Woolworths Group Limited
[2024] FWCFB 314
•22 JULY 2024
[2024] FWCFB 314
The attached document replaces the document previously issued with the above code on 22 July 2024.
A comment in the margins of the decision was removed.
Associate to Justice Hatcher
22 July 2024
| [2024] FWCFB 314 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Woolworths Group Limited
(AG2024/2300)
WOOLWORTHS AUSTRALIAN FOOD GROUP AGREEMENT 2024
| Retail industry | |
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 22 JULY 2024 |
Application for approval of the Woolworths Australian Food Group Agreement 2024.
Woolworths Group Limited (Woolworths) has made an application under s 185 of the Fair Work Act 2009 (Cth) (FW Act) for approval of an enterprise agreement known as the Woolworths Australian Food Group Agreement 2024 (Agreement). The application was accompanied by a Form F17A declaration made by Jannifer Kerr, Woolworths’ head of industrial relations, which sets out the steps that were taken by the company to comply with the pre-approval requirements in the FW Act, and explains why in the opinion of Woolworths the Agreement passes the ‘better off overall test’ (BOOT) requirement for approval. Attached to the declaration are explanatory materials that Woolworths provided to employees before they voted on the Agreement, as well as documents relating to other pre-approval requirements.
We note that, as the notice of employee representational rights in this matter was given on 5 December 2022, before the commencement of Part 14 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, the provisions of the FW Act as they were immediately prior to 6 June 2023 apply to the requirement for enterprise agreements to be ‘genuinely agreed’ in order to be approved.[1] However, because the Agreement was made on 19 June 2024, the current BOOT provisions of the FW Act apply.[2]
On 1 July 2024, the Full Bench raised three issues with Woolworths concerning the approval requirements for the Agreement and issued directions to Woolworths and the bargaining representatives to file materials in relation to the application more generally. The issues raised by the Full Bench were these:
A.In respect of part-time employees, is the requirement in clause 8.1 of the Agreement concerning the provision of an ‘agreed standard roster’ the same in substance as, or different to, the requirement in clause 10.5 of the General Retail Industry Award 2020 (Award) for an agreed regular pattern of work at the time of engagement?
B.Can the applicant confirm that when it alters a part-time employee’s standard roster pursuant to clause 9.1 of the Agreement, this cannot result in a reduction of the employee’s contract hours under clause 8.1(a)(i)?
C.Clause 6.1(a) of the Agreement provides that the span of ordinary hours on each day extends to 11:00 pm. Currently in respect of Woolworths’ operations, does clause 15.2(c) of the Award apply such as to extend the span of hours to 11:00 pm under the Award? If not, is this issue to be taken into account in the application of the better off overall test?
In response to issue A, Woolworths confirmed that clause 8.1 of the Agreement, read with clause 7.2(a) which deals with the timing of meal breaks which can only be changed by agreement, was the same in substance as the requirement in clause 10.5 of the Award for an agreed regular pattern of work at the time of engagement. In respect of issue B, Woolworths confirmed that when it alters a part-time employee’s standard roster under clause 9.1 of the Agreement, this cannot result in a reduction of contract hours under clause 8.1(a)(i). As to issue C, Woolworths affirmed that clause 15.2(c) of the Award would currently operate to extend the span of ordinary hours to 11:00 pm on all days of the week. These responses address our concerns.
The bargaining representatives for the Agreement were the Shop, Distributive and Allied Employees Association (SDA), the Australian Workers’ Union (AWU), the Australasian Meat Industry Employees Union (AMIEU), Retail and Fast Food Workers Union Incorporated (RFFWU Inc), Anthony Hicks and Rhys Michie.
The SDA and the AWU filed form F18 declarations in support of the application for approval of the Agreement. The AMIEU, RFFWU Inc and Mr Hicks filed declarations opposing the application on the basis that various approval requirements were not met.
