Woolworths Group Limited

[2020] FWC 1808

[2020] FWC 1808

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Woolworths Group Limited
(AG2019/975)

Retail industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 5 MAY 2020

Application for approval of the BIG W Stores Enterprise Agreement 2019 — alleged non-compliance with ss.180(5) and 188 of the Fair Work Act 2009 — allegations rejected — enterprise agreement approved

Introduction

[1] On 17 September 2019 I issued a decision approving the BIG W Stores Enterprise Agreement 2019 (Agreement) with undertakings. 1 The following further reasons are to be read in conjunction with that decision.

[2] The Agreement is a single enterprise agreement. It covers and applies to relevant employee “team members” of Big W Stores (including Big W Optical) (Big W).

Procedural Background

[3] The application for approval of the Agreement (pursuant to s.185 of the Fair Work Act 2009 (Act)) was filed with the Fair Work Commission’s (Commission) Registry in Sydney on 1 April 2019.

[4] In support of the approval of the Agreement, the documents filed by email were:

(a) Form F16 executed by Ms Kari Samantha Johnson (Employee Services Manager, Woolworths Group Limited, Big W);

(b) Form F17 executed by Ms Johnson, with annexed materials (F17);

(c) a Form F18 on behalf of the Shop, Distributive and Allied Employees Association (SDA), executed by Mr Gerard Dwyer (National Secretary of the SDA), with annexed materials;

(d) a Form F18 on behalf of the Australian Workers’ Union (AWU), executed by Mr Stephen Kenneth Baker (Branch Secretary, Queensland) for the AWU; and

(e) a copy of the Agreement (duly executed).

[5] By way of the Form F18s referred to above, the SDA and the AWU respectively declared that they were bargaining representatives for the Agreement, supported the approval of the Agreement, and sought to be covered by the Agreement.

Objections to the approval of the Agreement

[6] On 3 April 2019, the Retail and Fast Food Workers’ Union (RAFFWU) emailed the Commission seeking to be heard in the proceedings. By way of written submissions, RAFFWU submitted that it was a bargaining representative for the Agreement and opposed its approval. Further, RAFFWU submitted that the objections that it would be making in the proceedings broadly encompassed (in summary):

(a) the absence of evidence that can satisfy the Commission that the Agreement is capable of approval;

(b) the absence of all reasonable steps having been taken to explain the terms of the Agreement, and the effect of those terms, to relevant employees in accordance with s.180(5) of the Act; and

(c) the absence of genuine agreement by reference to s.188 of the Act.

[7] Given that RAFFWU was a bargaining representative for the Agreement, it was entitled to be heard by the Commission in respect of its objections.

Directions issued regarding submissions, etc

[8] On 2 May 2019, I issued directions regarding the filing and serving of submissions, witness statements, and documentary materials in respect of issues/concerns raised by the Commission regarding the approval of the Agreement. Further, the parties were invited to agitate and/or respond to any further issues that the parties sought to address.

[9] The Commission’s issues were provided to the parties on 8 May 2019.

[10] The timetable set out in the directions concluded on 26 June 2019.

First interlocutory proceeding regarding the production of documents

[11] On 28 May 2019, RAFFWU filed a Form F52 with my Chambers, seeking an order for the production of documents from Big W.

[12] On 4 June 2019, a hearing was held regarding the F52 Application. Having considered the parties submissions and evidence filed prior to, and relied upon during that hearing, I dismissed RAFFWU’s F52 Application on the basis that the scope of materials was too broad and, regardless, the F52 Application had been made prematurely (i.e. before Big W had filed its evidentiary materials).

Confidentiality and limited access orders regarding part of Big W’s evidence

[13] On 19 June 2019, Big W filed submissions, witness statements, and other evidentiary documents. In doing so, Big W noted that there were redacted exhibits attached to the witness statement of Mr Colin Grahame Storrie (Group Portfolio Director, Woolworths Group Limited) dated 19 June 2019. Big W sought permission to file unredacted copies of that witness statement (on a confidential basis), as well as an order for limited access over Mr Storrie’s exhibited documents.

[14] On 28 June 2019, I made an order that the unredacted exhibits to the statement of Mr Storrie dated 19 June 2019 were confidential. That order limited access to those exhibits to the persons named therein. Further, on 2 July 2019, I made an order that the documents produced to the Commission by Big W on 24 June 2019 were not be accessed by any person or party except by leave of a Member of the Fair Work Commission. Ultimately, at the hearing on 17 September 2019, I made an order that the whole of Mr Storrie’s statement and evidence was to be treated as confidential in the proceedings (i.e. on the basis of the commercially sensitive information arising in and from such evidence).

Second interlocutory proceeding regarding the production of documents

[15] On 19 July 2019, RAFFWU filed a further Form F52 with my Chambers, seeking an order for the production of documents from Big W. Moreover, RAFFWU filed written submissions indicating its intention to file for an order that a person appear before the Commission to give evidence. The person the subject of that proposed order was Mr Brad Banducci (Managing Director and Chief Executive Officer, Woolworths Group Limited).

[16] On 9 August 2019, I held a hearing regarding the further F52 Application. The upshot of that hearing was that I rejected that an order be made against several categories of documents sought. I also rejected RAFFWU’s request for an order to attend and give evidence in relation to Mr Banducci. However, I accepted that orders ought to be made in respect of a limited number of categories of documents (albeit in an amended form). 2

[17] On 12 August 2019, I made orders that required the production of a discrete category of documents from Big W. On 19 August 2019, Big W informed the Commission that it did not have any documents to produce pursuant to that order.

[18] The matter was then set down for substantive hearing on 16 and 17 September 2019.

RAFFWU files Form F18A

[19] On 13 September 2019, RAFFWU filed a Form F18A with the Commission. This was a statutory declaration executed by Mr Joshua Cullinan (Secretary of RAFFWU), whereby Mr Cullinan declared that RAFFWU was a bargaining representative for the Agreement, and that the persons (relevant employees) represented by RAFFWU do not support the approval of the Agreement.

Hearing regarding the approval of the Agreement

[20] Hearings were conducted in Sydney on 16 and 17 September 2019. At those hearings, Mr A Gotting (of Counsel), instructed by Ashurst Lawyers, appeared on behalf of Big W. Mr W Friend (of Queen’s Counsel), instructed by A J Macken & Company Lawyers, appeared on behalf of the SDA. Mr J Cullinan and M Cornthwaite appeared on behalf of RAFFWU. The AWU advised the Commission by way of email that it was unable to attend the hearing, and reiterated its support for the approval of the Agreement.

[21] Pursuant to s.596 of the Act, I granted permission to Big W and the SDA to be legally represented in the proceedings generally. I granted such permission on the basis that the hearing would be conducted more efficiently given that the issues before me were sufficiently complex to warrant the assistance of legal representatives. I note there was no opposition to any party being legally represented.

Agreement approved

[22] On 17 September 2019, and following closing submissions from the parties, I gave an ex tempore decision approving the Agreement. The decision was reaffirmed in writing later that same day, and both the written decision and the Agreement were distributed to the parties and published on the Commission’s website.

Background to the Agreement

[23] The Agreement was made by way of valid majority employee vote on 18 March 2019. 3 It covers relevant employees of Big W (being employees of the Woolworths Group Limited and Woolworths (South Australia) Pty Limited (being “single interest employers” as defined by s.172(5) of the Act)).

