Woolworths Group Limited T/A Woolworths
[2019] FWCA 7
•7 JANUARY 2019
| [2019] FWCA 7 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Woolworths Group Limited T/A Woolworths
(AG2018/6144)
WOOLWORTHS SUPERMARKETS AGREEMENT 2018
Retail industry | |
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 7 JANUARY 2019 |
Application for approval of the Woolworths Supermarkets Agreement 2018; consideration of approval requirements; consideration of undertakings; some undertakings accepted; satisfied approval requirements have been met; agreement with undertakings approved.
1. Introduction
[1] Woolworths Group Limited and Woolworths (South Australia) Pty Limited have made an agreement titled Woolworths Supermarkets Agreement 2018 (Agreement) covering certain groups of their employees. Woolworths Group Limited is a bargaining representative for the Agreement and has applied under s.185 of the Act for the approval of the Agreement. Woolworths Group Limited and Woolworths (South Australia) Pty Limited are single interest employers within the meaning of s.172(5) of the Fair Work Act 2009 (Act) and I will hereafter for convenience refer to them as “Woolworths”. The application was lodged on 1 November 2018 and was accompanied by a statutory declaration of Ms Jannifer Kerr, Workplace Relations Manager of Woolworths.
[2] The Shop Distributive and Allied Employees Association (SDA), the Australasian Meat Industry Employees Union (AMIEU), and The Australian Workers’ Union (AWU), collectively “the Unions”, are bargaining representatives for the Agreement and each gave notice wanting to be covered by the Agreement. The Unions have each lodged statutory declarations in support of the Agreement’s approval. The Retail and Fast Food Workers Union Incorporated (RAFFWU) is also a bargaining representative having been appointed by a number of employees in relation to the proposed agreement. RAFFWU opposes the approval of the Agreement on various bases.
[3] I have determined to approve the Agreement with undertakings. These are my reasons for doing so.
2. Background
[4] By way of background and factual context, the Agreement is the third enterprise agreement made by Woolworths under the Act. On 20 May 2010, Fair Work Australia (FWA) approved an enterprise agreement titled the Woolworths National Supermarkets Agreement 2009 (2009 Agreement). 1 Much like the Agreement before me, the 2009 Agreement:
• was expressed not to cover “salaried Department Managers, Assistant Managers and Store Managers”; 2
• made provision for non-salaried Department Managers and non-salaried Duty Managers; 3
• made provision that a signed copy of the 2009 Agreement be available in a prominent and accessible place on a notice board; 4 and
• required Woolworths to provide reasonable space on a notice board on which notices of relevant unions could be displayed. 5
[5] In September 2011 and thereafter, Woolworths gave a notice of employee representational rights (NERR) for the commencement of bargaining for an enterprise agreement to replace the 2009 Agreement to employees to be covered by the replacement agreement. This was done by displaying the NERR on a notice board in each store. 6
[6] On 25 October 2012 FWA, approved an enterprise agreement titled the Woolworths National Supermarkets Agreement 2012 (2012 Agreement). 7 Also much like the Agreement before me, the 2012 Agreement:
• was expressed not to cover salaried positions including but not limited to “Team Managers, Team Support, Duty Managers, Assistant Managers and Store Managers”; 8
• made provision for non-salaried Department Team Managers and Duty Managers; 9
• made provision for seven “Retail Employee” classifications as follows:
○ Retail Employee Grade 1;
○ Retail Employee Grade 2;
○ Retail Employee Grade 3 (including a Store Services Assistant);
○ Retail Employee Grade 3b;
○ Retail Employee Grade 4 (including Store Services Officer);
○ Retail Employee Grade 5 (including Qualified Trade Baker and a Qualified Trade Butcher); and
○ Retail Employee Grade 5b (including Qualified Tradesperson Team Support); 10
• made provision that a signed copy of the 2012 Agreement be available in a prominent and accessible place on a notice board; 11 and
• required Woolworths to provide reasonable space on a notice board on which notices of relevant unions could be displayed. 12
[7] In October 2014, Woolworths initiated or agreed to bargain for an enterprise agreement to replace the 2012 Agreement to apply to non-salaried employees employed in Woolworths’ supermarkets. 13 The precise date on which it did so is not readily apparent from the material in evidence.14 There is some difficulty in identifying a notification time that is referable to the NERR issued in 2014 (2014 NERR). This is because Ms Kerr, who was not employed in her current role in October 2014, was unable to give evidence about when Woolworths initiated bargaining or agreed to bargain. Nonetheless I consider that from the documents a notification time may be identified. It is clear that on or about 21 October 2014, Woolworths sent the 2014 NERR to its Store Managers with instructions for that notice to be placed on display on the same day that the Store Manager received the communication. The instruction was for the Store Manager to print the notice and “place on your noticeboard in clear view of employees” and to place “a second copy of the document in a prominent location within the store”.15 The instruction also required the notice to be sent to the home addresses of employees who over the following two week period are on the leave or are not rostered to work.16 This step was to be completed by 27 October 2014.17
