Woolworths Group Limited and Woolworths (South Australia) Pty Limited T/A BIG W

Case •

[2024] FWCA 849

•

13 MARCH 2024

The attached document replaces the document previously issued on 13 March 2024.

  • Publication Code and Print Code added to the Decision.

  • Title of the Agreement Corrected.

Associate to Deputy President Masson

Dated 15 March 2024.

[2024] FWCA 849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise 2023 Agreement

Woolworths Group Limited and Woolworths (South Australia) Pty Limited T/A BIG W

(AG2023/5064)

BIG W STORES ENTERPRISE AGREEMENT 2023

Retail industry

DEPUTY PRESIDENT MASSON

MELBOURNE, 13 MARCH 2024

Application for approval of the BIG W Stores Enterprise Agreement 2023.

  1. An application has been made for approval of an enterprise agreement known as the BIG W Stores Enterprise Agreement 2023 (the 2023 Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Woolworths Group Limited and Woolworths (South Australia) Pty Limited T/A BIG W (BIG W). The 2023 Agreement is a single enterprise agreement.

  1. BIG W notified its intention to initiate bargaining and sent a notice of employee representational rights to employees on 27 April 2022 and the notice complied with the requirements in reg 2.05 of the Fair Work Regulations 2009 (Cth) (FW Regulations). Employees were provided with notice of the time, place, and method of voting on 9 November 2023 and were provided with access to the proposed 2023 Agreement, information and briefings about the terms and effects of the terms of the 2023 Agreement in the period from 26 October – 16 November 2023. Voting occurred in the period from 17-27 November 2023 and a majority of those who voted approved the 2023 Agreement.

  1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the 2023 Agreement of 27 April 2022, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023 apply to the present application. Further, as the 2023 Agreement was made on 27 November 2023 the better off overall test (BOOT) provisions in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

  1. BIG W filed a Form F17A declaration in support of the application for approval of the 2023 Agreement made by Christie Marie De Marchi, Workplace Relations Partner for BIG W. The declaration states that the relevant award for the purpose of the BOOT is the General Retail Industry Award 2020[1] (the Award) which is wholly excluded from application to employees covered by the 2023 Agreement by reason of clause 1.4.1 of the 2023 Agreement.

  1. The Shop Distributive and Allied Employees’ Association (SDA) and the Australian Workers Union (AWU) were bargaining representatives for the 2023 Agreement. In the Form F18 declarations provided by those two unions, both the SDA and AWU indicated that they supported approval of the 2023 Agreement and sought to be covered by it pursuant to s 201(2) of the Act. For its part, the SDA expressed the view in its Form F18 that the 2023 Agreement passed the BOOT. The Retail and Fast Food Workers’ Union Incorporated (RAFFWU Inc.), which acted as bargaining representative for 23 employees stated in its Form F18A that it did not support approval of the 2023 Agreement on a number of bases, including that the 2023 Agreement did not pass the BOOT and that it was not genuinely agreed.

  1. The application for approval of the 2023 Agreement was allocated to my Chambers on 15 December 2023. Following review of the application, initial concerns correspondence was sent to BIG W on 18 December 2023 which identified a small number of matters including the casual employee voting cohort, National Employment Standard (NES) and BOOT concerns. In responding to the matters raised, BIG W was also requested to address the matters raised by RAFFWU Inc. in their Form F18A.

  1. BIG W provided a detailed response on 22 December 2023 which satisfactorily addressed the Commission’s concerns. The BIG W response also addressed the matters raised by RAFFWU Inc. Correspondence was also received from the SDA on the same day confirming their support for the responses provided by BIG W. The AWU also sent correspondence on 22 December 2023 advising they did not object to any of BIG W’s responses. RAFFWU Inc. sent correspondence to my Chambers on 27 December 2023 advising that as no undertakings had been offered by BIG W they sought to be heard in relation to approval of the 2023 Agreement.

  1. Directions were issued on 3 January 2024 for the filing of material by the parties. Amended directions at the request of the parties were subsequently issued allowing for amended filing dates and a hearing was listed for 21 February 2024, in advance of which BIG W, the SDA, the AWU and RAFFWU Inc. each filed material in accordance with the revised directions. At the hearing on 21 February 2024, BIG W and the SDA each sought and were granted permission to be legally represented pursuant to s 596 of the Act.

  1. Apart from the matters raised by RAFFWU Inc. there are no other contested issues in respect of the approval of the 2023 Agreement. Leaving aside the matters raised by RAFFWU Inc. which are considered below, I am satisfied based on the material contained in the application and the accompanying Form F17A declaration made by Ms De Marchi that the approval requirements in ss 186 and 187 of the Act, as relevant to the application, are met.

RAFFWU Inc. objections to approval of 2023 Agreement

  1. RAFFWU Inc. objects to approval of the 2023 Agreement on two grounds. RAFFWU Inc. contends that in circumstances where the 2023 Agreement wage rates are only marginally above Award rates of pay, there is not enough evidence for the Commission to be satisfied that the 2023 Agreement passes the BOOT. In raising this ground of objection RAFFWU Inc. submits that;

(1)The classification definitions in the 2023 Agreement permit employees to work at higher skill levels across the BIG W stores but would not entitle employees in those circumstances to access a higher classification rate that they would otherwise be entitled to receive under the Award classification structure; and

(2)Clause 6.1.1 of the 2023 Agreement which sets out the span of ordinary hours provides for a broader span of hours than the Award provides for those stores that have trading hours that do not extend beyond 9.00pm Monday to Friday or beyond 6.00pm on a Saturday or Sunday.