[24] At the time the Agreement was made, 15,900 relevant employees were to be covered by the Agreement. Of that total number of employees, 11,019 employees cast a valid vote. Of the voting cohort, 10,114 employees voted to approve the Agreement (i.e. a 91.79 percent majority).

[25] The voter demographics were as follows:

(a) 11,190 were female;

(b) 259 were (or were also) Aboriginal or Torres Strait Islander;

(c) 7,461 were (or were also) part-time;

(d) 7,999 were (or were also) casual;

(e) 3,330 were (or were also) under 21 years of age; and

(f) 4,560 were (or were also) over 45 years of age. 4

[26] The applicable modern award for the purposes of the “Better Off Overall Test” (BOOT) is the General Retail Industry Award 2010 (Award).

[27] Rates of pay under the Agreement are up to 4.92 percent higher than the Award. There was no dispute that the Agreement passes the BOOT. By reference to my analysis below, I am satisfied that the Agreement passes the BOOT.

[28] The ‘real effect’ of the Agreement being approved by the Commission is that, relevantly, it will replace the BIG W Stores Certified Agreement 2012 (2012 Agreement) (being the predecessor enterprise agreement to the Agreement).

Comparison between the Agreement and the Award for the purposes of ss 180(5), 180(6), 186(2)(a), 188, 190 and 193 of the Act

[29] Throughout this decision I express various views and opinions, and make relevant findings, as to my satisfaction in respect of ss 180(5), 180(6), 186(2)(a), 188, 190 and 193 of the Act. In this regard, and as a prerequisite to, or as part of, making such findings, I am required to undertake a comparison between the terms and conditions under the Agreement and the Award. In this regard, I have assessed and compared the terms and conditions of the Agreement as against the Award, as summarised in the following table:

Agreement	General Retail award
Hours	Monday to Friday 7:00am to 11:00pm. Saturday 7:00am to 11:00pm. Sunday 9:00am to 11:00pm. Maximum nine hours (with one day being maximum 11 hours). Two consecutive days off work, or three in a fortnight. Further, at least once a fortnight, the days off work are Friday and Saturday, Saturday and Sunday, or Sunday and Monday. 19 days per four-week cycle (20 by agreement).	Monday to Friday 7:00am to 9:00pm. Saturday 7:00am to 6:00pm. Sunday 9:00am to 6:00pm. 38 hours per week. Maximum nine hours (with one day being maximum 11 hours). In the case of retailers whose trading hours extend beyond 9:00pm Monday to Friday or 6:00pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week will be 11:00pm.
Part-time employees	Minimum three hours, maximum nine hours (with one day being maximum 11 hours). Maximum 38 hours per week. Max 144 hours in a four-week roster. Part-time employees may elect to work additional hours at base pay/ Overtime to be paid for hours worked outside of rostering principles (as defined in the agreement).	Minimum three hour engagement. Hours worked by part-time employees in excess of the agreed hours: - 150% (first three hours); and - 200% (all subsequent hours).
Casual employees	125% loading. Minimum three hours per rostered shift.	125% loading. Min three hour engagement (1.5 hours if full-time secondary school student and other criteria met).
Shift penalties	Full-time and Part-time Monday to Friday 6:00pm to 11:00pm at 125%. Saturday 7:00am to 11:00pm at 125%. Monday to Saturday 11:00pm to 7:00am at 150% for first the first hours, and 200% thereafter. Sunday 12:00am to 9:00am at 200%. Sunday 9:00am to 11:00pm: - Until June 2019 at 180%; - From 1 July 2019 to 30 June 2020 at 165%; - From 1 July 2020 at 150%; and - Sunday (11:00pm to 12:00am) at 200%. Casual (inclusive of penalty) Monday to Friday 6:00pm to 11:00pm: - Prior to 1 October 2019 at 130%; - From 1 October 2019 at 135%; - From 1 March 2020 at 140%; - From 1 October 2020 at 145%; and - From 1 March 2021 at 150%. Saturday 7:00am to 11:00pm: - Prior to 1 October 2019 at 140%; - From 1 October 2019: 145%; and - 1 March 2020: 150%. Monday to Saturday: 11:00pm to 7:00am: - 175% for the first three hours, and 225% thereafter. Sunday 12:00am to 9:00am: - 225%. Sunday 9:00am to 11:00pm: - From 7 Jan 2019 to 30 June 2019 at 185%; and - 1 July 2019 at 175% Sunday 11:00pm to 12:00am: - 225% Note: Sunday penalties will move in line with the Award.	Day workers Ordinary hours worked after 6:00pm: - 125% (does not apply to casuals); or - Casuals: 130% after 6:00pm. Shift workers Shiftwork means a shift starting at or after 6:00pm on one day and before 5:00am on the following day: - Monday to Friday at 130% (155% for casuals); - Saturday at 150% (175% for casuals); and - Sunday at 200% (225% for casuals). Note: Shift work does not include a shift which starts and finishes on the same day within the span of ordinary hours specified in this award.
Weekend penalties	See above	Saturday 125% (but 135% for casuals between 7:00am to 6:00pm). Sunday 180% (but 185% for casuals). Note: Penalty Rates reduction starting from 1 July 2017.
Public holiday penalties	225%. Casual 250%.	225% 250% for casuals Note: Penalty Rates reduction starting from 1 July 2017.
Overtime	Full-time and part-time To be paid overtime rates for all hours worked outside of the rostering principles (as defined in the Agreement), including for all hours worked: - in excess of 152 hours per four-week cycle in accordance with the roster provisions of the Agreement; - in excess of 19 days per four-week cycle (for team members on a 19-start roster), or 20 days per four-week cycle (for team members on a 20-start roster); - in excess of nine hours in one day, unless the day is their permitted 11-hour day for the week; - in excess of 38 hours in any one week; and - outside the span of hours in clause 6.1.1, unless worked in accordance with clause 6.1.2. Monday to Saturday 150% for the first three hours, and 200% thereafter. Sunday 200%. Public holidays 250%. Casual In excess of 38 hours per week (or averaged roster), in excess of nine hours per day (unless permitted 11 hour day), and outside span. Monday to Saturday 175% for the first three hours, and 225% thereafter. Sunday 225%. Public holidays 275%. Note: All employees may take time-off-in-lieu at overtime rates, which is paid out on termination.	An employer may require an employee (other than a casual employee) to work reasonable overtime at overtime rates. Hours worked in excess of the ordinary hours of work, outside the span of hours (excluding shiftwork), or roster conditions: Monday to Saturday 150% for the first three hours, and 200% for all subsequent hours. Sunday 200%. Public holiday 250%.
Annual leave loading	17.5% or the relevant weeknight and weekend penalty rates, whichever is greater but not both.	Day workers 17.5% or the relevant weekend penalty rates, whichever is the greater but not both. Shift workers 17.5% or the shift loading (including relevant weekend penalty rates) whichever is the greater but not both
Allowances	Overtime meal More than one hour: $18.29 (if continues for more than four hours, a further $16.57). Special clothing Reimburse cost purchasing special clothing. Laundry Full-time at $6.25 per week; or Part-time or casual at $1.25 per shift. First Aid $10.89. Transport 79c per kilometre. Recall Minimum three hours at overtime rate. Higher Duties More than two hours, paid for the whole shift otherwise paid for time worked. Broken Hill 94c per hour. Northern Territory allowance $16.60 per week. Travelling time Paid travel time at ordinary time (unless Sundays and Public Holidays in which case 150%). Excess travel costs Move from one store to another for less than three weeks: Costs will be reimbursed. Relocation of team member Reimbursed. Transport of team members Starts or finishes work after 10:00pm, or prior to 7:00am, and regular means of transport is not available, and the team member is unable to arrange their own alternative transport, then employer will reimburse for taxi.	Per week First Aid $10.89. Liquor licence allowance $25.96. Meal $18.29 (more than one hour’s overtime). Special clothing allowance $6.25. Transport 78c per kilometre. Tool $15.29.