[8] Significantly, the information to Store Managers also advised that “Woolworths will soon be commencing negotiations on the Woolworths National Supermarket Agreement 2015 which will cover non-salaried employees within your store”. 18 [Emphasis added]
[9] According to the evidence, on 24 October 2014 Woolworths asked its Store Managers to complete a survey which was titled “National Agreement – Notice of Representational Rights Confirmation”. 19 The purpose of the survey was to ensure that Store Managers had completed the actions concerning the posting of the 2014 NERR as required by the earlier instructions.20 The results of the survey confirmed that the notices had been posted in accordance with the instruction.21
[10] The introductory paragraphs to the survey contained the following:
“On Tuesday, 21 October 2014 you were sent communication [National Agreement – Notice for Employees] regarding the upcoming negotiations for the Woolworths National Supermarket Agreement 2015.
As we are legally required by the Fair Work Act to notify our employees and advise them of their representational rights prior to commencing negotiations, Store Managers were requested to display a ‘Notice of employee representational rights’ document in store and ensure the document was posted to any employee not in store over the next two weeks.” 22 [Emphasis added]
[11] It seems to me clear from the correspondence to Store Managers of 21 and 24 October 2014 that Woolworths believed it could not begin bargaining for a proposed agreement until it had given the notice. This is clear from the combined effect of the emphasised passages in the information sheet to Store Managers and in the survey. It is also clear from the evidence that on 12 November 2014 Woolworths commenced bargaining with the Unions for a proposed agreement. 23
[12] The definition of ‘notification time’ in s.173(2)(a) of the Act indicates that an employer’s agreement to bargain is a single event which happens at a particular point in time. 24 The same may be said of an employer initiating bargaining. An employer may agree to bargain expressly in writing or orally, or an employer may be inferred to have agreed to bargain through its conduct, such as by commencing to actually engage in bargaining in relation to a proposed enterprise agreement.25 The issuing of a NERR may evidence that the employer has agreed to bargain, but the requirement to issue the NERR arises once the employer has agreed to bargain or has initiated bargaining – it is not a prerequisite for bargaining.26 Whether an employer has agreed to bargain or has initiated bargaining in relation to a proposed enterprise agreement is a question of fact. A NERR is an indicator of employer intention but not necessarily the determining factor.27
[13] Taken as a whole I consider that the documents show that Woolworths was as at 21 October 2014 intending to commence negotiations for a proposed agreement shortly. It was of the view (wrongly) that it could not commence negotiations until it had issued the 2014 NERR. It took the step of issuing the 2014 NERR on 21 October 2014. I consider that in doing so Woolworths initiated bargaining for a proposed agreement and that it did so on 21 October 2014. RAFFWU appears to accept that Woolworths “initiated bargaining in 2014”. 28 I am therefore satisfied that the notification time in relation to the proposed agreement to which the 2014 NERR relates is 21 October 2014.
[14] Accordingly, on the material before me, the following is clear. The Unions were bargaining representatives for the proposed agreement. The notification time for the proposed agreement to which the 2014 NERR relates was 21 October 2014. Woolworths gave “non-salaried employees” working in its supermarkets the 2014 NERR by displaying the notice on a notice board in each supermarket. 29 It also sent the notice by mail to absent employees as earlier identified, and placed another copy of the notice in a prominent location in each supermarket.30 Woolworths commenced negotiating with the Unions in their capacities as bargaining representatives for an agreement to replace the 2012 Agreement in November 2014.31 The 2012 Agreement passed its nominal expiry date on 30 June 2015.32
[15] In October 2015, Woolworths made a decision to seek to extend coverage of the proposed replacement agreement to the non-salaried employees working in its “Metro Stores”. 33 Subsequently in November 2015, Woolworths gave non-salaried employees in the Metro Stores a NERR (2015 NERR). This was done by displaying the notice on a notice board in each Metro Store.34 In that month Woolworths also commenced negotiating with the Unions in their capacities as bargaining representatives for the proposed replacement agreement.35 RAFFWU also commenced as a bargaining representative to represent some employees in bargaining for the proposed replacement agreement.36 No one has suggested that the 2015 NERR (save for the logo issue discussed below) was not given as required by the Act. I accept that it was.