  1. RAFFWU Inc. also submit that the 2023 Agreement could not have been genuinely agreed within the meaning of s 188(1) of the Act (as it was prior to 6 June 2023) because BIG W failed to explain the terms and effects of the terms of the 2023 Agreement to employees as required by s 180(5) of the Act (as it was prior to 6 June 2023). It relies on the following omissions in that BIG W failed to explain;

(1)that the 2023 Agreement incorporates pay rates in the Woolworths Supermarket Agreement 2018[2] (the Woolworths Agreement) which also included an additional pay increase passed down on 3 July 2023;

(2)the incorporation of BIG W’s Code of Conduct and other policies into the 2023 Agreement; and

(3)the effect of clause 6.1.1 (Span of Hours) in the 2023 Agreement compared to clause 15 of the Award.

BOOT concerns

Classifications

  1. RAFFWU Inc. submit that in circumstances where the 2023 Agreement wage rates are only marginally above the Award, employees may be left worse off than under the Award because the classification descriptors in the 2023 Award permit a wider range of tasks to be performed at particular job classification levels than would be permitted under the Award.

  1. RAFFWU Inc. rely in part on the evidence of two BIG W team members, Laura Rafiqi[3] and Debra Curtis[4], regarding their duties and responsibilities. They are both classified at Level 1 under the Big W Stores Agreement 2019[5] (2019 Agreement) and would remain so classified under the 2023 Agreement if it were approved by the Commission. Mr Rafiqi variously states that she;

  • provides advice and assistance to customers with respect to technology products in the Technology section;

  • processes incoming security stock including high value items such as mobile phones, and that she is only one of two staff who process photo orders;

  • often works alone and that it is important in Technology to have a good knowledge of the products;

  • assists customers to process returns in her area; and

  • occasionally assists the Returns desk when they are busy if Technology can spare her.[6]

  1. Ms Curtis gave evidence that while she worked on the checkout and on the door in the BIG W Noosa store until four years ago, her duties now require her to;

  • process customer returns, putting items away and doing ‘recovery’ which involves placing returned items in the correct place in the store;

  • help other employees at the store, including supervisors at the front desk, by counting tills and securing money in deposit bags and then taking those bags to the service desks; and

  • sometimes train new employees on how to use the register and checkout duties.[7]

  1. Ms De Marchi who was called to give evidence stated as follows in respect of the classification structure;

  • The 2019 Agreement contains a more comprehensive classification structure which largely replicates the Award Schedule A classification structure however many of the functions described in Schedule A of the Award are not performed by BIG W members.

  • During bargaining for the 2023 Agreement, negotiations resulted in the development of a new clause that better reflects the existing BIG W store structure and better reflects team member tasks, duties and position titles and sought to remove unnecessary language from the 2019 Agreement, resulting in clause 3.3.

  • The 2023 Agreement removes Appendix A from the 2019 Agreement and instead provides that BIG W will classify all team members covered by the 2023 Agreement according to four classification levels set out in Table 3.3.5 as follows;

  • The above table specifies duties and tasks that fall within each of the four classifications in the 2023 Agreement and the four classifications levels align with the Award Schedule A classifications of Retail Employee Level 1, Level 2, Level 4 and Level 6.

  • Clause 3 uses terminology that is relevant to the work performed by team members and is familiar to BIG W whereas the Award classifications are broad and contemplate duties, tasks and roles performed across the entire retail industry.

  • BIG W does not employ team members who would be classified as a Retail Employee Level 3 of Level 5 under the Award. Nor does Ms De Marchi understand that BIG W directly employs loss prevention officers but rather store security is performed by specialist security contractors.

  • The Retail Level 3 classification under the Award refers to indicative tasks including ‘opening or closing the premises or providing associated security’ and ‘securing cash’, and that BIG W stores are generally opened and closed by a salaried Store Manager. Furthermore, if a team member covered by the 2023 Agreement was responsible for opening or closing a store, BIG W would consider that team member was ‘leading the store’ and would be entitled to be paid higher duties at the Level 6 rate in the 2023 Agreement.

  • Within BIG W stores, the Level 4 ‘Cash Office’ team members, which are clerical positions, are responsible for securing cash in store. If a Level 1 or Level 2 team member was responsible for securing cash in the manner undertaken by ‘Cash Office’ staff, they would be entitled to a higher duties allowance per clause 5.2 of the 2023 Agreement.

  • The Award Retail Level 5 classification refers to indicative job titles of ‘tradesperson in charge of other tradespersons within a department or section’ and ‘service supervisor (more than 15 employees)’. BIG W does not employ tradespersons and any team member that supervised 15 or more employees would be considered to be ‘Leading the Store’ and would be classified at Level 6 under the 2023 Agreement.