Big W’s submissions and evidence

[30] In addition to the materials already filed, Big W relied upon the following evidence in support of the approval of the Agreement:

(a) witness statement Ms Kari Samantha Johnson dated 19 June 2019;

(b) witness statement of Mr Colin Grahame Storrie dated 19 June 2019; and

(c) further witness statement of Ms Kari Samantha Johnson dated 12 September 2019.

RAFFWU submissions and evidence

[31] RAFFWU relied upon the following evidence in opposition to the approval of the Agreement:

(a) RAFFWU’s F18A;

(b) witness statement of Ms Maree Gunner dated 5 June 2019;

(c) further witness statement of Ms Maree Gunner dated 19 July 2019; and

(d) witness statement of Mr Joshua James Cullinan dated 19 July 2019.

Relevant provisions of the Act regarding approval of an enterprise agreement (other than BOOT)

[32] Section 180 of the Act prescribes the steps an employer must take before requesting employees vote approve a proposed enterprise agreement:

“180. Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).

Employees must be given copy of disclosure documents etc.

(4A) If an organisation gives the employer a document under section 179 by the end of the fourth day of the access period for the agreement, the employer must take all reasonable steps to ensure that the relevant employees:

(a) are given a copy of the document as soon as practicable after it was given to the employer; or

(b) are given access to a copy of the document as soon as practicable after it was given to the employer and have access to that copy throughout the remainder of the access period for the agreement.

Note: This subsection is a civil remedy provision (see Part 4-1).

(4B) If the employer is required to prepare a document under section 179A, the employer must take all reasonable steps to ensure that the relevant employees:

(a) are given a copy of the document by the end of the fourth day of the access period for the agreement; or

(b) are given access to a copy of the document by the end of that fourth day and have access to that copy throughout the remainder of the access period for the agreement.

Note: This subsection is a civil remedy provision (see Part 4-1).

(4C) The employer must not knowingly or recklessly make a false or misleading representation in the document that the relevant employees are given a copy of or access to under subsection (4B).

Note: This subsection is a civil remedy provision (see Part 4-1).

Terms of the agreement must be explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

(c) employees who did not have a bargaining representative for the agreement”.

[33] Section 186 of the Act provides the general requirements that need to be met for the Commission to approve an enterprise agreement:

“186. When the FWC must approve an enterprise agreement--general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement--the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

Requirement that the group of employees covered by the agreement is fairly chosen

(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms

(4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms

(4A) The FWC must be satisfied that the agreement does not include any designated outworker terms.

Requirement for a nominal expiry date etc.

(5) The FWC must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.

Requirement for a term about settling disputes

(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

Note 2: However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4)”.

[34] Section 187 of the Act sets out additional requirements that must be met for the Commission to approve an enterprise agreement:

“187. When the FWC must approve an enterprise agreement--additional requirements

Additional requirements

(1) This section sets out additional requirements that must be met before the FWC approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.

(2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.

Requirement relating to notice of variation of agreement

(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), the FWC must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).

Requirements relating to particular kinds of employees

(4) The FWC must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.

Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.

Requirements relating to greenfields agreements

(5) If the agreement is a greenfields agreement, the FWC must be satisfied that:

(a) the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and

(b) it is in the public interest to approve the agreement.

(6) If an agreement is made under subsection 182(4) (which deals with a single-enterprise agreement that is a greenfields agreement), the FWC must be satisfied that the agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work.

Note: In considering the prevailing pay and conditions within the relevant industry for equivalent work, the FWC may have regard to the prevailing pay and conditions in the relevant geographical area”.

[35] Section 188 of the Act expands upon the meaning of “genuinely agreed”:

“188. When employees have genuinely agreed to an enterprise agreement

(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174”.

Case law on legislative requirements (other than BOOT)

[36] In Newlands Coal Pty Ltd v CFMEU, 5 the Full Bench of (then) Fair Work Australia summarised the Commission’s role in determining whether an enterprise agreement should be approved as follows:

“[33] FWA does not have a general discretion under the Act to determine whether an enterprise agreement should be approved. Rather, s.186 imposes an obligation on the tribunal to approve an agreement if a valid application for approval of the agreement is made under s.185 and the requirements of ss.186 and 187 are met.

[34] Broadly, the directions of s.187 involve examining the steps followed in the making of the agreement and the lodging of the application. Section 186 broadly involves the content of the agreement. Essentially, the role is one of examining whether the procedures followed leading up to the agreement being made were in accordance with what the Act requires and whether the content of the agreement satisfies certain conditions that the Act imposes.

[35] There is also a requirement for FWA to consider whether the agreement contains unlawful matters. What is an unlawful matter is defined by s.194. Additionally, and despite the requirements of s.186, Fair Work Australia may refuse to approve an agreement if a term of the agreement would mean compliance with that term would involve a breach of a Commonwealth law (s.192). There is no general role for the Tribunal to examine the validity of provisions in the agreement.

[36] The tribunal has no general nor specific power to rectify matters in the agreement if the terms of the agreement do not meet the requirements of the Act. The tribunal can accept undertakings but those undertakings can only be accepted if they are regarding concerns over the meeting of the requirements of s.186 and s.187.

[37] In summary, the role of FWA is to decide on whether the prescribed rules for conduct and procedures have been followed in the making of the agreement and if an agreement is made did the parties agree to things which an agreement can be about and are the terms agreed sufficient to satisfy the tests set out in the Act”.

[37] The Commission must approve a proposed enterprise agreement if it is satisfied that each of the requirements set out in s.186 and s.187 of the Act are met. If the Commission has a concern that the agreement does not meet those requirements, it may exercise its discretion to approve the agreement if it is satisfied that an undertaking meets the particular concern/s. 6

[38] Section 340(2) of the (now repealed) Workplace Relations Act 1996 required an employer to provide employees, prior to voting on whether or not to approve a collective agreement, a “reasonable opportunity to decide” as to whether they want to approve the agreement. In Blue Star Pacific Pty Ltd v CEPU, 7 Gray J spoke to the meaning of the term “reasonable” (albeit it in a different statutory context):

“[22] [T]he search must be for what is "reasonable". What will be reasonable will depend upon the circumstances of the particular case. There can be no absolute rules about what will and what will not constitute the prohibitions on the conduct of an employer, or what will constitute the employer’s obligations. Any decision on the facts of another case cannot be converted to a rule applicable to the instant case. Each case must be determined on all of the relevant facts, rather than on a selection of particular facts in isolation from the others. Further, it would be wrong to examine each fact alleged to detract from the reasonableness of the opportunity in isolation from each other such fact, and in isolation from all of the facts that may tend in the other direction. The determination of the question whether there has been a reasonable opportunity given involves a holistic process.

