely be paid less than Woolworths employees.

[43] On 10 August 2020, Woolworths responded by providing more information about the roll out of the equipment upgrade across its facilities. It disagreed that clause 5.5 applied on the basis that the introduction of a fully maintained operating lease is not “major change” and asserting its right to enter into commercial arrangements with third parties. It did not respond directly to the issues raised in relation to clause 5.6.

[44] On 13 August 2020, the Union responded by filing this dispute in the Commission.

[45] A conciliation conference on 10 September 2020 resulted in the parties agreeing to consult further on the implementation of the new battery room system by exchanging additional materials and meeting again on 18 September 2020. The parties also agreed to a form of ‘status quo’ arrangement whereby employees would remain on the battery room roster, changing Crown forklift batteries and not being required to train Toyota employees. Following the conciliation, the Union wrote to Woolworths confirming the agreement reached. Woolworths responded the following day with three points of clarification.

[46] On 15 September 2020, the Union’s lawyers wrote to Woolworths as earlier agreed, raising a number of issues about the “central question” of whether Woolworths employees could continue to perform the battery changing duties in relation to Toyota forklifts. Further information was sought about Woolworths’s reasons for resisting this approach (warranty concerns, commercial terms agreed with Toyota, and safety). The Union identified further concerns about productivity loss arising from outsourcing the function and proposed that Toyota contract the labour component of the battery change function back to Woolworths employees. It also sought further information if this proposal was not accepted.

[47] On 18 September 2020 the parties met as agreed. Minutes of the meeting record a range of issues being discussed about the battery change functions, including a request for employees to be seconded to Toyota, safety and training issues and the division of labour between Woolworths and Toyota. Woolworths proposed a monthly meeting to review and source feedback from employees.

[48] On 24 September 2020, Woolworths wrote to the Union’s lawyers responding in detail to the issues raised on 15 September 2020 and to employee feedback received in the meantime. It set out the measures being taken to deal with concerns about the induction of contractors to site, selection criteria and monitoring for those individuals, standard operating procedures, driver safety zones, scheduling, delays and turnover as well as monitoring of the new system and safety reporting procedures. Woolworths again declined the proposal that it seek to become the provider of battery change functions to Toyota and responded to the further information sought on 15 September 2020. Finally, it acknowledged concerns about consultation and committed to improving consultation processes. Feedback was sought prior to a final decision being made on changes to rosters for team members on battery change duties.

[49] On 28 September 2020, Woolworths wrote to the Union’s lawyers about its proposed approach to future consultation and a review of training needs for affected team members. It facilitated a meeting at short notice the following day between the Union and affected employees.

[50] In a letter dated 29 September 2020 but sent on 30 September 2020, the Union’s lawyers wrote to Woolworths reiterating its request that Woolworths engage with Toyota about becoming the provider of battery change functions under its contract to Woolworths and asserting that refusal to enter into such dialogue with Toyota was in breach of clause 5.6. The letter also raised matters of occupational health and safety, warranty/ownership of equipment and the proposed review of affected employees who maybe provided with training for additional skills.

[51] On 2 October 2020, Woolworths wrote to the Union setting out its proposed new approach to consultation under clause 5.5 and 5.6 of the Agreement. It separately wrote in detail to the Union’s lawyers responding to their concerns and expressing disappointment at the continued assertion that Woolworths was not taking the Agreement’s consultation clause seriously. Woolworths advised that it had decided to continue the rollout of new equipment and to move employees off the battery change roster from 8 October 2020, subject to any outcome in the Commission.

[52] On 16 October 2020, Woolworths wrote to employees with further detail about its plans to implement changes in relation to the battery change function and providing a further opportunity for discussion and feedback within 7 days. The letter included a table of consultation issues and responses. There was then a further meeting with affected employees on 22 October 2020.

[53] The history above sets out what can fairly be described as a comprehensive consultation process between Woolworths, employees and the Union about implementation of new arrangements for the battery change function since June 2020. Two things may be said about the process. Firstly, the degree to which Woolworths has engaged in meaningful consultation has increased over time. In the early stages of consultation, its approach was focused on the provision of information rather than seeking agreement, presumably because it did not anticipate much resistance to changes that it saw as consequential to the beneficial upgrade of equipment, resulting in no loss of working hours or positions. It could and should have recognized the importance of consultation from the outset, as its later communications and in particular, its revised approach to future consultation, appear to acknowledge.

[54] Secondly, while the parties have not yet reached agreement, there is a real question about whether the issue that remains in dispute is about implementation of the change or the change itself.

[55] It is useful at this juncture to recall what was sought by employees through the consultation process and how Woolworths responded. The developments are summarized in the table below.