  • With respect to Ms Rafiqi’s evidence on handling cash, BIG W does not regard those duties as constituting ‘securing cash’ within the meaning of Schedule A clause 1.3.2(c) of the Award.[8]

  1. Ms De Marchi was not cross-examined on her evidence in relation to the classification structure. Nor did RAFFWU Inc. lead any evidence that would rebut Ms De Marchi’s evidence on the streamlined classification structure in the 2023 Agreement and its alignment with the Award classification structure. I am consequently satisfied on the basis of Ms De Marchi’s evidence that the classification structure in the 2023 Agreement seeks to replicate where appropriate, the Award classifications but in a manner tailored to the particular needs and terminology used within BIG W’s operations.

  1. Beyond speculation by RAFFWU Inc. on what the 2023 Agreement classification structure might permit, there is no probative material that would persuade me that the effect of the 2023 Agreement classification structure would be to permit a person classified at Level 1 for example to perform work of a higher classification without being paid accordingly. Ms De Marchi’s evidence on the use of the higher duties clause tells against the RAFFWU Inc. submission.

  1. It follows from the foregoing that I am not satisfied that the 2023 Agreement classification structure represents a detriment when compared to the Award. It (the classification structure) is consequently a neutral consideration in the BOOT assessment.

Span of ordinary hours

  1. RAFFWU Inc. submits that the 2023 Agreement permits employees in stores that do not open beyond 9.00pm on Monday to Friday or beyond 6.00pm on Saturday and Sunday to work a broader span of ordinary hours than is permitted by the Award. This means according to RAFFWU Inc. that employees in these circumstances would receive ordinary rates of pay for hours that would attract overtime penalty rates under the Award.

  1. Clause 6.1.1 of the 2023 Agreement sets out the span of ordinary hours as follows;

  1. By comparison, clauses 15.1 and 15.2 of the Award provide as follows;

15.1Ordinary hours may be worked by an employee on the day specified in column 1 during the span of ordinary hours specified in column 2 of Table 2—Span of hours .

Table 2 – Span of hours

Column 1
Days 		Column 2
Span of hours
Monday to Friday, inclusive 7.00am to 9.00pm
Saturday 7.00am to 6.00pm
Sunday 9.00am to 6.00pm

15.2However, ordinary hours may be worked:

(a) from 5:00 am in a newsagency; or

(b)until midnight in a video shop; or

(c)     until 11.00 pm if the trading hours of the establishment extend beyond 9.00 pm on a Monday to Friday or 6.00 pm on a Saturday or Sunday.

  1. It is readily apparent due to the effect of clause 15.2(c) of the Award that the span of ordinary hours permitted by the Award will be the same as the 2023 Agreement for those stores that have trading hours that extend beyond 9.00pm on a Monday to Friday and beyond 6.00pm on a Saturday or a Sunday. For those BIG W stores that do not have such extended operating hours, the 2023 Agreement would in my view permit employees to be rostered to work ordinary hours between 9.00pm and 11.00pm Monday to Friday and between 6.00pm and 11.00pm on a Saturday or a Sunday where such hours of work would otherwise attract overtime penalty rates under the Award. I accept the RAFFWU Inc. submission that having regard to the slim wage rate margin of 2023 Agreement rates above Award base rates of pay, this gives rise to a BOOT concern.        

  1. While BIG W do not accept the premise of RAFWWU Inc.’s contentions, they have nonetheless offered the following undertakings to address the identified BOOT concern;

1.   In lieu of clause 6.1.1 of the 2023 Agreement, clause 15.1 and clause 15.2 of the General Retail Industry Award 2020 as varied, replaced or amended from time to time will apply.

2.   In relation to clause 6.2 of the 2023 Agreement, penalty rates which are equivalent to the appropriate overtime rate will apply to hours worked outside the span of ordinary hours identified in clause 6.1.1 of the 2023 Agreement, as set out in paragraph 1 of this Undertaking. 

  1. The SDA and AWU advised that they took no objection to the proposed undertakings. RAFFWU Inc. however raised concerns that the undertakings do not resolve ambiguity that arises through the interaction of undertaking 2 (if accepted) and the table in clause 6.2 of the 2023 Agreement which provides as follows;

  1. Table 6.2 details the penalty rates that apply to ordinary hours worked from Monday to Friday, Saturday and Sunday according to the times of the day the hours are worked. I understand RAFFWU Inc.’s concern to be that if the undertakings were accepted, an employee working in a store with narrower trading hours would be entitled to receive overtime penalty rates under the 2023 Agreement for hours worked between 9.00pm and 11.00pm Monday to Friday and between 6.00pm to 11.00m on the weekend. Table 6.2 suggests however that such employees would only receive penalty rates of 125% for those hours, being less than the overtime penalty rate of 150% that would apply for the first three hours of overtime.

  1. While I understand RAFFWU Inc.’s concern, the cited ambiguity could just as easily arise in different circumstances. Take for example a team member whose ordinary hours of work require them to commence work at 7.00am on Monday to Friday. If that employee were asked to work in excess of 38 hours per week or beyond 9 hours per day, they would clearly be entitled to overtime penalty rates for such additional hours of work, even where those additional hours of work fell within periods set out in Table 6.2 that attracted lesser penalty rates. Table 6.2 clearly applies in respect of ordinary hours of work that fall within the defined time periods and do not ‘trump’ entitlements to overtime penalty rates that would otherwise apply. In these circumstances I do not perceive a tension or ambiguity arising from undertaking 2.