AMIEU objections
The AMIEU raised three primary objections. The first was that the approval requirement in s 186(4) of the FW Act was not met because the Commission could not be satisfied that the Agreement contained no ‘unlawful terms’, and specifically, no ‘objectionable terms’ (see ss 186(4) and 194(b)). Such a term is one that ‘requires, has the effect of requiring, or purports to require or have the effect of requiring’, or that ‘permits …’ etc a contravention of Part 3-1 (see s 12). The term that was of concern to the AMIEU was clause 24, which is headed ‘Union recognition’ and confers certain benefits on the SDA and the AWU but not the AMIEU in respect of noticeboards, union fees, delegates’ rights, and the dispute resolution procedure. The AMIEU contended that these benefits had the effect of requiring or permitting a contravention of s 350, which states: ‘An employer must not induce an employee to take, or propose to take, membership action.’ A person takes ‘membership action’ if the person ‘becomes, does not become, remains or ceases to be, an officer or member of an industrial association’ (s 350(3)).
Several provisions in clause 24 were said to be objectionable. First, the AMIEU said that the effect of clause 24.4(b) was that employees who were members of the SDA and the AWU did not need the consent of Woolworths for their disputes with the company to be arbitrated by the Commission, whereas in all other cases, such consent was required. This submission is not accurate. In fact, the consent of both parties to a dispute is a universal precondition for the Commission to arbitrate the matter (clause 23.3(b)(ii)). Clause 24.4(b) states rather that where an employee is ‘accompanied or represented’ by the SDA or the AWU in relation to the dispute, Woolworths will provide its consent to arbitration. In effect, Woolworths provides standing consent to arbitration in such cases.
The AMIEU contended that if it cannot represent its members in their disputes with Woolworths, it would not be able to do its job effectively, and, as we understood the contention, this might lead employees to resign from their membership of the AMIEU. In our view, it is at least arguable that Woolworths’ standing consent to arbitration for those employees accompanied or represented by the SDA or AWU, but not the AMIEU, might ‘have the effect of permitting’ a contravention of Part 3-1 by inducing an employee to take ‘membership action’ by resigning from the AMIEU. This gave rise to a relevant concern on our part which we communicated to Woolworths at the hearing conducted on 12 July 2024. We make clear that it is not the mere fact that the clause differentiates between registered unions that created the concern. As the Full Bench said in Coles Retail Enterprise Agreement 2024,[3] it is a normal and acceptable incidence of bargaining that some unions may play a more prominent role than others and have greater influence in negotiating terms and conditions, including in relation to union-related matters. This may result in different rights for different unions. The concern arises because the differential treatment of unions is connected to employees’ access to an important benefit, namely access to arbitration of a dispute, which might be especially important for part-time employees in disputes concerning changes to working arrangements. Of course, that the Commission holds a ‘concern’ in relation to an approval requirement does not signify that it has reached any conclusion about the matter.
The AMIEU submitted more broadly that clause 24 of the Agreement contains other membership inducements which granted special rights to the SDA and the AWU but not the AMIEU in respect of union noticeboards, deduction of union fees, and paid leave of up to six shifts per year to attend courses conducted or approved by the SDA or AWU. We reject this submission. How employees would be motivated to take membership action in respect of such matters was not explained by the AMIEU, nor is it apparent to us. Section 350A of the FW Act now requires that employers not unreasonably hinder, obstruct or prevent the exercise of the rights of workplace delegates under the FW Act or a fair work instrument. Among the rights of workplace delegates in s 350C is an entitlement to ‘reasonable access’ to the workplace and workplace facilities where the enterprise is being carried on, and, unless the employer is a small business employer, which is not relevant here, ‘reasonable access to paid time, during normal working hours, for the purposes of related training’. In light of these statutory rights for workplace delegates of any registered employee organisation, which cover substantially the same field as the remaining provisions in clause 24 of the Agreement, the contention of the AMIEU that those provisions may induce employees to take membership action is in our view untenable.
In response to our concern as identified in paragraph [9] above, on 16 July 2024 Woolworths proffered an undertaking under s 190 of the FW Act to the effect that the AMIEU shall be included within the definition of ‘Union’ for the purpose of clause 24.4(b) of the Agreement. The result of this is that the positions of all relevant registered employee organisations are equivalised under the clause.