[16] It appears that between 12 February 2016 and 6 February 2018 there were no bargaining meetings held between Woolworths, the Unions and RAFFWU for a replacement enterprise agreement. 37 Some drafting occurred during mid-2016 and there was no bargaining at all during late 2016 and throughout 2017.38 It appears that by January 2018, Woolworths became concerned about a potential issue relating to logos appearing on the 2014 and 2015 NERRs.39
[17] It also appears that between 18 January and 2 February 2018, Woolworths informed the Unions and RAFFWU that Woolworths was ceasing bargaining and that Woolworths would issue a new NERR. 40 It is apparent from the correspondence that Woolworths sent to the Unions and to RAFFWU on 29 January 2018, that the reason it was ceasing to bargain was because it had concerns as to the validity of the 2014 NERR.41 On 2 February 2018, Woolworths informed the Unions and RAFFWU of an intention to recommence bargaining.42 Tentative arrangements for a bargaining meeting to occur on 14 February 2018 had been made some time in late January.43 There does not appear to have been any issue raised by the Unions or RAFFWU at this time about this course of action. RAFFWU advised Woolworths on 23 January 2018 of the particular individuals to whom advice about the cessation of bargaining and any new NERR should be directed.44
[18] As at February 2018, Woolworths employed over 107,000 employees in all States and Territories of Australia and operated 972 supermarkets and 37 Metro stores in Australia. 45
[19] Also in February 2018, Woolworths prepared a NERR (2018 NERR) which relevantly provided:
“Woolworths Group Limited and Woolworths South Australia Pty Limited gives notice that it is bargaining in relation to an enterprise agreement (Woolworths National Supermarket Agreement 2018) which is proposed to cover employees that are engaged in the classifications of Retail Employee Grades 1 to 5b (but excluding salaried positions, including but not limited to Team Managers, Team Support, Duty Managers, Assistant Managers and Store Managers) who are employed in supermarket retail businesses operated by Woolworths Group Limited and/or Woolworths South Australia Pty Limited in all States and Territories of Australia.” 46
[20] On 6 February 2018:
• Woolworths sent a document referred to as a “Store Management Action” sheet to each Store Manager of stores operated by Woolworths, 47 which relevantly provided:
“we require all stores to print the NERR document and place on your store’s designated Enterprise Agreement (EA) noticeboard, so that it is visible for all team members. Please ensure that your EA noticeboard is in a prominent position and that it has the capacity to display material . . .”
. . .
“Print and display the NERR document on the EA section of your noticeboard today (06/02). The NERR document should not be amended or covered in any way and must not be removed until the EA is finalised.” 48
• Woolworths sent a document titled “Product Withdrawal Notification” to each Store Manager, which relevantly provided: 49
“As per the “Enterprise Agreement Update” communications on the Store Comms portal this morning (Tuesday 6 February), all stores are required to print and display an Enterprise Agreement information poster and NERR document on the EA section of their noticeboards, and to arrange for letters to be sent to EA team members. We are utilising PWRM to ensure that this has occurred and capture sign off.
