Siobhan Bonham v Woolworths Ltd T/A Woolworths

[2016] FWC 5765

[2016] FWC 5765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Siobhan Bonham
v
Woolworths Ltd T/A Woolworths
(C2016/98)

COMMISSIONER GREGORY MELBOURNE, 30 AUGUST 2016

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

Introduction

[1] Ms Siobhan Bonham has worked with Woolworths Ltd (“Woolworths”) since first employed on a casual basis in September 2005. Since that time she has worked in a variety of roles, and her hours of work have also varied from time to time over the period of her employment. In January this year she made application under s.739 of the Fair Work Act 2009 (Cth) seeking to have the Commission deal with a dispute in accordance with the Grievance Procedure contained in the Agreement that covers the parties. That Agreement, which was approved on 25 October 2012, is the Woolworths National Supermarket Agreement 2012 (“the Agreement”).

[2] The application was dealt with in conference on 22 February 2016 and various “next steps” were agreed upon in response to the matters raised by Ms Bonham. The matter was again dealt with in a telephone conference on 5 May 2016 at the request of Woolworths as Ms Bonham had refused to meet to discuss the outcome of an investigation into the matters raised. The parties then agreed at the conclusion of that conference to participate in further direct discussions in an endeavour to resolve the matter.

[3] However, Ms Bonham contacted the Commission again on 17 May 2016 requesting to have the application set down for arbitration. Woolworths responded on the following day indicating it objected to that request on the basis that Ms Bonham had not followed the processes in the Grievance Procedure contained in the Agreement. It subsequently advised that if the Commission proceeded to arbitrate the matter it would raise a jurisdictional objection in response. The Commission accordingly advised both parties that the matter would now be relisted to deal with the jurisdictional objection raised by Woolworths, and directions were then issued to the parties for filing and service of evidence and submissions.

[4] This decision deals with the jurisdictional objection raised by Woolworths. Ms Bonham appeared on her own behalf. Mr Luke Connolly from Luke Connolly Workplace Law & Consulting was given permission to appear under s.596(2)(a) as the matter involves a degree of complexity and his involvement might enable it to be dealt with more effectively. The Commission also indicated that granting of permission on this occasion extended only to the proceedings involving the jurisdictional objection raised by Woolworths, and a fresh application would be required to be made in any further proceedings that might follow.

The Issue to be Determined

[5] Section 595 of the Act deals with the powers the Commission may exercise in dealing with disputes. Section 595(1) provides that it may only deal with a dispute if it is expressly authorised to do so. Section 595(2) continues to provide that it may deal with the dispute by mediation, conciliation, making a recommendation or expressing an opinion, but subject to the qualification that it may not deal with the dispute by arbitration. However, s.595(3) permits the Commission to arbitrate but “…. only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.”

[6] Sections 738 and 739 are also relevant in the context of the present matter. Section 738 relevantly provides that the Division has application if “an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6)”.

[7] Section 739(1) continues to state that it applies if a term referred to in s.738 requires or allows the FWC to deal with a dispute. Section 739 relevantly continues to indicate:

“(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute...

… (3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[8] The Grievance Procedure in the Agreement is set out in clause 9. It states as follows:

“9.1 A grievance between an Employee and the Employer including a grievance in relation to the National Employment Standards (NES) except a dispute about whether the Employee has reasonable business grounds under subsection 65(5) of the FW Act once in operation should be discussed in the first instance between the employee and the employee’s line manager.

9.2 If the matter is still not resolved the employee may then raise the matter with the relevant Senior Operations Manager and Human Resource Manager. At this stage the employee has the option of enlisting the support of a representative who may be a union representative.

9.3 If the matter is not resolved the employee and/or their representative may then refer the matter to the relevant General Manager and Divisional Human Resource Manager.

9.4 If the matter has still not been resolved either party may refer it to Fair Work Australia (FWA) for conciliation.

9.5 If the matter is still not resolved the employee may raise the matter with the relevant General Manager and Director of Human Resources. In instances where the employee elects to be represented by the union, the National Secretary of the union shall represent the employee in discussions with the employer’s relevant General Manager and Director of Human Resources.