We have sought the views of the bargaining representatives about the proposed undertaking in accordance with s 190(4). The AMIEU and RFFWU Inc opposed the undertaking on the ground that it could not address the Commission’s concern because clause 24 more broadly would remain an objectionable provision. We reject this for the reasons already given. Additionally, we are not persuaded on the basis of the material before the Commission that clause 24.4(b), as amended by the proposed undertaking, would actually motivate employees to take or propose to take membership action. We would not construe the clause as authorising Woolworths to act unreasonably or capriciously in its consideration as to whether to grant consent. Nor do we consider that the clause is to be construed as permitting Woolworths to act unlawfully by refusing consent on the ground of non-union membership. As such, we are not persuaded that clause 24.4(b), as modified by the undertaking, requires, permits, purports to require or permit or has the effect or requiring or permitting action on the part of Woolworths that would amount to a contravention of Part 3-1 of the Act such as to make it an objectionable term. There is no basis for us to seek or accept further undertakings as proposed by the AMIEU, which would have the AMIEU explicitly stated to be a union with coverage at Woolworths and deemed to be a union for the purposes of clause 1.3 and clause 24 generally. These matters travel beyond the ambit of the concern that we have outlined above. Woolworths’ undertaking, which is appended to this decision as Attachment A, meets our concern. We are satisfied that it does not cause financial detriment to any employees and will not result in substantial changes to the Agreement, and we therefore accept it.
The AMIEU’s second objection to the approval of the Agreement was that the requirement in s 186(2)(a) of the FW Act had not been met because the Agreement had not been genuinely agreed to by employees covered by the Agreement.
The AMIEU submitted that a necessary condition for genuine agreement was absent, namely the employer’s compliance with its obligation in s 180(5) to explain to employees the terms of the Agreement and the effect of those terms. The concern here was essentially threefold. One was that employees were not informed that the wages of Jack Butler and Staff (JB&S) workers would be reduced under the Agreement. A second was that explanatory material provided to employees by Woolworths and the SDA was misleading in relation to the pay and benefits provided to employees under the Agreement. A third was that Woolworths’ ‘messaging’ in relation to the eligibility for employees to receive gift cards was confusing and wrongly suggested that employees would only receive a gift card if they voted ‘yes’.
We reject these contentions. First, it is clear that the explanatory materials provided by Woolworths to employees did address the terms of the Agreement that would affect JB&S employees. For one thing, explanatory materials explicitly identified, by red colour-coding, that the rates of pay for JB&S employees were ‘worse’ than those provided under their current enterprise agreement (see attachment U to the F17A declaration). Employees were also told that, although it was not a term of the Agreement, Woolworths had agreed to make a payment to eligible JB&S employees to mitigate the impact of receiving a lower base rate of pay (see attachment R to the F17A declaration). In his witness statement, Mr Hicks said that non-JB&S employees had not been told that their colleagues would receive a reduction in the base rate of pay, and that they had been denied an opportunity for altruism by voting against the Agreement out of concern for their JB&S colleagues. But this is not correct. Employees had access to the explanatory material addressing the pay arrangements for JB&S employees.
Secondly, contrary to the AMIEU’s submissions, the explanatory materials concerning wage increases under the Agreement were not false or misleading by reason of the fact that employees would receive a wage increase under the Award in any event. Woolworths told employees that the Award rates would increase.
Thirdly, we find nothing misleading about the explanatory materials relating to gift cards. These materials included a ‘key changes’ summary document (attachment O to the F17A declaration) which stated that, while it was not a term of the Agreement, eligible team members would receive an additional benefit ‘at the time of a “yes” vote’ in the form of gift cards. Contrary to the submission of the AMIEU, this was clearly a reference to the overall outcome of a vote on the Agreement; viewed objectively, as it must be, this did not imply that employees would receive a gift card only if they personally voted in favour of the Agreement. Eligibility for gift cards was clearly explained to employees by Woolworths: they had to be employed at the date of the close of the vote and when the gift card was provided, and must have worked at least one shift in seven of the 10 weeks prior to the end of the vote. There was no requirement that an employee must have cast a ‘yes’ vote. Further, Woolworths’ responses to FAQs made available to employees on 4 June 2024 specifically explained that eligibility for gift cards was not linked to union membership or how employees voted.