Please capture the Store Withdrawal Recall and Confirmation of Action Checklist online within 1 hour of receipt of this notification in PWRM, to confirm that the actions required within the communication have been completed. Enter a quantity of zero within the checklist.” 50
• Each Woolworths’ supermarket and Metro Store recorded displaying the 2018 NERR on at least one noticeboard in the store. 51 Each Woolworths’ supermarket and Metro Store also returned a completed checklist.52
[21] Woolworths says that as at 6 February 2018, there existed a standard process for communicating with employees, including the sending of written communications and materials to Store Managers and the posting of those communications and materials on team noticeboards. 53 I take the process to be no more than a method adopted by Woolworths to communicate with its employees. In short, the method involved sending relevant information to Store Managers and giving instructions to Store Managers about how and where to post the information and to communicate the fact that the information had been posted to employees during regular team huddles. The method also required Store Managers to confirm that they had carried out the instruction. It seems clear from the material in evidence that Store Managers are required inter alia to “[R]eview previous nights comms, comms portal…”54 Woolworths used this process to communicate to employees matters relating to employment, including pay increases.55 It was not the only method it used to communicate with its employees. Noticeboards were located in locations such as lunch rooms and in hallways leading to lunch rooms.56 Woolworths says that noticeboards were, by reason of their location, in a conspicuous location and readily accessible to employees. I accept that this is so.
[22] In February 2018, the SDA and the AWU gave Woolworths a joint log of claims 57 which included the following claims:
“. . .
3. Abolish Level 1 classification.
. . .
11. A sign-on bonus on the date of a positive vote.
. . .
21. Delete clause 11.2, Dress Standards [of the 2012 Agreement] and insert equivalent GRIA uniform provisions (see GRIA clause 20.2, Special Clothing).
. . .” 58
[23] Woolworths agreed, as part of bargaining for the Agreement, to amend the classifications from the seven “Retail Employee” classifications in the 2012 Agreement, to align with six of the eight “Retail Employee” classifications contained in the General Retail Industry Award 2010 (GRI Award). Woolworths also agreed to abolish the “Retail Employee Grade 1” classification 59.
[24] Woolworths also agreed:
• to pay a laundry allowance on top of a base rate of pay (in lieu of an all up rate);
• to use the language of the Retail Award to describe the payment of the laundry allowance; and
• to pay the laundry allowance in respect of preferred dress. 60
[25] Further Woolworths agreed to provide a sign-on payment to eligible team members (with part of the payment to be paid, in the form of gift cards, if the Agreement was made and the balance of the payment to be paid, in the form of a payroll payment, if the Agreement was approved by the Commission. 61
[26] On 11 May 2018 RAFFWU wrote to Woolworths raising concerns in the context of an allegation that Woolworths was not meeting the good-faith bargaining requirements in s.228 of the Act. The particulars of the allegations included concerns about the distribution of “an invalid notice of employee representational rights” and “[N]ot taking all reasonable steps to give the notice, in the form required by the regulations, to each employee of a right to be represented by a bargaining representative”. RAFFWU identified that Woolworths had the means to readily give notices to each employees by way of its online portal. 62
[27] On 17 August 2018, Woolworths and the Unions reached an in principle agreement on the terms of the Agreement. 63
[28] Woolworths established an enterprise agreement website which became accessible to employees on 10 September 2018 (EA Website). 64 Woolworths made available to employees through the EA Website:
• a document titled “Agreement Summary”. 65 The Agreement Summary provided inter alia that:
“After 7 months of negotiations with your bargaining representatives (SDA, AWU, AMIEU and RAFFWU), the proposed enterprise agreement … is now ready for you to read and consider.
We listened to your Voice of Team feedback, and to your bargaining representatives and we hope that the new Agreement delivers on the areas that matter to you, our team members.”
. . .
“Role classifications have been aligned to the Award, with old Grade 1 deleted.”
. . .
“The allowances in the 2012 agreement have been streamlined into one national set of allowances that apply to everyone such as … Laundry Allowance … $6.25 per week for FT … $1.25 per shift for PT and Casuals”. 66
• Something described as an “Agreement Summary” deck 67 which referred to the new classifications contained in the Agreement and stated that they were “aligned” to the GRI Award.68 The Agreement Summary deck also provided:
“. . .
Team members can now tell Woolworths what fund they want to pay into, it just has to be with a company that has provides an approved MySuper product (it doesn’t have to be a MySuper fund though – just a company that has at least one approved MySuper product on offer. 69
. . .
Laundry allowance: Team members required to launder their preferred dress will be paid a laundry allowance. This will apply to all team members except bakers, as Woolworths has their whites professionally laundered for them. The laundry allowance is:
a. $6.25 per week for full-time team members; and
b. $1.25 per shift for part-time and casual team members.