[23] Thus, the primary judge was correct to hold that s 340(2)(a) imposes an obligation on the employer to give the employees the reasonable opportunity for which s.340(2)(a) provides. His Honour was also correct to take the view that the reasonable opportunity had to be given to all of the relevant employees as a group. His Honour’s view that the words "to decide" should be construed to mean something like to engage in the decision-making process also appears to be correct. It does not follow, however, that there is a universal, or even a general, requirement to conduct a meeting. Whether a meeting would be an element of the provision of a reasonable opportunity must depend on the facts of each case. Similarly, the provision by the employer of misleading information about the agreement cannot lead to the automatic conclusion that there has not been a reasonable opportunity. The incorrect information must always be considered in the light of all other matters”.

(my emphasis)

[39] In MUA v Northern Stevedoring Services Pty Ltd, 8 the Full Bench discussed the construction of the expression “all reasonable steps” in the following manner:

“[33] The expression “all reasonable steps”, and the case authorities concerning that and similar expressions were discussed at length in the decision of the Industrial Relations Commission of NSW in Court Session Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales. The following propositions may be derived from the Court’s analysis:

•  reasonable steps are what a reasonable man or woman would regard as being reasonable steps in the circumstances which apply;

•  the obligation to take “reasonable steps” depends on the particular circumstances existing at the time the obligation arises; and

•  a requirement to take all reasonable steps does not extend to all steps that are reasonably open in some narrow or theoretical sense (such as, for example, matters not directly within the particular knowledge or experience of a relevant party).

[34] Additionally in Parland Pty Ltd & Ors v Mariposa Pty Ltd the Tasmanian Supreme Court said, in relation to a requirement for a party to use its best endeavours to achieve a particular object, that a failure to take a particular step had to be assessed by reference to its materiality to the failure to achieve the relevant object. The Court said:

‘In any event quite apart from authority it would seem to me to be an untenable proposition that a party could be held to have failed to satisfy a condition requiring it to use its best endeavours in relation to an application because it failed to take some particular step if in fact the application would have been unsuccessful even had that step been taken.’

[35] That proposition appears to us to be equally applicable to consideration of whether an obligation to take all reasonable steps has been complied with”.

[40] In the Federal Court decision in CFMEU v One Key Workforce Pty Ltd, 9 Flick J stated that the nature of the task of the Commission under s.180(5) of the Act, and other terms requiring its satisfaction or otherwise about a state of affairs, is to make a broadly-based value judgment.10

[41] Justice Flick said that in respect of the requirements established by s.180(5) of the Act:

“[103] …The requirement imposed by s.180(5) to ‘take all reasonable steps to ensure that…the terms of the agreement and the effect of those terms, are explained’ is an important obligation imposed upon an employer to ensure that employees are as fully informed as practicable. The requirement is not a mere formality. Whatever steps may be necessary will depend upon the facts and circumstances of each particular case: but those steps are not satisfied by a person reading – without explanation – the terms of an agreement to an employee”. 11

[42] In One Key Workforce Pty Ltd v CFMEU (One Key), 12 the Full Court made it readily apparent that compliance with s.180(5) and s.188 of the Act are not matters of jurisdictional fact for the purposes of the exercise of the Commission’s enterprise agreement approval powers.13 In other words, relevant facts only need to be established to reach the relevant satisfaction of the Commission member. As long as relevant facts are available to support the opinion or satisfaction required to be reached by a relevant member of the Commission (as decision-maker), such opinion or satisfaction is not open to collateral attack on the basis that the objective existence of the facts required by s.180(5) or s.188 cannot be established.14 As the Full Court in One Key stated:

“[106] ….. Parliament should be presumed not to have intended public inconvenience of the kind that would arise if the existence of the pre-approval requirements the subject of the satisfaction that the Commission is required to form in order to approve an agreement was a jurisdictional fact amenable to authoritative determination by a court: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [97]”.

[43] The Full Court in One Key went on to hold that a condition precedent to the exercise by the Commission of its jurisdiction under s.186 of the Act to approve an enterprise agreement was its satisfaction that the employer had complied, amongst other things, with s.180(5) of the Act. The Full Court held that satisfaction as to whether s.180(5) had been complied with involved an evaluative judgment as to whether “reasonable steps” were taken by the employer, and on the issues of compliance with s.180(5), and the requirement for “genuine” agreement, stated:

“[105] Furthermore, like many of the pre-approval requirements, satisfaction as to whether s 180(5) has been complied with involves an evaluative judgment, including because an assessment is to be made as to whether “reasonable steps” were taken by the employer. As Bromberg J said in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2; (2016) 259 IR 164 at [75], in a passage cited by the primary judge at [119]:

‘These are difficult questions, upon which reasonable minds might sometimes (perhaps often) differ. The legislature’s intent was evidently that they be dealt with — for the benefit of employees and employers both — by independent specialists and experts, through the process of Commission scrutiny. ...

…

[112] It is common ground that the Commission was never told what was said to the relevant employees. It was simply told that they had been given an explanation of the terms of the Agreement and the effect of those terms. In effect, this amounted to little more than a self-serving statement that the employer had complied with its obligation under the Act. OKW contended that the fact that it made such a statement in a statutory declaration was significant. It is not. As the CFMEU argued, whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form. The recital of a conclusion on the very question the Commission was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the statutory test. In other words, a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction. OKW submitted that if the Commission had erred in this respect, it was an error in fact finding or an error in process, which would be an error within its jurisdiction. We reject this submission. In order to reach the requisite state of satisfaction that s 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–44 (Mason J).

[113] A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction. Put differently, without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement.

[114] The following considerations point inexorably to that conclusion.

[115] The Commission was required to be satisfied that OKW had taken “all reasonable steps to ensure” that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether “genuine” agreement had been obtained from them. The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.

[116] In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were “all reasonable steps” unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?

…

[141] Turning then to the language utilised in ss 186(2)(a) and 188(c), the word “genuinely” in the phrase “genuinely agreed”, indicates that mere agreement will not suffice and that consent of a higher quality is required. We reject OKW’s contention that the phrase is only directed at requiring an absence of fraud, coercion or duress in the process of employees providing their agreement. The word “agreed” on its own, suffices to achieve those ends. The word “genuinely” must be given some additional work to do. A court construing a statutory provision must strive to give meaning to every word of it: Project Blue Sky at [71]. The limits OKW seeks to put on para 188(c) are too narrow. The requirement for genuine agreement in the Fair Work Act prescribes some, but not all, factors that must be taken into account. In this respect, in contrast to its predecessor, s 170LT(6) of the Workplace Relations Act, paras 188(a) and (b) direct the Commission’s attention to a number of discrete matters. Paragraph 188(c), however, it is not at all prescriptive.

[142] Paragraph 188(c) is cast in very broad terms. It is intended to pick up anything not caught by paras (a) and (b). Thus, any circumstance which could logically bear on the question of whether the agreement of the relevant employees was genuine would be relevant. One obvious example is the provision of misleading information or an absence of full disclosure (see, for example, Re Toys “R” Us (Australia) Pty Limited Enterprise Flexibility Agreement 1994 (1995) 37 AILR 3-068 (Print L9066) (C No 23663 of 1994)). Another is the likelihood that the relevant employees understood the operation of the various awards that would be affected by the agreement and the extent to which the wages and working conditions for employees under each of those awards would change, for better or worse, under the terms of the agreement. Thus, if we be wrong to conclude that the Commission is bound by s 180(5) to consider the content of the employer’s explanation of the terms of the Agreement and their effect, in order to be satisfied that the Agreement was “genuinely agreed to” having regard to s 188(a)(i), then for similar reasons we would hold that this was a matter which was not only relevant to the question raised by para 188(c), but was a mandatory consideration”.