The AMIEU further contended that aspects of the process leading to the approval of the Agreement by employees were unfair and that this was a reasonable ground for the Commission to doubt that the Agreement had been genuinely agreed to by employees (s 188(1)(c)). It said that bargaining representatives and delegates were denied access to Woolworths’ internal platform ‘WorkJam’, which is used to communicate work-related messages to employees and to facilitate discussions about operational matters. The AMIEU submitted that its delegates were not able to use it to discuss the Agreement during the access period, which was said to have contravened the new delegates’ rights provisions in s 350A of the FW Act, and to have amounted to unfair conduct under s 228(1)(e).
None of these contentions leads us to apprehend that the Agreement was not genuinely agreed to. First, we are not persuaded that the decision of Woolworths to restrict access to WorkJam was unfair or a reason to doubt the genuineness of employees’ approval of the Agreement. Woolworths was required to explain the terms of the Agreement in accordance with s 180(5). It was not required to disseminate a ‘no case’ or to facilitate group discussions. Secondly, the contention concerning s 228 is misconceived. This section is not referable to any approval requirement. If the AMIEU thought that Woolworths was not complying with the good faith bargaining requirements it could have made an application for appropriate orders at the relevant time. Thirdly, ss 350A(1)(a), (b) and (c) do not engage with the approval requirements for an enterprise agreement. Fourthly and in any event, we do not consider that these provisions were contravened. It has not been established that the AMIEU’s opposition to the proposed agreement amounted to an exercise in representing the interests of members or persons eligible to be members of the AMIEU by delegates, or that any such representation reasonably required access to WorkJam to communicate with members. Further, there was evidence that the platform was being used for extraneous purposes. Mr Hicks, who is an AMIEU delegate, said in his witness statement that he had posted on WorkJam statements that employees would be better off joining the AMIEU or RFFWU Inc and provided information on how to resign from the SDA. It is difficult to see how such behaviour would be a reasonable exercise of rights under s 350C or how it related to employees’ capacity to genuinely agree to the Agreement. The misuse of WorkJam was evidently part of the reason why Woolworths decided not to allow it to be used for discussions about the Agreement.
There is no proper basis for us to exercise the discretion in s 192, as the AMIEU invited us to do in its written submissions. That section provides that the Commission may refuse to approve an enterprise agreement if it considers that compliance with the terms of the agreement may result in a person committing an offence against a law of the Commonwealth or being liable to pay a pecuniary penalty in relation to a contravention of a Commonwealth law. We do not consider that approval of the Agreement and any subsequent compliance with its terms might have these consequences. The AMIEU said that Woolworths also denied bargaining representatives and delegates access to other facilities, but cited only the example of Woolworths not sending text messages. It cannot seriously be argued that Woolworths had any obligation to arrange for text messages to be sent to employees on behalf of bargaining representatives and delegates.
The AMIEU’s third objection was that the Agreement did not pass the BOOT. It said that employees engaged on fixed-term contracts under the Agreement would not be better off overall because, under the Award, they could not be engaged on this basis. It further submitted that employees who perform higher duties as store managers would not be better off overall under the Agreement because they would not receive remuneration in the amount equal to the level 8 rate of pay as they would have done under the Award.
We reject these contentions. The fact that employees can be engaged on fixed-term contracts under the Agreement is not a reason to conclude that they will not be better off overall under the Agreement. The Award does not prohibit such engagement. It simply says nothing about it. Secondly, we do not consider that the Agreement fails the BOOT in respect of employees who perform higher duties as managers. In our assessment, such employees would not be entitled to the level 8 rate of pay under the Award for the reasons given by Woolworths: an employee asked to lead a store on a higher duties basis will not be required to exercise all of the skills and duties of a store manager at level 8 under the Award. The assumption underpinning the AMIEU’s contention is not correct. In any event, this single contingent allowance, if less favourable in the manner contended for by the AMIEU, would not mean that the employees concerned would no longer be better off overall under the Agreement than under the Award, in light of the wages in the Agreement which will exceed Award rates in each year of its nominal life. The AMIEU also contended that the Agreement did not pass the BOOT in respect of part-time employees. We consider this argument below.