. . .” 70
[29] Again in the context of an allegation that Woolworths was not meeting the good-faith bargaining requirements in s.228 of the Act, RAFFWU wrote to Woolworths on 2 September 2018 raising concerns inter alia that it was unable to properly respond to issues concerning the sign on payments because Woolworths had not provided it with information about the actual basis for the proportional calculation and distribution of the sign-on payment. 71
[30] By correspondence dated 18 September 2018 RAFFWU raised concerns with Woolworths that the SDA was misrepresenting the terms of the proposed agreement by advising employees that the agreement included entitlements to a gift card valued up to $295 and a sign-on package valued up to $1100, and that the laundry allowance would be paid to all staff wearing preferred dress. 72
[31] By correspondence dated 21 September 2018 to RAFFWU, Woolworths replied as follows:
“Your letter raises concerns with information provided by the SDA to team members in relation to Wish Cards, sign-on bonuses and laundry allowance. However, the information is factually correct, and in our view does not constitute a misrepresentation. As per the agreement in principle for a proposed enterprise agreement reached with the SDA, AWU and AMIEU:
1. Woolworths will provide Wish Cards (gift cards) of up to $299 in value to team members. We note that reference to Wish Cards has been removed from the latest draft agreement because the provision is not conditional upon the approval of the agreement by the Fair Work Commission. Woolworths intends to provide Wish Cards to team members before Christmas, regardless of the approval process.
2. Woolworths will be providing sign-on bonuses (or packages as your letter refers to) which (when combined with the Wish Card values) may amount to a total value of $1,100. This issue is addressed in Appendix J of the draft agreement.
3. Woolworths will pay a laundry allowance to all team members, with the exception of bakers who have their uniforms are laundered professionally by Woolworths. This issue is addressed in clause 5 of the draft agreement.” 73
[32] Woolworths met with RAFFWU on 26 September 2018 to discuss aspects of the in-principle agreement. According to Woolworths this meeting allowed RAFFWU the opportunity to raise some proposals. 74 On 1 October 2018, Woolworths wrote to RAFFWU responding to its proposals.75 An issue addressed in the correspondence was the laundry allowance.76 The summary of RAFFWU’s proposal and Woolworths’ response is set out in the correspondence as follows:
“Where Woolworths requires a team member to launder any special uniform, dress or clothing the team member will be paid the following” with “In circumstances where Woolworths does not launder a team member’s clothing then the team member will be paid the following”
…
“We have considered your proposal but we do not agree to amend the clause.
As discussed throughout our negotiations, Woolworths has elected to mirror the wording of the allowance clauses in the GRIA to ensure that we are meeting the minimum award requirements and to maintain consistency with the GRIA.
We have committed in writing to both you and to our team members that Woolworths will pay the laundry allowance to all of our team members (except for trade bakers whose uniforms are laundered by Woolworths) from the date the agreement commences to take effect.” 77
[33] The correspondence addressed RAFFWU’s proposal to insert a clause into the Agreement about the provision of gift cards as follows:
“We have considered your proposal, but we do not agree to this proposal. This is because we have agreed to provide Wish Cards to our team members as a gift before Christmas. The Wish Cards will be provided as long as the vote is successful, but they are not subject to the FWC approving the agreement. It is for this reason that a clause about the Wish Cards is not required to be contained in the agreement.
We have made this commitment in writing to you and to our team members. You can rely on this and our previous letter to give your members comfort that Wish Cards will be provided to team members if there is a successful vote.” 78
[34] The correspondence also addressed RAFFWU’s proposal as to the one-off cash payment as follows:
“Your proposal is that the amount of $805 payable to eligible full-time team members as a one-off cash bonus should be maintained as the benchmark amount and be prorated based on their average hours worked during the period May, June and July 2018 (as opposed to prorated within brackets as currently proposed by Woolworths).
. . .
We have considered your proposal and we do not agree to change our offer in relation to the one-off cash bonus.
The bonus payments we have offered is our best and final offer, and the method we have applied to pro rata the bonus by hours worked within brackets rather than on the basis of average hours worked by each individual team member is reasonable in the circumstances.