  1. I am satisfied that the undertaking if accepted would align the span of ordinary hours provisions in the 2023 Agreement with those of the Award. Further, it would ensure that hours worked outside of the span of hours would attract the appropriate overtime penalty rate under the 2023 Agreement, which is the same as the Award. The proposed undertakings remedy the identified BOOT concern.

Overall BOOT assessment

  1. Subject to acceptance of the proposed undertakings, the 2023 Agreement would provide for rates of pay of between 0.44% and 1.87% above the Award. There are also a range of other terms and conditions in the 2023 Agreement that are either more beneficial than the Award and NES or not conferred by the Award. For permanent employees, these include:

  • Wage rate increases – are set above the Annual Wage Review (AWR) outcome by a margin of 0.25% for 2024, 0.5% for 2025 and 2026 and 0.75% for 2027.

  • Boosted leave - which allows employees to elect to forgo the above AWR wage increase and alternatively increase their leave by the value of the above AWR wage increase from July 2025.

  • Leave entitlements - enhanced personal, compassionate, community service (jury and defence force) leave entitlements.

  • Reduced notice requirements when employees resign.

  • Enhanced redundancy entitlements compared to the Award which refers to the NES minimum.

  • Four day week arrangements for full-time employees by agreement.

  • Multi-site work – option to work at other Woolworths stores by agreement and increase contract hours.

  • Access to unpaid leave for a range of circumstances for up to 3 months on any one occasion and up to 6 months by agreement.

  1. I am satisfied that the proposed undertakings would be unlikely to cause financial detriment to any employee covered by the 2023 Agreement or result in substantial change.

  1. Considering all the terms and conditions in the 2023 Agreement including the beneficial entitlements which I have outlined above and the undertakings which I accept, I am satisfied that the 2023 Agreement passes the BOOT as required by s 186(2)(d) of the Act. In reaching my conclusion I have had regard to the higher rates of pay, and a range of increased leave entitlements conferred by the 2023 Agreement which, I consider, are such as to leave each Award covered employee and reasonably foreseeable employee better off overall when compared to the Award at test time.

Whether 2023 Agreement genuinely agreed

  1. RAFFWU Inc.’s submissions on whether the 2023 Agreement was genuinely agreed, which are considered below, turn largely on its contention that BIG W failed to comply with the requirements of s 180(5) of the Act (as it was prior to 6 June 2023). Reaching the requisite state of satisfaction as to compliance with s 180(5) depends on the circumstances of the case. The nature of the requirement was helpfully summarised by a Full Bench in The Australian Workers Union v Rigforce Pty Ltd T/A Rigforce[9] (Rigforce) as follows;

“[35] In considering the “genuinely agreed” ground of appeal, it is necessary for reasons which will become apparent to consider in detail only the question of compliance with the pre-approval step in s 180(5). The nature of the requirement in s 180(5) was analysed in detail by the Federal Court (Flick J) in CFMEU v One Key Workforce Pty Ltd. We adopt the summary of that analysis set out in CFMMEU v Ditchfield Mining Services Pty Limited, which reduced it to the following four propositions:

(1)whether an employer has complied with the obligation in s 180(5) depends on the circumstances of the case;

(2)the focus of the enquiry whether an employer has complied with s 180(5) is first on the steps taken to comply, and then to consider whether:

• the steps taken were reasonable in the circumstances; and

• these were all the reasonable steps that should have been taken in the circumstances;

(3)the object of the reasonable steps that are to be taken is to ensure that the terms of the 2023 Agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given; and

(4)an employer does not fall short of complying with the obligation in s 180(5) of the FW Act merely because an employee does not understand the explanation provided.

[36] Additionally, we also adopt the analysis of Gostencnik DP in BGC Contracting Pty Ltd concerning the nature of a statutory obligation to take “all reasonable steps” as follows (footnote omitted):

“[43] A requirement or obligation to take “all reasonable steps” seems to me to require the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply. Whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense…”

  1. Before turning to consider the genuine agreement matters raised by RAFFWU Inc. it is useful to set out the process by which BIG W communicated with and explained the terms and effects of the terms of the 2023 Agreement. Detailed evidence that went largely unchallenged, was provided by Ms De Marchi. Ms De Marchi set out the various means by which BIG W communicated with staff in relation to the proposed 2023 Agreement which may be summarised as follows;

(1)Work Jam is an application that Woolworths uses to communicate messages to team members. It was used throughout bargaining and during the access period to communicate with team members of BIG W. It was typically used to direct team members to new information that had been uploaded to the EA microsite.[10]

(2)The EA Microsite was used as the on-line repository for all information and documents in relation to bargaining and making of the 2023 Agreement. The EA Microsite could be accessed via the website address or QR code through any device with internet access[11].

(3)BIG W portal – all team members have access to a dedicated BIG W intranet portal which is a centralised communication and resources tool that contains links to various employment information. There is also an AI Q&A tool available on the BIG W portal which can refer team members to where they can find relevant documentation[12].