RFFWU Inc objections
RFFWU Inc objected to the approval of the Agreement on the grounds that the Commission could not be satisfied that it passed the BOOT. Like the AMIEU, RFFWU Inc contended that part-time employees would not be better off overall under the Agreement because the rates of pay in the Agreement are only marginally in excess of those in the Award, and this small benefit was outweighed by the employer’s ability to alter their working arrangements. We agree with RFFWU Inc and the AMIEU, and Woolworths accepted, that the Agreement is somewhat less beneficial to part-time employees than the Award, in that it allows Woolworths to change a standard roster, whereas clause 10.10 of the Award does not permit a change to ‘guaranteed hours’. We also accept the submissions of RFFWU Inc to the effect that predictability of working arrangements is of particular importance to part-time employees. Nevertheless, the detriment is a relatively small one, particularly in light of the safeguards in clause 9.1 of the Agreement and the fact that the number of contracted weekly hours cannot be reduced. In our view the Agreement, which provides for higher rates of pay, is overall more beneficial to part-time employees than the Award. RFFWU Inc contended that there was no specific, separately identifiable monetary benefit accruing only to part-time employees, but we do not see how this affects the BOOT analysis. It may mean that the Agreement passes the BOOT in relation to part-time employees by a margin that is smaller than for full-time employees but this is of no consequence. Nor does it matter that the margin is a small one. What matters is that the Commission be satisfied that for all award-covered employees and reasonably foreseeable employees, a margin exists.
It is also necessary to apply s 193A in our consideration of whether the Agreement passes the BOOT. Relevantly, s 193A(2) requires the Commission to undertake a global assessment of whether each employee concerned would be better off and s 193A(3) requires the Commission to give consideration to the views of the employer, award-covered employees and the bargaining representatives. In this last respect, we note that the F18 filed by the SDA refers to some 31 respects in which it considers the Agreement to be more beneficial to employees than the Award and expresses the view that the Agreement passes the BOOT. The SDA, together with the AWU, represents about 42 per cent of all employees covered by the Agreement (compared to less than 0.6 per cent represented by RFFWU Inc). We are satisfied that the Agreement passes the BOOT.
RFFWU Inc further contended that the Commission could not be satisfied that the Agreement was genuinely agreed to by the employees covered by the Agreement. It advanced 12 arguments. First, it submitted that the employees who participated in the vote to approve the Agreement included casual employees who were ineligible to vote because they were not persons employed ‘at the time’, as opposed to persons who were not so employed but were ‘usually employed’.[4] It said that of the 124,590 eligible voters, 48,106 were said by Woolworths to have been casuals, and that it was aware that at least some casuals who were not employed at the time had been asked to vote. In his witness statement, Joshua Cullinan said that, when he learned that some 48,000 of the employees who voted on the Agreement were casuals, he contacted his organisation’s membership. One member, Xanthe Magree, told him that she had not worked a shift since 19 May 2024 but had nevertheless received a link to vote on the Agreement. A second worker, who was not identified, had told Mr Cullinan that he had not worked in the seven days prior to the start of the vote but had been permitted to cast a vote. Mr Cullinan also said that he was aware from his experience representing employees of Woolworths that there was a high ‘churn rate’ for casuals. RFFWU Inc submitted that Woolworths appeared to have allowed all casuals to vote, or had set impermissibly wide boundaries. It further contended that irrespective of the numbers, the vote lacked integrity because the large number of casuals employees were less likely to be present in the workplace at the time of the vote and were therefore less likely to have been exposed to information about the Agreement and more likely to have been influenced by ‘inducements’ such as gift cards.