9.6 If after sub clause 9.5, there is still no resolution and the employer’s Director of Human Resources and the employee agree or, in instances where the employee elects to be represented by the union, the employer’s Director of Human Resources and the National Secretary of the union agree, the matter may proceeded to arbitration by FWA.

9.7 If arbitration is necessary FWA may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions in line with the Act which are necessary to make the arbitration effective.

9.8 The decision of FWA will bind the parties, subject to either party exercising a right of appeal against the decision.

9.9 It is a term of this agreement that while the grievance resolution procedure is being conducted work shall continue as normal before the dispute arose unless an employee has a reasonable concern about an imminent risk to their health and safety. “

[9] As indicated previously the application has already been dealt with by the Commission by way of conciliation, in accordance with sub clause 9.4. Ms Bonham now wants to have the application dealt with by way of arbitration. However, Woolworths objects to this request on two grounds. Firstly, it submits the process set out in sub clause 9.5 has not yet been followed. Secondly, a matter can, in any case, only proceed to arbitration under the Grievance Procedure in circumstances where agreement exists in accordance with sub clause 9.6. Woolworths submits that no such agreement exists on its part at this point in time.

[10] Therefore, does the Commission now have the ability to deal with the application by way of arbitration?

The Submissions and Evidence

[11] Woolworths submits that the present application cannot proceed to arbitration for two reasons. Firstly, the Grievance Procedure in the Agreement which covers the parties contains a step-by-step internal escalation process which must be followed before the dispute can be referred to the Commission to be dealt with by way of arbitration. Secondly, and more importantly, the Grievance Procedure only provides for arbitration in circumstances where the parties agree to have the dispute dealt with in that way. It submits, in response, that there is no such agreement on the part of Woolworths at this time.

[12] Its submissions continue to provide a brief summary of what has occurred since the dispute notifications were first filed by Ms Bonham earlier this year. It notes that the matter was originally dealt with in conference at the Commission on 22 February 2016, and Woolworths agreed to carry out an investigation into the issues she had raised. It submits that at the conclusion of that investigation it contacted Ms Bonham on 8 April 2016 to arrange a meeting to discuss the outcome, but she refused to attend. The findings of the investigation were therefore communicated to her in writing.

[13] Woolworths submits that given Ms Bonham’s refusal to meet it then sought to involve the Commission again in dealing with the dispute and, as a consequence, a further telephone conference took place on 5 May 2016. It then proceeded to meet with her and to do a number of other things as a consequence of what was agreed in the conference. However, on 17 May 2016 Ms Bonham requested that the Commission now deal with the matter by way of arbitration, at which point Woolworths raised the present jurisdictional objection.

[14] As indicated, it submits, firstly, that Ms Bonham “has not exhausted the internal escalation processes as set out in the Grievance Procedure.” It refers, in particular, to sub clause 9.5 which provides that where the dispute is not resolved in conciliation before the Commission “the employee may raise the matter with the relevant General Manager and Director of Human Resources.”

[15] It continues to submit that sub clause 9.6 has also not been satisfied as it requires that the process set out in sub clause 9.5 has first been complied with before sub clause 9.6 can have any application. It continues to submit that, in any case, there is no agreement from the Director of Human Resources for the matter to be dealt with by way of arbitration by the Commission, and the Commission can only ever have the ability to arbitrate with the agreement of the parties, given the intent of sub clause 9.6.

[16] Ms Caryn Katsikogianis, who is the Director of Human Resources at Woolworths, also provided a witness statement and gave further oral evidence in support of the jurisdictional objection. Her evidence indicated she is the relevant employer representative for the purpose of clause 9.6 of the Agreement in her position of Director of Human Resources. Her evidence confirmed that in this role she does not agree that the matters raised by Ms Bonham should now proceed to be dealt with by the Commission by way of arbitration.