(4)Store Manager Communications – Store Managers provided direct communication to team members during bargaining and during the access period. Between 25 October and 27 November 2023, Ms De Marchi instructed the communications team to provide weekly updates to all Store Managers in relation to the 2023 Agreement[13].

  1. In relation to the provision of documents to employees, Ms De Marchi states she took the following steps;

(1)Arranged for a copy of the 2023 Agreement to be placed on the EA Microsite in late October 2023[14];

(2)In late October 2023, she instructed a staff member to arrange for 2 copies of the 2023 Agreement to be printed for each store then arranged for distribution, with instructions to Store Managers to pin copies of the 2023 Agreement on each staff noticeboard[15].

(3)In late October she prepared a document titled “Highlights of your new Enterprise 2023 Agreement (Highlights Document)[16].

(4)In late October she prepared a slide pack for team members explaining the terms of the 2023 Agreement (Agreement Summary Slide Pack)[17].

(5)The Highlights Document and Agreement Summary Slide Pack were uploaded onto the EA Microsite on or about 25 October 2023[18]. These documents identified changes from the 2019 Agreement as well as clauses that had not changed.

(6)On 25 October 2023, BIG W uploaded a video to the BIG W Portal, Work Jam and EA Microsite, which explained key terms of the 2023 Agreement[19].

(7)In late October 2023, a colleague of Ms De Marchi prepared 18 Fact Sheets in relation to key terms of the 2023 Agreement, and these were uploaded to the EA Microsite on or by 3 November 2023[20].

  1. Ms De Marchi gave further evidence on the information sessions provided to employees to the following effect;

(1)Checklists prepared and distributed to Store Managers required them to conduct team member information sessions between 26 October and 16 November 2023 in which the Store Managers were required to read the 2023 Agreement, Agreement Summary Slide Pack and the Highlights Document[21].

(2)All team members were encouraged to attend an information session through various means including; scheduling multiple information sessions, facilitating representatives from the SDA and AWU to attend information sessions, ensuring information sessions were discussed in morning huddles and keeping a record of team member attendance[22].

(3)Records indicate that of BIG W’s workforce of approximately 15,000, 9923 team members attended an information session before or during the access period for the 2023 Agreement[23].

(4)Additional communication and a checklist was arranged to be sent to all Store Managers on 6 November 2023 reiterating the instructions regarding the conduct of information sessions[24].

BIG W Code of Conduct and policies

  1. RAFFWU Inc. contend that external material is incorporated into the terms of the 2023 Agreement and that the obligations imposed on employees by that incorporated material was not properly explained to employees. The contended incorporation of material is said to firstly arise from clause 2 of the 2023 Agreement which states as follows;

“2BIG W policies

2.1What are BIG W’s standards and policies?

2.1.1BIG W aspires to be a great place to work and a great place to shop. We are all responsible for contributing to an environment where everyone at BIG W is treated with dignity, courtesy and respect. To ensure we do the right thing by our teams, our customers and our communities, BIG W has standards and policies that we expect our team members to follow at all times.

2.1.2 All team members at BIG W are required to read, understand and follow the Code of Conduct and all applicable BIG W policies. However, such policies are not incorporated into this Agreement or any team member’s contract of employment. The Code of Conduct and all policies are available on the BIG W intranet, and may be updated from time to time.’

………………..”

  1. RAFFWU Inc submit that the language of clause 2 incorporates the relevant policies by requiring compliance and cannot be overcome by the specific statement in clause 2.1.2 that the policies are not incorporated. According to RAFFWU Inc. the incorporation of the policies was not properly explained to employees. Support for the submission is drawn by RAFFWU Inc. from the decisions of DP Gostencnik in Broadsword Marine Contractors Pty Ltd v Maritime Union of Australia[25] (Broadsword) and in BGC Contracting Pty Ltd[26] (BGC) in which the Deputy President was relevantly considering whether the language in those agreements incorporated external documents into the agreements.

  1. RAFFWU Inc.’s submission that the policies are incorporated by reason of the words ‘required to read, understand and follow the Code of Conduct and all applicable BIG W policies’ is rejected. Unlike the language used in clause 26.4 of the Broadsword agreement that DP Gostencnik found incorporated Fitness for Work policies into that agreement, clause 2.1.2 of the 2023 Agreement does not impose a compliance requirement. Further distinguishing the present clause being dealt with from those considered in Broadsword and BGC, is that the Code of Conduct and policies are explicitly excluded from incorporation in the 2023 Agreement by the second sentence in clause 2.1.2. There is no room for ambiguity in circumstances where there are express words of exclusion. I am satisfied that the Code of Conduct and BIG W policies are not incorporated as terms of the 2023 Agreement.

  1. Turning now to the RAFFWU Inc. contention that the clause 2.1.2 was not properly explained to employees, some reliance was placed on the evidence of Ms Rafqui and Ms Curtis who are both employees of BIG W. They gave various evidence that they were either not invited to or did not attend information sessions on the proposed 2023 Agreement[27], that no one explained anything to them about the Code of Conduct and policies[28] and that they could not recall seeing any information about the proposed 2023 Agreement[29].