[44] On the issue of the classification coverage of employees’ voting, the Full Court in One Key stated:

“[155] Where employees working in few occupational classifications consent to an agreement which covers numerous other occupations or other occupations in many industries beyond their own, an explanation of the terms of the agreement and their effect may fall short of providing an adequate basis for the formation of genuine consent. The employees who voted may be indifferent to the impact of an agreement on other employees or prospective employees in occupational classifications outside their own training or experience. As Buchanan J observed in John Holland (Besanko and Barker JJ agreeing), in those circumstances the employees will presumably act out of self-interest (at [33]) with the possible result that “it may not be fair for an enterprise agreement made with three existing employees to cover a wide range of other classifications and jobs in which they may have no conceivable interest” (at [83]).

[156] Therein lies the concern. The legislative objective of achieving “fairness through an emphasis on enterprise-level collective bargaining” could be undermined if the employees who vote on the agreement have no basis for appreciating its nature and terms. What is required by s 186(2)(a) is genuine agreement. To construe that requirement as mandating an informed and genuine understanding of what is being approved is consistent with the text of the provision (as defined) and accords with its underlying purpose.

[157] Ordinarily, non-greenfields agreements are made with the participation of the employees who are representative of the range of employee classifications covered by the enterprise agreement. The capacity to provide consent based upon a true understanding of the consequences of the proposed agreement across the breadth of classifications covered is likely to be adequate, including because representatives of each classification or classificational grouping will be involved. While it is correct to say, as OKW submitted, that the group of employees who vote are not required by the Fair Work Act to be representatives for, or agents of, the wider group of employees who may ultimately be covered by the agreement, the fact that the group does not broadly reflect the occupational scope of the proposed agreement restricts the terms and conditions in the agreement for which the group can genuinely speak”.

[45] Ultimately, the Full Court in One Key concluded:

“[172] Nevertheless, the primary judge was correct to find that the Commissioner fell into jurisdictional error by failing to have regard to the content and terms of the explanation OKW purportedly provided the employees before they cast their votes. In addition, the Commissioner’s decision was affected by jurisdictional error because he failed to appreciate that, in determining whether the relevant employees had genuinely agreed to the Agreement he needed to consider whether they were likely to have understood its terms and effect”.

[46] I have regard to and apply all the above case law in this decision.

RAFFWU ‘job security’ objections

[47] Clause 7.11 of the 2012 Agreement reads:

“7.11 Security of Employment

During the period of operation of this agreement, no existing full time or part time employee shall be forcibly made redundant. This provision shall not apply to stores in geographically isolated "areas".

Where stores in geographically isolated areas are closed during the life of this agreement and an employee indicates a preparedness to re-locate to a town or city where another BIG W Store operates, the Company will provide employment of similar status, hours and remuneration to that employee.

Should an employee transfer in circumstances as indicated above they shall retain continuity of employment for all purposes.

This provision will not prevent the Company from terminating employees through poor performance or misconduct.”

[48] This clause was not replicated in the Agreement.

[49] I observe that Clause 7.11 of the 2012 Agreement applies to “forced” redundancies, not voluntary redundancies. Further, it does not apply to stores in geographically isolated areas (i.e. outside capital cities or large regional cities). 15

[50] In relation to clause 7.11, RAFFWU submits:

(a) the removal of clause 7.11 of the Agreement was not adequately explained to relevant employees, nor was the effect of its removal. More specifically, it was not explained to relevant employees that the effect of the removal of clause 7.11 was to “displace workplace rights to job security including no forced redundancies except in geographical areas”;

(b) further to (a), it was not disclosed to relevant employees, prior to the Agreement being made, that likely or already identified store closures were pending, further compounding the effect of the removal of clause 7.11 of the Agreement;

(c) the SDA, despite being invited to, and attending, employee briefing sessions concerning the explanation of the Agreement, failed to disclose to its members (and relevant employees) in attendance that clause 7.11 was removed from the Agreement; and

(d) the SDA was acting for, and in concert with, Big W in failing to identify or adequately explain the removal of clause 7.11 of the Agreement. 16

[51] The foregoing items (c) and (d) can be rejected in very short order.

[52] In relation to item (c), the evidence clearly identifies that the SDA did explain to its members (at employee briefing sessions conducted in conjunction with Big W’s store management, and by way of SDA information flyers) that clause 7.11 of the 2012 Agreement was being removed from the Agreement, in exchange for significantly increased redundancy benefits under the Agreement. 17

[53] In relation to item (d), there is no evidence whatsoever that the SDA (subjectively or objectively) was acting in concert with Big W (for example, via some form of purported collusion or conspiracy, to not identify or adequately explain the removal of clause 7.11 from the Agreement). This is a serious allegation, and very much needs unambiguous and highly probative evidence of its occurrence to be entertained.

RAFFWU ‘roster change’ objections

[54] RAFFWU further submitted that relevant employees were not advised, until after the voting ballot to approve the Agreement had occurred, that roster changes (permitted by the 2012 Agreement) were to be given effect. According to RAFFWU, this was a material nondisclosure that would have affected employee voting preferences, meaning that the Agreement was not genuinely agreed. The gravamen of RAFFWU’s submissions on this issue is that the roster changes made under the 2012 Agreement had the effect of reducing or otherwise nullifying the better shift penalties that were to apply under the Agreement once it came into operation (i.e the giving with one hand, and the taking with the other). According to RAFFWU, Big W always had a secret plan to do this, which it did not disclose to relevant employees until after voting had concluded. Relevant employees were therefore deceived by Big W, would not have voted to approve the Agreement, and did not genuinely agree to approve the Agreement.

RAFFWU evidence

[55] In support of the foregoing submissions, Mr Cullinan relied upon his own witness statement, 18 and two witness statements of Ms Maree Gunner.19

[56] Mr Cullinan’s evidence 20 identifies that he was involved in various meetings and related exchanges with management representatives of Big W during bargaining. However, Mr Cullinan’s evidence contains many statements of opinion and hearsay that I am unable to give any weight to. Further, many of the statements made by Mr Cullinan are not supported by objective documentary evidence. There are also significant issues as to the relevance of much of Mr Cullinan’s statement in that it sets out his recollection of what he considers to be his concerns with the bargaining process and the way that he, on behalf of RAFFWU, was treated during that bargaining process.

[57] It is not entirely clear who Mr Cullinan, or RAFFWU, specifically represented during bargaining. Including Ms Gunner, Mr Cullinan simply refers to six “RAFFWU members”, and does not otherwise identify any other information about such members.