[17] Woolworths also made particular reference to the Full Bench decision in Woolworths Ltd trading as Produce and Recycling Distribution Centre 1(“Woolworths decision”) in support of its submissions. It refers, in particular, to an extract from paragraph [21] and submits the decision is authority for the proposition that despite the requirement for an Agreement approved by the Commission to contain a dispute resolution clause, any such clause can operate on the basis that it only allows arbitration in circumstances where there is agreement between the parties. Woolworths continues to submit that the Full Bench decision has subsequently been referred to, with approval, in a number of more recent decisions.

[18] The submissions provided by Ms Bonham also contain a detailed review of what has transpired since she first lodged this application with the Commission on 18 January 2016. They confirm she requested that the Commission deal with the matter by way of arbitration on 17 May 2016 as the issues raised had not been resolved despite various attempts to achieve a resolution over an extended period of time. She submits that she is now seeking to have the dispute “heard by an independent party,” and further that Woolworths had not previously indicated it objected to the matter ultimately being determined by way of arbitration.

[19] Ms Bonham also submits she was never provided with a copy of the current Agreement that covers the parties, prior to it being approved, and was not provided with an opportunity to vote in the ballot to approve the Agreement. She also submits she was not aware of the contents of the Grievance Procedure in the Agreement, prior to making this application, and has never seen the content of the Grievance Procedure displayed in the store in which she works.

[20] She also submits that copies of the Grievance Procedure have not been provided to her, despite making numerous requests to management. She also submits Woolworths has not followed the appropriate steps in the Grievance Procedure in dealing with the dispute.

[21] She also submits she has not been able to ascertain who are the particular individuals she is required to make contact with when the Grievance Procedure refers to the “relevant General Manager and Director of Human Resources,” and this information is not readily available within the organisation.

[22] Ms Bonham’s submissions also make reference to the “Objects of the Fair Work Act” contained in s.3, and the provisions in s.180 dealing with the requirement for employees to be given a copy of the proposed Agreement as part of the pre-approval requirements. She also makes reference to previous decisions of the Commission in support of the view that she is entitled to have her case dealt with by an independent body.

Consideration

[23] Ms Bonham is clearly frustrated by the fact that long standing issues of concern to her have not been resolved, despite extensive processes having been gone through in an endeavour to achieve a resolution. She believes she is now entitled in these circumstances to have her concerns dealt with by arbitration by what she describes as an “independent third party.”

[24] Her sense of frustration is heightened by Woolworth’s refusal to agree to have the matter arbitrated, and its insistence that it can only proceed to arbitration where both parties agree to this course of action. Woolworths submits, in response, that it is only acting in accordance with the terms of the Grievance Procedure in the Agreement, which provides that arbitration can only occur in circumstances where both parties agree. It continues to submit that regardless of this issue the previous step in the Grievance Procedure has not yet been complied with and, as a consequence, it is not appropriate to even consider having the matter arbitrated at this point.

[25] Ms Bonham continues to submit that, in any case, she should not now be bound by the Agreement because she has no recollection of being provided with access to a copy of it, prior to it being approved, and did not participate in the ballot approval process.

[26] I turn to deal with this submission at the outset. The current Agreement, being the Woolworths National Supermarket Agreement 2012, was approved by Senior Deputy President Boulton in a decision handed down on 25 October 2012 2. The decision notes that the Agreement is intended to cover 95,571 employees located at Woolworths various retail supermarkets throughout the country. It also notes that 95% of the employees, who voted in the ballot to approve the Agreement, voted in favour of it being approved. SDP Boulton concluded by stating he was satisfied all of the relevant statutory requirements had been met, and approved the Agreement, which commenced to operate from 1 November 2012. Given this situation the time period in which to bring an appeal against that decision has obviously long since passed.

[27] I have no reason to take issue with Ms Bonham’s submissions that she cannot now recall being provided with access to a copy of the current Agreement in the approval process that took place in the middle of 2012. However, this alone does not provide a basis to assert that the Agreement is not binding on her. As indicated above it has been approved by the Commission, and until such time as it is replaced by a new Agreement it operates to cover all of the employees employed by Woolworths in its retail supermarkets who are engaged in the various classifications contained in the Agreement.