This method provides administrative ease in circumstances where we are seeking to make a very large number of payments quickly, and it also provides financial security to the business in terms of budgeting for the payments.” 79
[35] Woolworths also wrote to the SDA on 2 October 2018 reminding it of the importance of accurate statements being made during its briefings of employees. 80
[36] Also on 2 October 2018, Woolworths sent an email to relevant employees informing them of the time, place and method of the vote and directing the employees to the EA Website which contained voting information. 81 Information about the time place and method of the vote was also earlier posted on noticeboards in each Woolworths store on and from 27 September 2018.82 The EA Website was accessible by relevant employees using any device with access to the internet, including desktop computers, tablets and smartphones.83 Information about the time, place and method of voting was also communicated through various information posters and stickers in the lunchroom of each Woolworths store on and from 27 September 2018 and a message about the voting time, place and method was communicated in a message included in relevant employees’ payslips commencing on and from 24 September 2018. 84Relevant employees were advised that they could cast a vote at any time between 8:00 am (AEDT) on 11 October 2018 and 8:00 pm (AEDT) on 22 October 2018 through one of two voting methods either online or by telephone.85
[37] On 6 October 2018, Woolworths displayed a post on a social media platform used by Woolworths, “Google +”. The post referred to the vote to approve the Agreement opening on 11 October 2018 and advised employees to “Check out the information on your stores EA noticeboard”. 86 Voting for the Agreement commenced on 11 October 2018.87
[38] Before voting commenced, Woolworths took a number of steps to explain the terms of the Agreement and the effect of those terms to relevant employees. These steps included the following:
• Through the EA Website relevant employees were provided with links to the following material:
• 'What is an EA?'- a brief description of an enterprise agreement and the bargaining process;
• The Agreement in full;
• 'Key highlights' - a brief summary of some of the main changes in the Agreement;
• 'Your EA Explained' - a link to plain English explanatory materials on each clause and appendices A to K in the Agreement;
• 'Read the FAQs' - a brief summary of answers to frequently asked questions by employees;
• 'Comparison: EA vs the Award'- a detailed analysis of the Agreement against the GRI Award;
• 'My Pay' - wages summaries for full-time, part-time and casual employees reflecting base rates of pay and applicable penalty rates for each classification in the Agreement and an explanation of 'TTR' and 'CTTR';
• 'Schedule of Amendments' - schedule provided a comprehensive summary of all the corrections which had been made to the Agreement since it was first provided on 10 September 2018;
• 'Other relevant material' - a document containing links to the materials incorporated by reference in the Agreement. 88
• The EA Website also contained information about where relevant employees could direct questions or seek further information about the Agreement. 89
• Between 10 September 2018 to 22 October 2018 Woolworths conducted a number of 30 minute information sessions in store about the Agreement at which relevant employees could to attend. 90
• Prior to the information sessions, Woolworths required Store Managers to attend a training session briefing Store Managers on the key terms in the Agreement and the effect of those terms. Store Managers were also given access to a recording of the training session. This training session was conducted to support Store Managers to answer employee queries. 91
• Relevant employees entering the internet voting page, would find links to the EA Website which contained all of the explanatory materials about the Agreement. 92
• Woolworths also posted a video on Google+ of Mr Brad Banducci, Woolworths CEO and Ms Hayley Baxendale, Head of Workplace Relations providing an overview of the key terms included in the Agreement, advising that it contained increased penalty rates, above award rates of pay, better leave provisions, guaranteed annual wage increases, the retention of existing terms providing 15 minute rest breaks and voluntary work on public holidays. Relevant employees were directed to the EA Website, "WOW People Portal" or “SuccessFactors” for access to the Agreement and the explanatory materials. 93
[39] The written material discloses a comprehensive approach taken by Woolworths to explain the terms of the Agreement and the effect of those terms to relevant employees.
[40] Between 11 October to 22 October 2018, Woolworths published various material relating to the Agreement, including the following:
• An “Xpress EA” special edition newsletter which relevantly provided:
“What does it mean for me?
. . .
• Laundry allowance
• One off payments for eligible team members – up to $805 paid in cash
• One off Christmas WISH card for eligible team members – up to $295
. . .
• Superannuation paid into any fund of your choice that offers a MySuper product. 94
• A “Proposed Supermarkets Enterprise Agreement” sheet which relevantly provided:
“So what are the changes?
This is just a summary but includes:
• A one-off payment of up to $1,100 in cash and gift cards (based on hours worked and length of service for existing team members only).
. . .
• A laundry allowance.
. . .
• A clause allowing casuals to convert to part-time.
. . .