At the hearing, Ms Kerr gave evidence that Woolworths had initially compiled a voter list that included all casual employees. It then refined this list to produce a list of casuals as at the end of the access period, immediately before the commencement of the vote. These casuals were allowed to participate in the vote. Afterwards, Woolworths undertook a ‘cleansing’ exercise through an electronic process based on employee identification number whereby it excluded casuals unless they fell into one of two categories: those who worked at least one shift during the seven day access period immediately before the start of the vote (category 1); and those who during the access period were rostered to work a shift the following week during the voting period (category 2). Woolworths said that it had adopted this approach being mindful of the difficulties that can arise in relation to ascertaining those casuals who are eligible to vote on an enterprise agreement. Woolworths counted the votes of all casuals in categories 1 and 2 and contended that it was correct to do so. Section 181(1) states that an employer may request the employees ‘employed at the time’ who will be covered by an agreement to approve it by voting for it. It was clear from the authorities that the relevant ‘time’ was the entire seven-day access period ending immediately before the vote. Casuals who worked a shift in this period were plainly so employed. But so were casuals who at that time were on a roster to work the following week. Woolworths contended that these were casuals who in reality were employed at the time of the access period even though they did not work a shift in that week.
In Appeal by Kmart Australia Limited[5] (Kmart), the Full Bench concluded that the ‘time’ at which employees covered by the agreement had to be employed in order to be requested to vote referred to in s 181(1) encompassed the whole of the access period in s 180(4) and was to be equated with the ‘time’ referred to in s 180(2)(a).[6] The Full Bench in Kmart concluded that casual employees who had been engaged for the first time during the voting period had not been ‘employed at the time’ at which employees were requested to vote.[7] The Full Bench did not say that existing casuals who did not work during the access period were ineligible to do so. In our view, Woolworths’ contention that category 2 casuals were eligible to vote has merit. These were not just casuals ‘on the books’ who might or might not have been given further shifts. The fact that these employees had been allocated shifts on the roster is evidence of the actuality and currency of their casual employment during the access period.
However, it is not necessary for us to reach a concluded view on this matter. If ineligible employees were allowed to participate in a vote on an enterprise agreement, it is necessary to consider whether their votes could have affected the outcome. In Kmart, it was clear that they could not have done so.[8] And the same is the case here. Based on the evidence of Ms Kerr and the declaration of Lokesh Yadav lodged by Woolworths after the hearing, which we accept, there were 4,701 employees in category 2. Even if all of these employees were ineligible to vote, and all of them had cast votes to approve the Agreement, this could not have affected the outcome, because the ‘yes’ vote of 58,757 exceeded the ‘no’ vote of 35,997 by a margin of 22,760. Mr Cullinan’s evidence refers to two casuals who may not have been eligible to vote but this is inconsequential. We note that there is no suggestion in this case that employees who were eligible to participate in the vote were excluded from it. We are satisfied that employees employed at the time who would be covered by the Agreement were asked to vote on it, as required by s 181(1). The Agreement was approved in accordance with s 182(1) because a majority of eligible voters who cast a valid vote approved the Agreement. We reject RFFWU Inc’s alternative contention that irrespective of the numbers who voted in favour of the Agreement, the vote lacked integrity. This contention does not engage s 181. We understand it to pertain to s 188(1)(c). But we do not accept the premises of the argument. More generally we do not consider that there are ‘other reasonable grounds’ for believing that the Agreement was not genuinely agreed to by employees.
RFFWU Inc, like the AMIEU, contended that Woolworths had failed to comply with the requirement of s 180(5) to take all reasonable steps to explain to employees the terms of the Agreement and the effect of those terms, and that for this reason the Agreement had not been genuinely agreed. The remaining 11 of its 12 objections were directed at this contention. The second objection was that Woolworths did not inform employees that some employees, namely those at JB&S, would suffer reductions in base rates under the Agreement. But as we have said above, this is not the case. RFFWU Inc’s own submissions later acknowledge this, where the contention is made that Woolworths should have made it clearer to non-JB&S employees that their colleagues would have a lower base rate under the Agreement. We accept in principle that employees’ vote on an agreement can be motivated by concern for others as well as self-interest, but the relevant explanations were reasonable ones. Contrary to the submission of the objectors, employees were not prevented from acting altruistically.
