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

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 1808
Decision Date: 5 MAY 2020

CaseChat Overview and Summary

Woolworths Group Limited recently faced an application in the Fair Work Commission regarding the approval of the BIG W Stores Enterprise Agreement 2019. The dispute arose as the applicant, a union representing the employees, claimed that the agreement did not comply with sections 180(5) and 188 of the Fair Work Act 2009. These sections pertain to the terms of the agreement being fair and reasonable and ensuring that it does not disadvantage any employee in comparison to others. The Commission was tasked with deciding whether the alleged non-compliance with these sections was valid.

The legal issues that the Fair Work Commission had to address included whether the enterprise agreement met the criteria of fairness and reasonableness as required by the Fair Work Act. Specifically, the Commission examined if the agreement was consistent with the provisions of sections 180(5) and 188, which focus on ensuring that employees are treated equitably. Furthermore, the Commission had to determine if there were any terms in the agreement that could be seen as disadvantaging any employee or group of employees.

In its decision, the Fair Work Commission thoroughly analysed the provisions of the BIG W Stores Enterprise Agreement 2019 and found no evidence of non-compliance with sections 180(5) and 188 of the Fair Work Act. The Commission concluded that the agreement was fair and reasonable and did not disadvantage any employee. Consequently, the application for rejection of the agreement was dismissed. The Commission approved the enterprise agreement, thereby resolving the dispute in favour of Woolworths Group Limited.

As a result of the decision, the Fair Work Commission approved the BIG W Stores Enterprise Agreement 2019, finding it to be compliant with the relevant sections of the Fair Work Act. This decision confirms the agreement as valid and enforceable, with no terms that disadvantage any employee. The outcome ensures that the enterprise agreement remains in effect, allowing Woolworths Group Limited and its employees to proceed under the terms as agreed upon.

Orders