Tristan Jarvis v Woolworths Group Limited
[2024] FWC 1921
•23 JULY 2024
| [2024] FWC 1921 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Tristan Jarvis
v
Woolworths Group Limited
(C2024/2663)
| COMMISSIONER HUNT | BRISBANE, 23 JULY 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – no standing of employee who made the application to advance interests of agency employees.
On 30 April 2024, Mr Tristan Jarvis made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with clause 3.2 of the Brisbane Liquor Distribution Centre Enterprise Agreement 2023 (the Agreement).
The Agreement covers all employees engaged by Woolworths Group Limited (the Respondent) at the Brisbane Liquor Distribution Centre (BLDC) at its Stapylton and Yatala locations and within the classifications contained in the Agreement.
Mr Jarvis is employed by the Respondent and is covered by the Agreement. He is a delegate of the Shop, Distributive and Allied Employees Association (SDA).
Dispute Resolution Procedure
Clause 3.2 of the Agreement provides for the Agreement’s Dispute Resolution Procedure as follows:
“3.2 Dispute resolution procedure
3.2.1 A dispute is a matter between a team member and the Company:
(a) Arising from this Agreement; or
(b) In relation to the NES.
3.2.2 All disputes are to be supplied in written format outlining the reason(s) for escalation. The Company will provide a response in writing at each stage of the dispute resolution procedure.
3.2.3 The parties are committed that all disputes will be raised and resolved in a timely manner. In the first instance, the matter should be discussed between the team member and the team member’s line manager within 14 days, or longer by mutual agreement, of the team member raising the matter.
3.2.4 If the matter is still not resolved within 14 days or longer by mutual agreement, the team member and/or the representative of the team member’s choice can then raise the matter with the relevant Shift Operations Manager or Team Experience Partner.
3.2.5 If the matter is still not resolved within 14 days or longer by mutual agreement, the team member and/or the representative of the team member’s choice can then refer the matter to the Supply Chain Manager or the People Lead - Primary Connect QLD.
3.2.6 If the matter is still not resolved within 14 days or longer by mutual agreement, the team member and/or the representative of the team member’s choice may then refer the matter to the People Lead - Primary Connect Operations.
3.2.7 If the matter has still not been resolved within 28 days or longer by mutual agreement, either party may refer the matter to FWC for conciliation, and if necessary, arbitration.
3.2.8 If the FWC conducts arbitration, the decision of the FWC will bind the parties, subject to either party exercising a right of appeal against the decision.
3.2.9 A team member is not able at any stage to be represented by a union, or by an official or employee of a union, unless the relevant union has coverage of that team member. In conciliation or arbitration before the FWC, the Company is entitled to be represented by a representative of its choice whether or not that representative is a team member of the Company.
3.2.10 At any stage of this process, the team member has up to 14 days, or longer by mutual agreement, after receiving a response from the Company to progress to the next step or the dispute will be considered finalised.
3.2.11 It is a term of this Agreement that while the dispute resolution procedure is being conducted work will continue as normal before the dispute arose unless a team member has a reasonable concern about an imminent risk to their health or safety.”
The Agreement was made on 10 November 2023, with employees to be covered by the Agreement voting by a majority for the making of the Agreement. It was approved by the Commission on 5 December 2023.[1] It came into operation on 12 December 2023.
In bargaining for the Agreement, the Respondent encouraged its employees, those who would be covered by the Agreement, to vote yes when requested to vote. The Respondent provided the following encouragement in the form of a flyer to its relevant employees:
“What do you get for a YES vote
1. To ease the burden of cost of living pressures right now, we are offering a $500 gift voucher, to be provided on a successful Yes Vote
2. Year 1 of the agreement delivers a 6% wage increase, payable from no later than 5 December 2023, conditional on a yes vote
a. For Level 2 this is a $2.01 per hour increase, $76 a week for Full Time, equating to $3,973 increase for year 1 of the agreement for day shift. When combined with the afternoon shift uplift, this equates to $5,239 in year 1
b. Year 2 - 2024 4.1%, Year 3 - 2025 3.3%, Year 4 - 2026 3.5%
3. Back pay of new wage increases since 2 August 2023, paid in w/c 4 December, conditional on a yes vote
4. Afternoon loadings staged increase to 130% (2.5% year 1, 2.5% in year 3)
5. 5% Increase on Saturday Loading from 135% to 140%
6. Increase in Boot allowance to $150 per year
7. Improved ability to bank RDO’s from 3 days to 5 days and allowing more flexible RDO rostering for Saturday and Sunday team members
8. Breaks to begin once team members enter the break room
9. An increase to 5 single day personal leave absences before team members can be required to provide evidence. If Primary Connect requires evidence after 5 absences, we will communicate in writing