• Have your superannuation paid into any fund that offers a MySuper product.” 95
• A video involving the Chief Executive Officer and the Head of Workplace Relations in which it is said:
“The agreement also includes one-off bonus payments for eligible team members. . .” 96
• A message displayed on cash registers which relevantly stated:
“Your EA - one off bonus to eligible team members, above award wages, increased penalty rates, and more. Vote online eavote.com.au or phone 1300 837 024. Don’t miss out – voting closes Monday at 8pm.
• An “Information about Christmas Wish Cards” summary. 97
• An “Information about the One-Off Cash Bonus” summary. 98
[41] Voting to approve the Agreement closed on 22 October 2018. 99 A majority of employees employed at the time who cast a valid vote, voted to approve the Agreement.100 The Agreement was made on that day.101
3. Preliminary Matters
[42] Before turning to consider the issues that are in contention as well as other agreement approval requirements, it is necessary that I say a few things about three matters concerning evidentiary issues that arose in the course of the hearing of the application.
[43] The first concerns a submission by RAFFWU which asked that I draw an adverse inference because of a failure by Woolworths to call certain witnesses who had direct knowledge about various background bargaining meetings, other relevant meetings and the general history of the process leading to the making of the Agreement. In particular the issue arose in the context of the manner of the giving of the 2014 NERRs and the validity of the survey said to have been completed by various managers about the giving of the notices.
[44] In Jones v Dunkel 102 the High Court of Australia explained that an unexplained failure to call a witness or to produce evidence may lead to the drawing of an inference against a party who would be expected to call or rely upon such evidence. The so called “rule” in Jones v Dunkel is that an unexplained failure by a party to give evidence, to call a witness, or to tender documents or other evidence, may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party’s case.
[45] There are several elements that must be satisfied before an adverse inference may be drawn. First, the witness that was not called by a party was a person expected to be called by the party. Secondly, the evidence of the witness not called would shed light on a particular matter in issue. Thirdly, the failure to call the witness is not explained.
[46] It is to be observed, as Woolworths rightly submitted, that the manner in which the 2014 or 2015 NERR was given was not in issue in the proceedings, as identified by the written materials filed. The only issue that was raised by RAFFWU was whether the 2014 and 2015 NERRs contained impermissible content. 103 In such circumstances Woolworths would not have been expected to call any other witnesses save for Ms Kerr who, through a review of documents, was able to give an account of the manner of the giving of the notices.
[47] Woolworths would not have been expected to call Ms Lisa Humphries or Mr Ben Cummins when no issue over whether the 2014 or 2015 NERR was given to employees was raised. The manner of the giving of the 2014 and 2015 NERRs was evidenced through a documented system of directions to Store Managers about placing NERRs on noticeboards and of verifying compliance with the directions. That was evidence that could reasonably be expected to be given by Ms Kerr, who had knowledge of that system, accessed and reviewed the documents, and attached the documents to her witness statement. I accept Woolworths’ submission that it is not necessary for a party to call additional evidence from another witness if the evidence actually called is sufficient to prove the fact. A party would not be expected to call additional evidence in those circumstances. Nor is it necessary for a party to call additional evidence from another witness who could only address a small factual matter when there are a multitude of factual disputes in proceedings.
[48] It is also relevant that there is no contrary evidence filed casting doubt on the giving of the 2014 or 2015 NERR by Store Managers placing them as directed on noticeboards, sending the NERRs to absent employees by mail, or which casts doubt on the accuracy of the verification material about the completion of the survey. It follows that I am not persuaded that, in these circumstances, I should draw any relevant adverse inference from the absence of these witnesses.
[49] The second matter concerns the various objections to the admission of evidence on the ground of hearsay were made by RAFFWU during the course of Ms Kerr’s evidence. The objection is rejected as is the submission that I should attached little weight to the material said to be hearsay. My reasons are as follows. First it is to be observed that the Commission is not strictly bound by the rules of evidence. The material is probative of issues that require determination and should be accorded appropriate weight. All the more so in circumstances of an absence of any probative contradictory evidence casting doubt on the content of the material. Secondly, much of the hearsay objection is founded upon the documents about which Ms Kerr had no direct knowledge because she was not at the time of their creation, an employee of Woolworths. The documents to which objection was taken are, in my view, business records for the purposes of s.69 of the Evidence Act 1995 and are therefore an exception to the hearsay rule. It seems to me clear enough that documents such as the 2014 or 2015 NERR, the written direction that the NERR be placed on the noticeboards and the response survey form part of Woolworths business records, including as part of an electronic file. The records are made and kept by Woolworths in the course of or for the purposes of its business.