  1. Ms De Marchi states she arranged for relevant supplementary materials in relation to the 2023 Agreement to be added to the EA Microsite by no later than 9 November 2023. From 9 November 2023 employees were able to access all the supplementary material including the Code of Conduct and BIG W policies on the EA Microsite and BIG W Portal.[30]

  1. In relation to the evidence of Ms Rafqui, Ms De Marchi gave unchallenged evidence that;

  • During the access period, 41 of the 69 team members employed in the Noosa store where Ms Rafqui works, attended information sessions;

  • Ms Rafqui was rostered for six shifts in the 9 – 16 November 2023 access period and worked all of these shifts; and

  • Ms Rafqui was rostered to work from 25 October 2023 when team members commenced being invited to attend information sessions.[31]

  1. In relation to the evidence of Ms Curtis, Ms De Marchi gave unchallenged evidence that;

  • Ms Curtis attended an information session as evidenced by her signing an attendance record for an information session held at the Noosa store on 10 November 2023; and

  • Copies of the 2023 Agreement, the Highlights Document and Agreement Summary Slide Pack were pinned to the Staff Notice Bopard in the Noosa store as evidenced by a photograph taken on 25 October 2023.[32]

  1. RAFFWU Inc.’s submissions that BIG W failed to properly explain clause 2 of the 2023 Agreement are rejected for the following reasons.

  1. Firstly, BIG W provided employees with access to a range of supplementary materials on both the EA Microsite and the BIG W Portal. This included the Code of Conduct and policies referred to in clause 2.

  1. Secondly, BIG W specifically addressed clause 2 of the 2023 Agreement in the Agreement Summary Slide Pack made available to employees when it said as follows;

“Clause 2: BIG W Policies

“In the proposed Agreement there are no changes to the clauses related to:

● BIG W’s standards and policies;
● About work health and safety;
● Team member safety and security;
● Respectful workplace; and
● Diversity and inclusion.

The proposed Agreement provides that all team members at BIG W are required to read, understand and follow the Code of Conduct and all applicable BIG W policies. However, such policies are not incorporated into this Agreement or any team member’s contract of employment. The Code of Conduct and all policies are available on the BIG W intranet, and may be updated from time to time.

BIG W policies cover matters including (but not limited to) work health and safety, personal appearance, bullying, harassment, discrimination, workplace behaviours, diversity and inclusion, team member benefits and leave.

Copies of policies referenced in the proposed Agreement will be available for team members during the access period.”[33]

  1. Thirdly, Clause 2 is in the same terms as the equivalent clause found in the 2019 Agreement and as such BIG W was arguably not required to provide a detailed explanation of that term or its effects in circumstances where an explanation of the changes from the preceding industrial instrument would normally be sufficient to meet the requirements of s 180(5) of the Act (as it was prior to 6 June 2023). In my view BIG W took the reasonable step of explaining to employees that there was no change in clause 2 from the 2019 Agreement. No additional step was necessary in the circumstances.

  1. Finally, the evidence of Ms Rafqui and Ms Curtis does not demonstrate that BIG W failed to take all reasonable steps to explain the 2023 Agreement terms. BIG W made information available to employees through a range of electronic media, placed hard copies of relevant material on staff notice boards, invited employees to information sessions conducted by store managers and facilitated access of SDA and AWU representatives to team member meetings. I am satisfied that these were all the reasonable steps required to comply with s 180(5). The statutory test is not that employees understood all of the material presented to them or that all employees availed themselves of those information opportunities. Consequently, Ms Rafqui and Ms Curtis’ evidence does not tell in favour of a conclusion that BIG W failed to comply with the requirements of s 180(5) of the Act (as it was prior to 6 June 2023).

Woolworths Agreement pay rates

  1. Clause 8.8 is a new clause that has been introduced into the 2023 Agreement and provides an opportunity for BIG W team members by agreement to work complete shifts at another BIG W store or in the Woolworths supermarket network. It states as follows;

“8.8 Multi work sites

8.8.1As a way to provide team members with meaningful hours of work (and as a way for part time team members to increase their contract hours), BIG W offers team members the ability to work complete shifts at another BIG W store or at another store within Woolworths Supermarkets network by agreement with BIG W.

8.8.2All team members will be engaged at a home store.

8.8.3A team member may, by agreement in writing, work complete shifts at another BIG W store or at another store within Woolworths Supermarkets network, either on an ad hoc or ongoing basis.

8.8.4The rostering provisions in this Agreement will apply in relation to work undertaken in the team members’ home store, another BIG W store or at another retail store within the Woolworths Supermarkets network.

8.8.5A team member will be paid at the rate commensurate with the duties performed at the location where they are performed in accordance with this Agreement and subject to clause 8.8.6.

8.8.6When a team member completes a shift at another BIG W store or at another store within Woolworths Supermarkets network, the team member will be paid for the duties so performed at the highest rate applicable, at:

(a)their home store, or

(b)another BIG W store; or

(c)another store within Woolworths Supermarkets network.

8.8.7Team members may elect to work shifts across multiple stores and will complete a store nomination form as their Agreement to do so. A nomination to work across multi sites will not be a condition of employment. A team member may withdraw their agreement to work in another BIG W store(s) or store(s) within the Woolworths Supermarkets network or vary the nominated stores by giving 28 days’ notice in writing. A team member acknowledges that this may result in a decrease in their total contract hours.