[58] Ms Gunner’s evidence in-chief is that:

(a) she was not told about the removal of clause 7.11 of the Agreement;

(b) she did not understand what the removal of clause 7.11 from the Agreement meant;

(c) when she asked an SDA Officer at an employee information briefing session “what are we giving up [in the general sense]”, the SDA Officer was unable to answer the question;

(d) there was no mention (by anyone) of planned roster changes during the briefing sessions or otherwise;

(e) she was required to change her roster after the vote on the Agreement had closed; and

(f) she “believed” that “nightfill workers” who voted to approve the Agreement would not have done so if they had been aware of the removal of clause 7.11 and the pending roster changes. 21

[59] In her statement in-reply, Ms Gunner reiterated her evidence in-chief, and gave some more specific examples as to the effects that the roster changes had had on her personally. 22

Big W’s evidence

[60] Ms Johnson’s evidence in relation to bargaining, the explanation provided to relevant employees, and the removal of clause 7.11 from the Agreement, was as follows:

(a) of the six store closures between January 2017 and January 2019, many employees accepted voluntary redundancy or redeployment (post relevant consultation with management). No relevant employees were forcibly made redundant during this time (i.e. as required by clause 7.11 of the 2012 Agreement); 23

(b) there have never been any disputes in relation to clause 7.11 of the 2012 Agreement; 24

(c) the non-replication of clause 7.11 in the Agreement arose, and was agreed to, during bargaining between the SDA and the AWU. In return for its removal, the SDA and AWU sought increased redundancy benefits under the Agreement. These increased redundancy benefits were ultimately agreed to by Big W. 25 Significantly, the increased redundancy benefits will apply to both voluntary and forced redundancies, and absent any geographical restrictions;

(d) the removal of clause 7.11 from the Agreement is reflected in various draft versions of the Agreement exchanged between Big W, the SDA and the AWU (i.e. via coloured and highlighted mark-ups and strikethroughs to the 2012 Agreement); 26

(e) the draft versions of the Agreement (with clause 7.11 highlighted in strikethrough) were provided to RAFFWU via email in August 2018 and October 2018. A further draft of the Agreement, with clause 7.11 deleted, was provided to RAFFWU in December 2018; 27

(f) during bargaining meetings between Big W and RAFFWU in September, October and November 2018, and January 2019, RAFFWU did not raise the removal of clause 7.11 from the Agreement; 28

(g) prior to the Agreement being made, RAFFWU did not raise the removal of clause 7.11 from the Agreement with Big W;

(h) despite a very broad log of (ambit) claims, RAFFWU’s main concerns during bargaining centred around union right’s in the workplace. Indeed, during the bargaining meeting on 23 January 2019, Ms Johnson states:

“Mr Cullinan did not provide any specific feedback on the [final draft] proposed agreement and did not present any further claims during the meeting on 23 January 2019. Mr Cullinan did not raise any issue of the removal of the security of employment clause [7.11]”; 29

(i) various information sessions were held with relevant employees in-store (documentary records were taken of these sessions). One-on-one sessions were also available for employees to attend; 30

(j) relevant information was distributed to management employees so that there was consistency between information sessions (conducted by such management employees) across Big W stores. There were also google hangout sessions with management and 2ICs to explain to them what was required of them in conducting the information sessions (as to format, structure and content); 31

(k) most (if not all) of the employee information sessions with relevant employees were conducted in the presence of the SDA or the AWU; 32

(l) summary information documents were prepared by Big W, the SDA and the AWU. These summary documents were distributed to all employees, and identified that clause 7.11 of the 2012 Agreement was being removed, and that increased redundancy benefits would be payable under the Agreement. 33 Having reviewed these various summary documents, I consider them to be in an easy to read and understand plain English form;

(m) Big W set up a dedicated website and online portal, and a dedicated email address, for relevant employees to access information on bargaining and the Agreement (including copies of all relevant documents), and for employees to ask questions and give feedback; 34 and

(n) Big W’s Culture and People Team visited stores across Australia to brief and update management representatives on the progress of the Agreement (i.e. so that such management representatives could be aware of, and inform relevant employees on, such progress). 35

[61] In relation to the allegation by RAFFWU that Big W failed to disclose to relevant employees, until just after the Agreement had been made, that around 30 Big W stores were to be closed over the next three years, the evidence of Mr Storrie is that:

(a) a Big W store network review (Review) was initiated in January 2019 (on a commercially sensitive and strictly confidential basis). It was publicly announced on 20 February 2019, including to relevant employees (being 26 days prior to the Agreement being made). 36

(b) the Review was wide ranging, with no outcomes identified in advance. Any outcomes or decisions would need to be approved by the Woolworths Group Limited Board; 37

(c) the Review concerned not only Big W stores, but its distribution centres (the latter not covered by the Agreement); 38

(d) Mr Storrie, who was requested to conduct the Review in January 2019, had no knowledge of the enterprise agreement bargaining process (at Big W stores) that had been on-going since May 2018. He was never involved in the Big W stores bargaining process. Rather, he worked in the Woolworths Group’s “portfolio business”. 39

(e) in mid-February 2019 it became apparent to Mr Storrie that the Review might take four-to-six weeks to complete; 40

(f) the finalisation of the Review, and the decision to implement some of its outcomes, did not occur until 1 April 2019; 41

(g) as at 19 June 2019, there had still been no announcement as to which Big W stores are closing, or under consideration for closure (i.e. final determinations in this regard, flowing from the Review, have still not been made). Any such determinations will depend upon a variety of factors, including negotiations with existing landlords; 42 and

(h) relevant employees, at relevant Big W stores, will be consulted, in accordance with the requirements for major change consultations under the Agreement, when any definite decision concerning a Big W store closure is made. 43

Cross-examination of Ms Johnson

[62] Ms Johnson was cross-examined extensively by Mr Cullinan. However, much of that cross-examination was not to the point in that it did not go to the contentions being advanced by RAFFWU in these proceedings. My impression of the cross-examination overall is that it was very much focused upon a broad ranging inquiry into the conduct of the SDA during bargaining, and during employee information briefing sessions. Ms Johnson impressed me as a witness. She was honest and impartial in her answers. None of the cross-examination of Ms Johnson has caused me to doubt her evidence, from a factual or credibility perspective.

Cross-examination of Mr Storrie

[63] Ms Storrie was cross-examined extensively by Mr Cullinan. None of that cross-examination undermined or identified any inconsistencies in Mr Storrie’s evidence. Mr Storrie gave his evidence in a candid and straightforward manner. None of the cross-examination of Mr Storrie has caused me to doubt his evidence, from a factual or credibility perspective.

Closing oral submissions (RAFFWU)

[64] In closing oral submissions, Mr Cullinan (for RAFFWU) emphasized the following points (in summary):

(a) Big W was entirely aware of the issues that were about to be implemented in its “Customer-Led Rostering” (CLR) program and it deliberately chose to delay announcing same to staff until after the vote had been declared.  44 To that end, relevant employees were “fooled” into voting in favour of the Agreement by a multibillion dollar company who held out the promise of penalty rates long denied to its workers, while secretly and cunningly planning to change employee hours (rosters) so that employees would in fact never obtain those benefits under terms of the new Agreement.45

(b) The Commission can make a “Jones v Dunkel” 46 inference that the witnesses who were not called to give evidence, and the documents that Big W did not produce, including as sought by RAFFWU in its F52 applications, would not have assisted Big W in these proceedings.47 For example:

(i) Mr Banducci was the person responsible for the oversight of Woolworths Group, and was responsible for recommending operational changes. He was not called to give evidence to refute RAFFWU’s allegations;

(ii) Mr Holmes-Brown was the person who had oversight of the CLR program, but he was also not called to give evidence to refute RAFFWU’s allegations; 48 and

(iii) Big W failed to produce evidence of the video recording (concerning the Review) that was allegedly played to employees. 49

(c) The term of the 2012 Agreement (clause 7.11) relating to job security and no forced redundancy is a substantial term. It is a fundamental right. It's an ordinary and well understood term, and is a term that is of substantial importance to employees. However, despite the importance of the term, there was no explanation of the effect of the displacement of that term in the Agreement. 50

Closing oral submissions (Big W)