Date	Employee request	Date	Woolworths response
8 July	Guarantee that there be no reduction in hours for affected employees	16 July	Agreed
8 July	Guarantee that there be opportunities for upskilling for any affected employee	16 July	Opportunities will be provided via expression of interest when required by business
28 July	Woolworths employees to perform the battery change function	28 July	Toyota’s responsibility. Qualified persons will perform the role on site for Toyota
4 Aug	Review the decision to outsource the battery change function	10 Aug	Battery management will be the responsibility of Toyota and their service and maintenance partners
15 Sept & 18 Sept	Toyota pay Woolworths to provide labour for the battery change function	18 Sept & 24 Sept	No but will follow up (18 Sept). Not viable (24 Sept): Woolworths does not need employees to perform the function as it is Toyota’s responsibility. Toyota decides who provides the service.
15 Sept & 18 Sept	Provision of information about division of labour, level of training for labour hire employees, safety issues, monitoring, scheduling and qualifications	24 Sept	Various responses to each of the issues and concerns raised. Commitments made about further steps to ensure safety and quality of service. Commitment to continuous review and to improve future consultation processes.
28 Sept	Employees be given paid time for union meeting on site	28 Sept	Agreed
30 Sept	Allow union representatives to meet with employees to discuss changes	2 Oct	Cl 5.6 does not require facilitation of consultation between union and its members
30 Sept	Reiterate request for engagement with Toyota about subcontracting Woolworths employees to perform battery change function	2 Oct	Roll out will continue; employees to be moved off battery change roster
30 Sept	Adequate oversight and assessment of contractor safety	2 Oct	Measures in place for sanitization of equipment; no OHS concerns reported; any suggestions will be considered promptly
30 Sept	Information about ownership of battery bull and fast charging equipment	2 Oct	Information provided
29 Sept	Provide results of review of which team members will be provided training for additional skills	2 Oct	Information provided: 9 employees to receive additional training

[56] As can be seen, and separate to the various legal arguments and justifications for each parties’ respective positions, as issues have been raised they have for the most part been promptly considered and resolved. Other than the request about employees being subcontracted to Toyota, each matter has been the subject of prompt consideration and response by Woolworths since June 2020. At the time this dispute was notified, two issues remained unresolved between the parties: the extent to which additional training would be provided to employees and the request that employees be subcontracted to Toyota to perform the battery change function. On the first of these matters, Woolworths initially indicated that training would be provided on an ‘as needs basis’. Following consultation, it has agreed to provide additional training for nine of the affected employees. This supports a conclusion that Woolworths has participated in consultation with the goal of reaching agreement.

[57] On the remaining matter, the purpose of consultation under clause 5.6 is to ensure that employees have a voice in how the new system is introduced and to ensure that their interests are appropriately considered. In my view, the request that employees continue to perform the battery change function as subcontractors to Toyota is one that Woolworths is entitled to resist, because it is not one directed at seeking to reach agreement “on” the implementation of the new battery change system but rather to prevent that implementation by having employees continue to perform the function, albeit through a circuitous route.

[58] The decision to outsource the battery change function as part of a lease for the provision of new equipment is a matter within the managerial prerogative of Woolworths, subject to its obligations in relation to consultation with employees and the Union. Responsibility for the function has been contracted to Toyota and it is now for Toyota to determine the method for provision of that service, including which contractors it will engage if that is its chosen delivery model.

[59] Woolworths has, to date, met its consultation obligations under clause 5.6 of the Agreement. The answer to the third question is Yes, because the phrase “in order to reach agreement” requires the parties to engage in meaningful consultation with the goal of reaching agreement but does not require that agreement must be reached before any new system can be implemented in the Adelaide Centre.

Should Woolworths be permitted to implement the new system including outsourcing the battery change function?

[60] Despite an approximate three week delay in notifying employees about the handover of battery change functions to Toyota, the process undertaken since that time has been appropriate in the sense that it has afforded the parties a proper opportunity for meaningful consultation about the change and its likely effect on employees and the workplace generally. Information has been shared, input has been provided and considered, and concessions made. In the meantime, the status quo has been preserved in the sense that employees remain rostered to battery change functions.

[61] I see no reason why Woolworths should not now be permitted to implement the new system, including by ceasing to roster employees on battery change functions in connection with Toyota forklifts. The answer to the fourth question is ‘Yes’.

[62] Finally, there is no basis in the Agreement for considering that approval of the Occupational Health & Safety Committee is required before the new system is implemented. The orders sought by the Union in this regard are refused. That is not to say that the matter should not be the subject of consideration by the Committee at the appropriate time, consistent with the parties’ separate obligations under occupational health and safety legislation. That is a matter for the parties to explore in accordance with established workplace safety protocols.

Disposition

[63] For the reasons above, the various orders sought by the Union are refused.

[64] The dispute is determined accordingly.

COMMISSIONER

Appearances:

D Blairs for the Shop, Distributive and Allied Employees Association

O Fagir for Woolworths Group Ltd.

Hearing details:

2020.
Melbourne (video hearing):
November 13.

Printed by authority of the Commonwealth Government Printer

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 1   Workpac Pty Ltd v Skene [2018] FCAFC 131 at [197]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005.