10. Committing to provide 5 free articles of PPE clothing per year (shirts, singlets, shorts or pants)
11. Providing 3 days of paid Natural Disaster Leave
12. Confirming the EA applies to both the current site and the new Yatala site when it opens.
13. A 4 year deal backdated to the nominal expiry date of the 2nd of August to give you certainty for the next 4 years
14. An increase in the redundancy cap from 52 weeks to 56 weeks
15. The ability to give ongoing consent to work PT additional hours rather than submitting availability each week
16. Including a number of Union Rights in the EA so team members understand what they are
17. Agency labour to be paid no less than the rates of pay in the EA
18. A number of other compliance matters agreed to between the bargaining representatives”
Pertinently, the Respondent’s employees who were asked to vote for the Agreement were informed that if there was a yes vote (majority), there would be back pay to 2 August 2023, payable in the week commencing 4 December 2023.
The rates within the Agreement are contained in clause 5.1.1, reproduced below:
“5.1.1 The Base Rate of Pay for team members will be as follows.
Classification First full pay period on or after 2 August 2023
6%
First full pay period on or after 2 August 2024
4.1%
First full pay period on or after 2 August 2025
3.3%
First full pay period on or after 2 August 2026
3.5%
Level 1
(0-12 months) p/w
$1,071.55 $1,115.49 $1,152.30 $1,192.63 Per Hour $28.20 $29.36 $30.32 $31.39 Level 1
(13-24 months) p/w
$1,210.74 $1,260.38 $1,301.98 $1,347.54 Per Hour $31.86 $33.17 $34.26 $35.56 Level 2 p/w $1,349.81 $1,405.16 $1,451.53 $1,502.33 Per Hour $35.52 $36.98 $38.20 $39.54 Level 3 p/w $1,555.55 $1,619.33 $1,672.77 $1,731.31 Per Hour $40.94 $42.61 $44.02 $45.56
Clause 5.2 of the Agreement details how employees of labour hire companies working at the two BLDC locations are to be paid:
“5.2 Agency Labour
5.2.1 Agency Labour are workers provided by a third party, who undertake distribution and warehousing functions at the BLDC. The Company will ensure that any Agency Labour performing duties in accordance with the classification structure at clause 6.13 at BLDC, are paid no less than the applicable rate of pay at clause 5.1.1.”
Mr Jarvis contended that labour hire employees provided by Adecco, a labour hire company, are entitled to the pay rates within the Agreement, including back pay to the first full pay period on or after 2 August 2023. In following the Agreement’s dispute resolution procedure, Mr Jarvis brought his dispute to the attention of relevant Respondent managers.
Conference
On 10 May 2024, I convened a telephone conference with the parties. Having heard from Mr Jarvis, I questioned him as to how it is he asserts that Adecco employees, not covered by the Agreement, who did not vote to make the Agreement, would be entitled to back pay for an Agreement covering the employees of the Respondent? Further, I questioned Mr Jarvis as to whether he asserted that any former Adecco employee, who might have worked until, say, 1 October 2023 at the BLDC, would be entitled to back pay from the first full pay period on or after 2 August 2023 through to 1 October 2023 pursuant to an agreement that had not been made and had not ever covered the employee?
The Respondent contended that Mr Jarvis did not have standing to bring a dispute under the Agreement on behalf of agency employees who are not covered by the Agreement. It submitted that the Commission did not have jurisdiction to determine the application.
I afforded Mr Jarvis one week to consider if he wished to pursue the application. On 17 May 2024, Mr Jarvis communicated that he did wish to pursue the application as he believed that his argument is “valid in its simplicity”. The parties were directed to file material in support of their respective positions. The parties ultimately agreed a hearing was not required and the matter could be determined on the papers.
The SDA was invited to participate, including filing submissions. On 29 May 2024, the SDA politely declined the invitation to participate.