[28] I now turn to deal with the terms contained in the Grievance Procedure, and to consider, firstly, in what circumstances the Commission might exercise powers of arbitration under that procedure. I have referred already to the submissions made on behalf of Woolworths about whether an Agreement is required to contain a dispute resolution or grievance procedure that confers an express power on the Commission to arbitrate. I am satisfied in this context that the Woolworths decision, referred to previously, is authority for the proposition that an Agreement can be approved without the requisite dispute resolution or grievance procedure conferring an express power on the Commission to arbitrate or, conversely, without requiring that ability to be a pre-requisite to approval of the Agreement.

[29] In this context I note the following extracts from the Woolworths decision:

“[21] Section 738 specifies the type of dispute resolution terms to which the division applies. Section 738(b) makes it clear that the division applies in relation to a dispute resolution procedure of the kind described in s.186(6). Section 739(1) provides that the section applies if a term in s.738 requires or allows Fair Work Australia to deal with a dispute. Section 739(2) is not relevant. Section 739(3) provides that a dispute resolution term can limit the powers available to Fair Work Australia to settle a dispute. Section 739(4) sets out the circumstances in which Fair Work Australia may arbitrate a dispute, providing that if the parties have agreed that Fair Work Australia may arbitrate, Fair Work Australia may do so. It appears to us that s.739(4) strongly implies the negative stipulation that if the parties have not agreed, Fair Work Australia has no power to arbitrate.”

[30] The Full Bench continued to consider the references to the dispute resolution terms in enterprise agreements referred to in the Explanatory Memorandum to the Fair Work Bill 2008. It continued to state at [23]:

… “Relevantly, however, the concluding sentence of the paragraph supports the implication in the words of s.739(4) that in the absence of agreement Fair Work Australia has no power to arbitrate. If the legislature has specifically provided for limits upon the use of arbitral power pursuant to dispute resolution procedures, it is difficult to see how the conclusion could be sustained that “arbitration is a prerequisite to the approval of an agreement.”

[31] It is also noted in this context that the terms of the Grievance Procedure considered in the Full Bench decision were similar to those in the Agreement that covers the parties in this matter. The evidence of Ms Katsikogianos also makes clear that in her position as Director of Human Resources at Woolworths she is, at this time, the individual that is required to agree, on behalf of Woolworths, before arbitration can occur under the terms of the Grievance Procedure. Her evidence also confirms she does not now agree to this in the context of the present matter. I am accordingly satisfied that the Commission does not have any power in these circumstances to arbitrate the dispute at this time.

[32] There is one further matter that needs to be considered in this context. Woolworths submits that, in any case, the matters raised by Ms Bonham have not proceeded through the various steps in the Grievance Procedure to the stage where arbitration is even a consideration. In its submission the grievance is still at the stage referred to in sub clause 9.5 which requires, “if the matter is still not resolved the employee may raise the matter with the relevant General Manager and Director of Human Resources.”

[33] Ms Bonham appears to acknowledge this in her submissions, and indicated that her concerns have not been progressed to this stage of the Grievance Procedure because she was unable to ascertain who the appropriate individuals are to raise the matter with. Given these circumstances, if Ms Bonham still seeks to escalate her grievance through the Grievance Procedure, she should do so in accordance with sub clause 9.5. To assist in facilitating this outcome I also suggest Woolworths now provide her with confirmation of both who are the relevant individuals in this context, and how to pursue her grievances with them in accordance with the Grievance Procedure.

COMMISSIONER

Appearances:

Ms Siobhan Bonham appeared on her own behalf.

Mr Luke Connolly of Luke Connolly Workplace Law & Consulting appeared on behalf of Woolworths Ltd T/A Woolworths.

Hearing details:

2016.

Melbourne.

16 August.

Final written submissions:

Applicant’s final written submissions received 11 July 2016

Respondent’s final written submissions received 20 June 2016

 1   [2010] FWAFB 1464.

 2   [2012] FWAA 9179.

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