The third and fourth objections of RFFWU Inc were that Woolworths had misrepresented to employees that they would have better wages, higher wages, or guaranteed wages if they voted for the Agreement, when in fact some employees would suffer wage reductions; and that it was not correct, or misleading, to say that employees would have better wages at all. But these contentions focus on the position of JB&S employees and are in substance a recapitulation of the second objection, which we reject.
RFFWU Inc contended, fifthly, that Woolworths misled employees by stating or suggesting that employees would only receive better or higher wages if the Agreement was voted up, when in reality the Commission’s annual wage review (AWR) decision of June 2024 would deliver a wage increase for employees irrespective of whether the Agreement was approved by vote, as well as increases through the AWR in each of 2025, 2026 and 2027, because of the effect of s 206 of the FW Act. It contended that what Woolworths ought to have said to employees was that if the Agreement was approved, they would receive a greater increase because the AWR would be applied to employees’ current actual rates rather than only to the award minimum rates. Further, RFFWU Inc said that several employees had been told that there would be no guaranteed wage increases unless there was an enterprise agreement. It referred in this regard to the witness statements of Sigrid Ebbinghaus, Felix Berry, and Peter Lawson. Ms Ebbinghaus said that a Woolworths manager told a group of some 8 employees, of which she was one, that in order to increase wages a ‘yes’ vote was necessary and that the manager did not specify that wages were increasing in the relevant award. Ms Ebbinghaus stated that she then raised this, but the manager would not acknowledge that there would be increases to wages through the Award increase even if there was a ‘no’ vote. However, the words spoken by the manager in the exchange are not before the Commission. There is an insufficient basis here to concluded that Woolworths’ explanation of the Agreement to the eight employees or generally was impugned by this conversation. Mr Berry said in his statement that an ‘SDA staff member’ told a group of employees that there would be no wage increase without a ‘yes’ vote. But it is unclear who this person was or whether they were speaking for Woolworths. And Mr Lawson said that an ‘SDA representative’ told him and other employees something similar. But this was not a statement made by or on behalf of the employer. In any event, s 180(5) sets a standard of reasonableness, not perfection. An errant statement by a manager to a small group of employees would not necessarily mean that an employer had failed to comply with the provision, particularly having regard to the entirety of the extensive explanatory materials provided by Woolworths to its employees.
Sixthly, RFFWU Inc contended that Woolworths had misrepresented that over the past decade the Commission had increased award rates by at least 2 per cent, when in fact the 2020 increase was only 1.75 per cent. Also, the time period selected by Woolworths had excluded 2009, when no increase was awarded. RFFWU Inc said that it informed Woolworths about this error but to its knowledge it was not corrected. RFFWU Inc said that Woolworths’ statements to employees about historical award increases were evidently directed at the increases they could expect under the Agreement, which are linked to increases in rates through the AWR. But in our view these were minor matters that reflect no failure to take the reasonable steps to explain the terms and effect of the Agreement as required by s 180(5).
Seventhly, RFFWU Inc contended that Woolworths had failed to take reasonable steps to explain the Agreement because it did not inform employees that the minimum hourly award rate would increase in July 2024 to $25.65, irrespective of the outcome of the vote. Further, prior to the access period, Woolworths had published wages tables comparing the Award and the Agreement rates. On the first day of the access period, these were updated to reflect the 3.75 per cent increase in the Award rate that would flow through to the Agreement rate, but the ‘Award rate’ side of the table was not updated, giving the impression that the Agreement rates would exceed the Award by a greater margin than was in fact the case. However, Woolworths explained, and we accept, that the document was prepared before the outcome of the AWR was known and within 24 hours of the decision being handed down the document was quickly updated to include an asterisk indicating the quantum of the increase. The concern raised by RFFWU Inc does not cause us to conclude that Woolworths failed to comply with s 180(5).