[65] In closing oral submissions, Mr Gotting (for Big W) made the following points (in summary):

(a) All reasonable steps were taken by Big W to the explain the terms of the Agreement, and the effect of those terms, to relevant employees. The evidence identifies that Big W engaged in multiple ways and on multiple levels via an extensive process to provide relevant employees with a thorough explanation of the terms, and the effect of the terms, of the Agreement. 51 Such explanation included the fact that the terms of clause 7.11 (of the 2012 Agreement) were being removed from the Agreement, and that employees would receive broader and more substantial redundancy benefits under the Agreement.52

(b) The evidence highlights that employees were informed (on 20 February 2019) that Big W was undertaking a review of its operations, and that may end up meaning some stores may close. 53

(c) Objectively, the failure to replicate clause 7.11 in the Agreement was not a significant or material change that required more explanation than was actually provided to relevant employees. Many Big W employees did not qualify for no forced redundancy under the clause. 54

(d) There was no “secret plan”, and there is no evidence of a “secret plan” regarding the CLR program. What is significant is that the roster changes were permitted under the 2012 Agreement, and the changes that occurred in March and April 2019 were made under the 2012 Agreement. 55 The Commission ought attach no weight to the non-specific hearsay evidence of unidentified persons in unidentified circumstances with unidentified knowledge and unidentified information about the CLR program and the roster changes.56

(e) The Commission ought to attach no weight to RAFFWU’s speculative submissions that are not supported by the evidence. The Commission should also reject the submission raised by RAFFWU that there was a lack of genuine agreement based upon an alleged failure to disclose a secret plan to implement roster changes. 57

(f) RAFFWU’s submissions that the principles arising from the case of “Jones v Dunkel” have application in these proceedings are misplaced and wrong. In this regard, the inferences that RAFFWU asks the Commission to draw simply cannot be drawn as a matter of law. 58

Closing oral submissions (SDA)

[66] In closing oral submissions, Mr Friend QC (for the SDA) made the following points (in summary):

(a) Six employees appointed RAFFWU as their bargaining representative. By way of RAFFWU’s Form F18A, some or all of these six people apparently do not support the approval of the Agreement. Only Ms Garner put on a statement. None of the six employees, including Ms Garner, have outright and expressly stated that they do not support the approval of the Agreement. The only evidence to that effect is Mr Cullinan's statutory declaration, and his general assertion (submission) that some or all of the six employees do not support its approval. 59

(b) Regarding the Job Security clause (clause 7.11), Big W adequately explained to relevant employees the failure to replicate that term in the Agreement. Even presuming that some employees might have missed out on that explanation, it does not follow that any noncompliance with ss 180(5) or 188 of the Act occurred. All reasonable steps were taken. 60

(c) Regarding the alleged failure to disclose store closures and roster changes until after voting had closed, these allegations not supported by the evidence and therefore must be rejected. Significantly, there is no evidence whatsoever that supports RAFFWU’s contention that employees who voted to approve the Agreement were in any way affected by these matters, let alone to the degree urged by RAFFWU. 61

Rejection of RAFFWU ‘job security’ objections

[67] Having regard to the evidence, I reject the job security objections advanced by RAFFWU in these proceedings for the following reasons:

(a) The evidence is that it was explained to relevant employees at information sessions attended by relevant employees, and as part of summary documents issued to relevant employees, that clause 7.11 of the 2012 Agreement was being removed from the Agreement.

(b) The evidence is that its removal was negotiated between Big W, the SDA, and the AWU as a trade-off for significantly increased redundancy benefits under the Agreement (applying to both voluntary and forced redundancies).

(c) The evidence is that the SDA, the AWU and RAFFWU were provided with various drafts of the Agreement clearly identifying the removal of clause 7.11 from the Agreement.

(d) There is no evidence that RAFFWU did not have every opportunity to update or provide copies of the draft Agreement (identifying the removal of 7.11 of the Agreement) to relevant employees to whom it was bargaining on behalf of. Significantly, there is no evidence that it did so.

(e) The evidence is that RAFFWU was a player, but not a significant player, in terms of the bargaining of the Agreement, and its outcomes. In this regard, RAFFWU raised no objection to the removal of clause 7.11 from the Agreement. RAFFWU’s assertion that one of its claims in respect of the Agreement was for no reductions in any terms and conditions under the 2012 Agreement simply cannot be translated into a direct objection as to the removal clause 7.11 of the Agreement during the bargaining process. 62

(f) The evidence of Ms Gunner, that she was not advised by Big W as to the removal of clause 7.11 of the Agreement, is contrary to the content of the summary documents issued to all employees. 63 Further, even if Ms Gunner’s evidence is to be accepted, almost 92 percent of employees voted in favour of approving the Agreement. There is no evidence that Ms Gunner cast a vote in support of the approval of the Agreement. To the extent that Ms Gunner gives evidence as to the voting intentions of night-fill workers, such evidence is hearsay and opinion. It cannot be relied upon, let alone given any weight.

(g) The allegation that employees were deceived in relation to the Review or its outcomes is not available on the evidence. The Managing Director of Big W, Mr David Walker, advised employees of the Review in February 2019, prior to the access period for the Agreement commencing. This evidence was uncontested. I also note that Ms Gunner’s work location in the Layby Department is next to a television that was playing a video on-loop of Mr Walker’s announcement to employees of the Review (for around three weeks from 20 February 2019). 64

(h) RAFFWU’s assertions as to the application of the rule in Jones v Dunkel are misplaced and wholly unsustainable. Firstly, the failure of a party to call a witness or produce documents ‘may’, not ‘must’, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted a party’s case. Secondly, the rule cannot be used to convert conjecture, speculation and suspicion into inference. 65 Thirdly, the rule only applies where a party is “required to explain or contradict” something arising on the evidence which requires an answer.66 RAFFWU’s assertions as to the application of the rule satisfy none of the foregoing. Further, it is also important to highlight that the rule in Jones v Dunkel must be considered in light of the Commission’s statutory role in approving enterprise agreements. That role being neither adversarial nor arbitral. Instead, the nature and scope of the Commission’s ‘inquiry’ as to whether or not it ought approve an enterprise agreement is administrative. It follows that it is for the Commission to reach its own state of satisfaction as to the approval of an enterprise agreement, which would rarely require it to resolve arguments concerning inferences to be drawn under the rule in Jones v Dunkel.

[68] All in all, in view of the evidence, and my reasons set out above, there is no foundation for any finding to be made by me as to the RAFFWU job security objection, including to the extent that it gives rise to any absence of satisfaction by me resulting in non-compliance with s.180(5) or s.188 of the Act.

Rejection of RAFFWU ‘roster change’ objections

[69] RAFFWU alleges that the Agreement was not genuinely agreed because Big W failed to disclose to relevant employees, prior to the Agreement being made, that roster changes were to be initiated. I reject this allegation for the following reasons:

(a) This is not an objection in relation to the explanation of the terms of the Agreement, or the effect of those terms.

(b) The roster changes that were made were made pursuant to the terms of the 2012 Agreement. There is no suggestion by RAFFWU that these roster changes, or the method of their implementation, were in breach of the terms of the 2012 Agreement at the time they were initiated or implemented.