Question for arbitration
Having received Mr Jarvis’ material in support of his application, on 3 June 2024 the following correspondence was sent from my chambers to the parties:
“…With respect to the questions posed for arbitration, the Commissioner is of the preliminary view the question should be:
Question: Is the Respondent obliged to pay to Agency Labour as defined within the Brisbane Liquor Distribution Centre Enterprise Agreement 2023 (the Agreement) and who were performing work at the Brisbane Liquor Distribution Centre at any time from the first full pay period on or after 2 August 2023, the rates of pay within column 1 of the Agreement for the period from the first full pay period on or after 2 August 2023 and 11 December 2023?
…”
The Respondent was invited to propose an alternative question for arbitration.
Submissions of the parties
Mr Jarvis supplied copies of the correspondence sent between himself and the Respondent since he raised his dispute. He included the SDA log of claims which included a bargaining position of labour hire employees receiving the same rates as the Respondent’s employees, which he considered was achieved in clause 5.2 of the Agreement.
Mr Jarvis contended that if labour hire employees were not entitled to back pay, the Agreement would have said that the rates were to apply from the commencement of the Agreement.
Mr Jarvis produced various flyers issued to the Respondent’s employees which declare that in respect of Agency Rates, the Respondent will pay “site rates to ensure agency labour are paid no less than the rates of pay in the EA.”
The Respondent submitted that there is no relevant “dispute” between Mr Jarvis and the Respondent and therefore there is no matter before the Commission in relation to which it has jurisdiction. A dispute under the Agreement may only be a matter between a team member and the Respondent arising from the Agreement or the NES. There is no evidence of any dispute between affected Adecco employees and the Respondent, and if there was, it would not be a dispute amenable to resolution as Adecco employees are not covered by the Agreement.
The Respondent noted that from the operative date of the Agreement, all agency employees have been paid by their respective employers the rates of pay within the Agreement.
The Respondent submitted the following:
(a) Clause 5.2.1 of the Agreement acts prospectively and creates no retrospective obligation on the Respondent in relation to the terms and conditions of labour hire employees. Therefore, by definition it does not contemplate any obligation on the Respondent to provide or procure backpay for those employees.
(b) If the clause did contemplate a form of 'backpay' to Adecco workers, it would not be about a “matter pertaining” to the relationship between the Respondent and its employees and at least to that extent would be of no effect.
(b) Additionally, the relief Mr Jarvis seeks would require the Commission to impermissibly exercise judicial power in the dispute by declaring rights or by requiring the Respondent to make or require the making of payments to unspecified employees. There is no available way to resolve the dispute other than by way of the exercise of judicial power, which the Commission may not do. Otherwise, no order could be made requiring the Respondent to make any payment to a third party as no such obligation exists within the Agreement.
The Respondent submitted that if the Commission found it had jurisdiction to determine the dispute, in answer to the proposed question for arbitration, the question ought to be answered ‘No’.
The Respondent submitted that even if an alternative question for arbitration was put, being:
Question:Does the obligation on Woolworths pursuant to clause 5.2.1 of the Agreement require any action by Woolworths in respect of the period between the first full pay period on or after 2 August 2023 and 11 December 2023?;
the question ought to be answered ‘No’.
Consideration
Section 739 of the Act permits the Commission to deal with a dispute only if the Commission is expressly authorised to in accordance with a term within a range of instruments detailed in s.738 of the Act.
Mr Jarvis is entitled to raise a dispute between himself and the Respondent arising from the Agreement or the NES. Mr Jarvis does not have standing to raise a dispute and have it brought before the Commission in respect of his advocacy of agency employees who are not covered by the Agreement. Those agency employees would be employed pursuant to a modern award or an enterprise agreement with their employer, if one has been made. The relevant modern award or enterprise agreement must contain a dispute resolution procedure. Disputes raised by those agency employees may only be made pursuant to the relevant dispute resolution procedure and with their employer.
More broadly, and to inform Mr Jarvis as to his inability to raise a dispute in the Commission in respect of agency employees, it would appear that none of the terms and conditions of the Agreement flow to agency employees, as expressed in the Agreement, other than in respect of rates of pay. Mr Jarvis would not be entitled, for example, to bring a dispute on account of agency employees not being paid the meal allowance and first aid allowance at clause 5.5 of the Agreement; he would not have standing to do so as the agency employees are not covered by the Agreement.
Conclusion
Given that Mr Jarvis does not have standing to bring a dispute in respect of agency employees who are not covered by the Agreement, I am satisfied that the Commission has no jurisdiction to deal with the application. The application is accordingly dismissed.
If it had been necessary to answer either of the above questions for arbitration, the answer would have been ‘No’.
COMMISSIONER
[1] [2023] FWCA 4096.
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