8.8.8If BIG W requires a team member to work at any location other than their home store or nominated additional store(s), they will be entitled to transport allowance and/or travel time under clauses 5.2 and 5.3.”

  1. RAFFWU Inc. submit that the Woolworths Agreement rates of pay referred to in clause 8.8 are incorporated terms, were not provided to employees and were not properly explained. RAFFWU Inc. submits that gives rise to a concern that the 2023 Agreement cannot have been genuinely agreed. Furthermore, it is an omission that cannot be overcome by s 188(2) of the Act (as it was prior to 6 June 2023).

  1. Clause 8.8 enables Team Members subject to reaching agreement with BIG W, to undertake work away from their home store at another BIG W store and/or at a Woolworths supermarket store. This is a beneficial provision in that it would allow part-time or casual employees to increase their contract hours. Contrary to RAFFWU Inc.’s submission, I do not accept that the language of clause 8.8 has the effect of incorporating rates of pay from the Woolworth’s Agreement. The clause simply establishes reference rates of pay for the purpose of paying a Team Member in circumstances where they have reached agreement to work at a Woolworths store and where the rates of pay (at a point in time) for particular work performed in the Woolworths store are higher than the rates of pay provided for by the 2023 Agreement. As the Woolworths rates of pay are not incorporated terms of the 2023 Agreement it was unnecessary for BIG W to provide a copy of the current Woolworths Agreement rates of pay (inclusive of July 2023 wage rate increases) to employees.

  1. As regards the explanation of clause 8.8 provided to Team Members, the Agreement Summary Slide Pack[34] identified that it was a new clause and summarised the key features of the clause. A Fact Sheet[35] dealing with the ‘Multi work site’ clause was also developed and distributed. The Agreement Summary Slide Pack and Fact Sheet explanations did not include a comparison of rates of pay between the 2023 Agreement and Woolworths Agreement. Such a comparison was however unnecessary in my view in circumstances where those rates of pay were not incorporated and where the 2023 Agreement rates of pay provided a ‘floor’ above which an employee could be paid if they performed work in another store that attracted a higher rate of pay. The further point to be made is that an employee cannot be compelled to undertake work at a Woolworths Store. It can only occur by agreement as made clear in the explanations.

  1. I am satisfied that the above-referred explanations provided to Team Members of the Multi work sites clause were reasonable steps and were all the reasonable steps that BIG W ought to have taken. I am not persuaded that BIG W has failed to comply with s 180(5) of the Act (as it was prior to 6 June 2023) in respect of its explanation of clause 8.8 of the 2023 Agreement. RAFFWU Inc.’s objection to approval of the 2023 Agreement on this ground is consequently rejected.

Span of ordinary hours

  1. Further to the BOOT concern considered above, RAFFWU Inc. contend that BIG W failed to properly explain the differences between the span of ordinary hours dealt with in clause 6.1 of the 2023 Agreement and clause 15 of the Award. BIG W counter that argument by referring to an explanatory document that was provided to employees on 9 November 2023 via the EA Microsite that compared the terms of the 2023 Agreement with key terms of the Award.

  1. I firstly note that clause 6.1 of the 2023 Agreement is in the same terms as contained in the 2019 Agreement. Ordinarily an explanation of the changes in the terms of an enterprise agreement from the existing industrial instrument would be sufficient to discharge the obligation under s 180(5) of the Act (as it was prior to 6 June 2023). In this case there are no changes to the clause when compared to the existing instrument, that of the 2019 Agreement. The Agreement Summary Slide Pack made available to employees made clear that there was no change to the span of hours clause from the 2019 Agreement[36]. RAFFWU Inc. contends however that clause 15 of the Award was varied since the 2019 Agreement came into operation. The change made to clause 15 of the Award was said by RAFFWU Inc. to have occurred in 2020 by substitution of the word ‘retailers’ where it previously appeared in clause 15.2(c) of the Award with the word ‘establishment’ and arose out of the Award Review process.

  1. While contending that the change in wording in clause 15.2 of the Award imposed obligations on BIG W to explain the differences between the Award and the 2023 Agreement clauses, RAFFWU Inc. did not elaborate on how the Award clause change impacted on the span of ordinary hours that would have applied to BIG W under the Award if the Award were to have applied. I readily accept that as the Award is displaced by the 2019 Agreement, it would have been appropriate for BIG W to have explained the terms of the 2023 Agreement and the effect of those terms relative to Award entitlements if there had been a material change to significant clause/s in the Award in the period since the 2019 Agreement commenced operation. On the limited and late oral submissions advanced by RAFFWU Inc. on the span of ordinary hours point, I am unable to conclude that the changes made to clause 15.2 of the Award in 2020 referred to above altered the underpinning Award entitlement of BIG W employees in respect of the span of ordinary hours such that an explanation of the altered Award entitlement ought to have been provided.