Eighthly, RFFWU Inc said that Woolworths made, allowed and did not correct misrepresentations that only members of the SDA were permitted to vote. We disagree. The evidence does not support such a conclusion. Attached to a witness statement of Marie Gunner was a photograph of a ‘flyer’ referring to an SDA information session which stated that non-SDA members would not be allowed to vote on the Agreement. Plainly, this statement was false if it is to be understood as referring to the vote on the Agreement. Ms Gunner said that a post to a similar effect appeared on WorkJam and remained uncorrected during the voting period. However, as RFFWU Inc acknowledged, Woolworths had provided employees with explanatory material about how to vote which was accurate. The existence of an erroneous flyer and post that are not attributable to Woolworths does not speak to any failure on its part to comply with s 180(5).
Ninthly, RFFWU Inc submitted that Woolworths had made misrepresentations about employees’ eligibility for gift cards. These mirrored the contentions of the AMIEU, which we have rejected above. The tenth objection of RFFWU Inc was that Woolworths and the SDA removed materials which encouraged a vote against the Agreement, which was said to have prevented employees from having access to information that could have informed them about the effects of the terms of the Agreement. Its eleventh objection was that the company and the SDA had restricted common channels of communications with the effect that employees could not obtain ‘truthful’ information about the Agreement, by which it evidently meant information prepared by RFFWU Inc and the AMIEU. But as we have said above in relation to the objections of the AMIEU, while Woolworths had an obligation to take all reasonable steps to explain the Agreement to employees, it had no obligation under Part 2-4 of the FW Act to facilitate or allow RFFWU Inc or the AMIEU to distribute information about the Agreement to employees. Finally, RFFWU Inc said that Woolworths and the SDA did not properly explain the detriments of the Agreement because relevant explanations were ‘disguised’ as a result of being ‘buried’ in online summaries, rather than presented clearly in all promotional materials. Even if it is accepted that the explanatory materials presented the Agreement in a positive light, we are satisfied that it was not misleading, either as to the terms of the Agreement or the effect of those terms.
We consider that Woolworths complied with s 180(5) of the FW Act. It took all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to employees employed at the time who would be covered by the Agreement.
Other submissions
Mr Hicks filed written submissions in which he supported and elaborated upon the submissions of the AMIEU. Our earlier disposition of the AMIEU’s submissions addresses the matters raised by Mr Hicks.
A number of employees covered by the Agreement sent correspondence to the Commission expressing their opposition to the approval of the Agreement. Some do not engage with approval requirements or are unparticularised. Others cover terrain that is dealt with above. The correspondence from those employees does not cause us to have concerns that any of the approval requirements for the Agreement have not been met.
Conclusion
We are satisfied that, subject to the undertaking referred to at paragraph [11] above, which is taken to be a term of the Agreement, the requirements of ss 186, 187 and 188 of the FW Act have been met. The SDA, the AWU and the AMIEU have given notice under s 183 that they want the Agreement to cover them. As required by s 201(2) of the FW Act, we note that the Agreement covers those organisations. Woolworths asked that we correct under s 218A an obvious typographical error in the last line of clause 5.2 by replacing ‘orking’ with ‘working’. We do so but note that there is a growing number of s 218A applications seeking minor editorial corrections, and that applicants should not expect that the Commission will always exercise its discretion to grant them.
The Agreement is approved as at the date of this decision. In accordance with clause 1.1(a) of the Agreement and s 54(1)(b) of the FW Act, the Agreement will operate from 21 October 2024. The nominal expiry date of the Agreement is 17 April 2028.
PRESIDENT
Appearances:
R Dalton KC and M Minucci, counsel, for Woolworths Group Limited.
W Friend KC for the Shop, Distributive and Allied Employees Association.
B Swan for the Australasian Meat Industry Employees Union.
S Kelly, counsel, for the Retail and Fast Food Workers Union Incorporated.
A Hicks, bargaining representative, AMIEU delegate.
Hearing details:
2024.
Sydney and Melbourne, by video using Microsoft Teams:
12 July.
Attachment A
[1] Fair Work Act 2009 (Cth) sch 1 item 66.
[2] Ibid sch 1 item 67.
[3] [2024] FWCFB 250 [29].
[4] National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98, 232 FCR 246, 251 IR 209.
[5] [2019] FWCFB 7599, 291 IR 233.
[6] Ibid [33].
[7] Ibid [37].
[8] Ibid [43].
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