(c) The CLR program that led to the roster changes in March/April 2019, has been on-going since March 2018. It has been rolled out in phases in March 2018, May to June 2018, and August and September 2018. In January 2019, a further phase of CLR was developed by Big W stores. Managers were briefed on this further CLR phase in March 2019, and it was implemented in March/April 2019. Its purpose was not to reduce overtime or penalty rates, but to align employee rosters with the times that customers were more likely to shop. 67

(d) The only evidence from RAFFWU concerning the roster changes is from Ms Gunner, who is not directly affected by the roster changes. 68 Her evidence thus takes RAFFWU’s allegations nowhere.

(e) There is no evidence that Big W intentionally negotiated the Agreement to include superior shift and penalty rates, and then used the roster change provisions under the 2012 Agreement for the purposes of reducing or nullifying (into the future) the superior shift and penalty rates under the Agreement. The RAFFWU submissions on this issue are no more than speculation and conjecture. They are contrary to the evidence of Ms Johnson and Mr Storrie. Big W is not to be criticised for introducing roster changes that it was legally entitled to make under the 2012 Agreement. The evidence is that Big W determined that it needed to make those roster changes on or about 1 April 2019 (after deliberations occurring in the months prior). The practical effect of RAFFWU’s submissions appear to be that because the Agreement had been voted on (and approved by a valid majority of employees), Big W was no longer permitted to apply the terms of the 2012 Agreement to the extent that the application of those terms might be detrimental to employees when the Agreement came into operation. On the evidence, and as a matter of law, the RAFFWU assertion in this regard is wholly without foundation.

[70] In view of the evidence, and my reasons set out above, I do not accept RAFFWU’s allegation that the roster changes (implemented in late March / early April 2019) were not disclosed to relevant employees (prior to the Agreement being made) so as to intentionally withhold such information from relevant employees, deceive relevant employees, or otherwise influence the voting preference of relevant employees. To be clear, I dismiss the RAFFWU assertion that a finding as to an absence of genuine agreement under s.188 of the Act ought to be made in relation to the roster changes implemented in March / April 2019.

Conclusion

[71] Having regard to my reasons set out above, I reject all of RAFFWU’s objections to the approval of the Agreement.

[72] As previously stated in my decision in [2019] FWCA 6474 approving the Agreement, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act, as are relevant to this application for the approval of an enterprise agreement, have been met.

DEPUTY PRESIDENT

Appearances:

Mr A Gotting (of Counsel), instructed by Ashurst Lawyers, appeared on behalf of Big W.

Mr W Friend (of Queen’s Counsel), instructed by A J Macken & Company Lawyers, appeared on behalf of the SDA.

Mr J Cullinan and M Cornthwaite appeared on behalf of RAFFWU.

Hearing details:

Hearings were conducted in Sydney on 16 and 17 September 2019.

Printed by authority of the Commonwealth Government Printer

<AE505337 PR718068 >

 1   [2019] FWCA 6474.

 2   Transcript, 9 August 2019 at PN142 to PN143.

 3 F17, Item 2.10.

 4 F17, Item 4.3.

 5   [2010] FWAFB 7401.

 6   Fair Work Act 2009, s.190.

 7 (2009) 181 FCR 416; (2009) 191 IR 323; [2009] FCAFC 187.

 8   [2016] FWCFB 1926, citing Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales [2004] NSWIRC 222; 137 IR 176 at [67]-[71]; and Parland Pty Ltd & Ors v Mariposa Pty Ltd [1995] TASSC 91; (1995) 5 TASR 121 at 133.

 9 (2017) 270 IR 410; [2017] FCA 1266.

 10   Ibid at [43] to [44], citing Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2015) 228 FCR 297; 247 IR 55; [2015] FCAFC 16 (per Buchanan J).

 11 (2017) 277 IR 2; [2018] FCAFC 77.

 12 (2018) 277 IR 2; [2018] FCAFC 77.

 13   Ibid at [103] to [107].

 14   Ibid.

 15 Exhibit A1, Statement of Ms Kari Samantha Johnson, dated 19 June 2019, at [24].

 16   RAFFWU Submissions, 15 June 2019, at [3]-[11].

 17   Exhibit A1, Statement of Ms Kari Samantha Johnson, dated 19 June 2019, at [54], [58], [62]-[63].

 18   Exhibit RAFFWU 3.

 19   Exhibits RAFFWU 1 and RAFFWU 2.

 20   RAFFWU Exhibit 3.

 21   RAFFWU Exhibit 1.

 22   RAFFWU Exhibit 2.

 23   Exhibit A1, Statement of Ms Kari Samantha Johnson, dated 19 June 2019, at [25]-[36].

 24 Ibid, at [35].

 25   Ibid, at [54], [58], [62]-[63].

 26 Ibid, at [52].

 27   Ibid, at [87], [101], [103].

 28   Ibid, at [83]-[86], [90]-[101], [111]-[113].

 29 Exhibit A1, Statement of Ms Kari Samantha Johnson, dated 19 June 2019, at [113].

 30   Ibid, at [114]-[124]

 31   Ibid at [125]-[133].

 32   Ibid, at [116] and [121].

 33   See, for example, SDA flyer annexed to the SDA Written Submissions (undated).

 34   Ibid at [134]-[143].

 35   Ibid at [153]-[159].

 36   Confidential Exhibit A4, Statement of Mr Colin Grahame Storrie, 19 June 2019, at [34] and [36].

 37 Ibid, at [27].

 38 Ibid, at [21].

 39   Ibid, at [7] and [11], [52]-[54].

 40 Ibid, at [27].

 41 Ibid, at [55].

 42 Ibid, at [57].

 43   Ibid, at [56]-[58].

 44   Transcript 17 September 2019 at PN732.

 45   Transcript 17 September 2019 at PN735.

 46 (1959) 101 CLR 298.

 47   Transcript 17 September 2019 at PN734.

 48   Transcript 17 September 2019 at PN747.

 49   Transcript 17 September 2019 at PN746.

 50   Transcript 17 September 2019 at PN751 to PN753.

 51   Transcript 17 September 2019 at PN756 to PN790.

 52   Transcript 17 September 2019 at PN791 and PN828.

 53   Transcript 17 September 2019 at PN866 to PN886.

 54   Transcript 17 September 2019 at PN923.

 55   Transcript 17 September 2019 at PN942 to PN843.

 56   Transcript 17 September 2019 at PN982.

 57   Transcript 17 September 2019 at PN993.

 58   Transcript 17 September 2019 at PN998.

 59   Transcript 17 September 2019 PN1090 to PN1093.

 60   Transcript 17 September 2019 PN1094 to PN1097.

 61   Transcript 17 September 2019 PN1105 to PN1121.

 62 Exhibit A2, Statement of Ms Kari Samantha Johnson, dated 12 September 2019, at [12].

 63   See, for example, SDA flyer annexed to the SDA Written Submissions (undated).

 64 Exhibit A1, Statement of Ms Kari Samantha Johnson, dated 19 June 2019, at [183].

 65   HML v R (2008) 245 ALR 204, at [302]-[303]; Brandi v Mingot (1976) 12 ALR 551, at 559-560; c.f.Jones v Dunkel (1959) 101 CLR 298, at 320-321; Katsillis v Broken Hill Pty Co Ltd (1977) 18 ALR 181, at 197

 66   Flack v Chairperson, National Crime Authority (1997) 80 FCR 137, at 148-149; Jones v Dunkel (1959) 101 CLR 298, at 321; Nuhic v Rail and Road Excavations [1972] 1 NSWLR 2014, at 221

 67   Ibid, at [177(j)].

 68   Ibid, at [178] and [180].