  1. Notwithstanding the above, BIG W included an explanation of differences between the 2023 Agreement and Award entitlements, and which did include reference to the span of hours clause in the 2023 Agreement. Putting aside the fact that the 2023 Agreement versus Award comparison document is almost 200 pages long which is likely to render it almost impenetrable for most employees, a limited explanation is provided of clause 6.1 of the 2023 Agreement versus clause 15 of the Award. At page 168 of the explanatory document, clause 6.1 of the 2023 Agreement and clause 15 of the Award are set out with an explanation provided that the span of hours in the 2023 Agreement is the same as the Award only where the trading hours of the establishment extend beyond 9.00pm on weekdays and 6.00pm on weekends. That explanation is correct as far as it goes. The explanation does not however make clear the implications for employees engaged in stores where the trading hours do not extend beyond 9.00pm Monday to Friday or beyond 6.00pm on a weekend. Nor does it explain that employees in these circumstances would receive ordinary time rates of pay for certain hours of work under the 2023 Agreement that would otherwise attract overtime penalty rates under the Award.

  1. BIG W correctly explained to employees that clause 6.1 of the 2023 Agreement was the same as the equivalent clause in the 2019 Agreement. I am not persuaded on the limited material before me that there was a significant change in the effect of clause 15.2 of the Award following commencement of operation of the 2019 Award such that BIG W was required to provide an explanation to employees. While unnecessary from my perspective in terms of meeting its obligations in respect of s 180(5) of the Act BIG W nonetheless provided access to a 2023 Agreement versus Award comparison document which included an accurate but incomplete explanation of the differences between clause 6.1 of the 2023 Agreement and clause 15 of the Award. That incomplete explanation does not however undermine my conclusion that BIG W took all reasonable steps to explain the effects of clause 6.1 of the 2023 Agreement to employees, that being there was no change from the 2019 Agreement.

  1. If I am wrong in my conclusion that BIG W took all reasonable steps to explain clause 6.1 of the 2023 Agreement, any genuine agreement concern arising from a deficient explanation of clause 6.1 of the 2023 Agreement is remedied by the proposed undertakings considered above. Acceptance of the undertakings would ensure that the span of hours in the 2023 Agreement mirrored the Award provision. It follows from the foregoing that RAFFWU Inc’s objection on this ground is rejected.

Conclusion

  1. BIG W has provided written undertakings. A copy of the undertakings is attached in Annexure A. The undertakings are taken to be a term of the 2023 Agreement. Subject to those undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

  1. I note that clause 19.3 of the 2023 Agreement which deals with abandonment of employment is inconsistent with the National Employment Standards (NES). Given the NES precedence clause at clause 1.4.2 of the 2023 Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

  1. The Shop Distributive and Allied Employees’ Association and The Australian Workers Union being bargaining representatives for the 2023 Agreement, have given notice under s.183 of the Act that they want the 2023 Agreement to cover them. In accordance with s.201(2) I note that the 2023 Agreement covers these organisations.

  2. The 2023 Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 May 2024. The nominal expiry date of the 2023 Agreement is 1 October 2027.

DEPUTY PRESIDENT

Annexure A


[1] MA000004

[2] AE501243

[3] Exhibit R1, Witness Statement of Laura Rafiqi, dated 18 January 2024

[4] Exhibit R2, Witness Statement of Debra Curtis, dated 18 January 202

[5] AE505337

[6] Exhibit R1, at [3]-[8]

[7] Exhibit R2, at [3]-[6]

[8] Exhibit A1, Witness Statement of Christie De Marchi, dated 12 February 2024, at [60]-[75]

[9] [2019] FWCFB 6960

[10] Exhibit A1, at[16]-[18]

[11] Ibid, at[19]-[22]Attachment CDM -3, Screenshot of EA Microsite front page

[12] Exhibit A1, at [23]-[25]

[13] Exhibit A1, at [26]-[29]

[14] Ibid at [30]

[15] Ibid at [31]

[16] Ibid, Attachment CDM-5, Highlights Document

[17] Exhibit A1, Attachment CDM-6, 2023 Agreement Summary Slide Pack

[18] Exhibit A1, at [34]

[19] Ibid at [35]

[20] Ibid at [36]-[37]

[21] Ibid at [39]-[40]

[22] Ibid at  [41]

[23] Ibid at [42]

[24] Ibid at [43]

[25] [2015] FWC 6627

[26] [2018] FWC 1466

[27] Exhibit R1 at [15]

[28] Ibid, at [18], Exhibit R2 at [9]

[29] Exhibit R2 at [10]

[30] Exhibit A1, at [55]-[56]

[31] Ibid, at [76]-[77]

[32] Ibid at [81]-[82], Attachment CDM-16, Photograph of Noosa store Staff Notice Board

[33] Exhibit A1, Attachment CDM-6, at Court Book p.152

[34] Ibid, at Court Book p. 179

[35] Exhibit A1, Attachment CDM-8, Fact Sheet – Multi site work, at Court Book p. 200

[36] Exhibit A1, Attachment CDM-6, at Court Book p.167

Printed by authority of the Commonwealth Government Printer

<AE523762  PR772144>

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AWU v Rigforce Pty Ltd [2019] FWCFB 6960
Broadsword Marine Contractors Pty Ltd v Maritime Union of Australia, The [2015] FWC 6627
BGC Contracting Pty Ltd [2018] FWC 1466