[50] The third matter concerns a conversation between Senior Counsel for Woolworths and Ms Kerr while she was giving evidence after cross-examination had concluded. Before having the discussion with Ms Kerr, Senior Counsel for Woolworths had a discussion with Mr Cullinan, Secretary of RAFFWU, in which Mr Cullinan was advised that the discussion would occur. Mr Cullinan urged that I should disregard all of Ms Kerr’s evidence given during re-examination because the discussion was inappropriate and the Commission should send a message that such conduct is inappropriate.
[51] I am not persuaded that is the case. The Australian Bar Association Barristers’ Conduct Rules provide by Rule 72 as follows:
“72. A barrister must not confer with any witness including a party or client called by the barrister on any matter related to the proceeding while the witness remains under cross examination, unless:
(a) the cross-examiner has consented beforehand to the barrister doing so; or
(b) the barrister –
(i) believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;
(ii) has, if possible, informed the cross-examiner beforehand of the barrister’s intention to do so; and
(iii) otherwise does inform the cross examiner as soon as possible of the barrister having done so.” [Emphasis added]
[52] As is clear from the emphasised passage above the prohibition is confined to the period while the witness “remains under cross examination”. Cross examination of Ms Kerr had concluded by the time I adjourned the proceedings for the luncheon adjournment. The impugned discussion occurred during the luncheon adjournment and Mr Cullinan was given the courtesy of being informed beforehand. There is nothing inconsistent with that which occurred and the Bar Association conduct rules which governed the conduct. The evidence given by Ms Kerr during her re-examination is admitted as given.
4. Issues in contention
[53] RAFFWU raises four substantive issues. The first concerns the NERR and is in four parts by which RAFFWU contends:
• Woolworths distributed an invalid NERRs (the 2014 and 2015 NERRs) which contained additional content contrary to s.174(1A) of the Act;
• Woolworths did not cease or could not withdraw from bargaining and so there was not a new notification time. Consequently the 2018 NERR was given well after the time prescribed for the giving of a NERR by s.173(3) of the Act;
• Woolworths failed to all take reasonable steps as required by s.173(1) of the Act to give the 2018 NERR to the relevant employees as the 2018 NERR:
○ was placed “in some stores” on “inconspicuous noticeboards … not readily accessed by employees or unknown to them”; and
○ was not given to relevant employees who were “salaried”.
[54] RAFFWU also raised concerns about the “notification time” in relation to the 2014 NERR and the manner of giving that notice.
[55] Secondly, RAFFWU says that the group of employees covered by the Agreement was not fairly chosen. This is because the Agreement covers some but not all of particular classes of employees. The Agreement does not cover some particular classes of employees if they are “salaried”.
[56] Thirdly, RAFFWU says I cannot be satisfied that the Agreement does not contain any unlawful terms as required by s.186(4) of the Act. This is because the Agreement contains terms that are said to be discriminatory terms as described in s.195. The Agreement is also said to contain an opt-out term which is an unlawful term described in s.194(ba).
[57] Fourthly, RAFFWU says that Woolworths misrepresented the benefit of the Agreement in relation to laundering allowances, sign on payments and gift cards. Presumably this is said to provide foundation for the proposition that there are other reasonable grounds for believing that the Agreement may not have been genuinely agreed to by the relevant employees. It is also said that this misrepresentation impacts on the explanation of the Agreement given to employees as required by s.180(5) of the Act and consequently the quality of satisfaction as to the requirement in s.186(2)(a) by reason of s.188(1)(a)(i).
[58] Fifthly, RAFFWU contends the Agreement does not pass the better of overall test (BOOT) because the Agreement contains a detriment to casual employees in the form of a restriction on the frequency with which a casual employee may apply for conversion to full time or part time employment.
[59] I deal with these and other matters in turn below.
4.1 Invalid NERR
[60] RAFFWU’s first objection relates to multiple NERRs issued by Woolworths and the consequences that are said to follow. As noted in the background, Woolworths first initiated bargaining or agreed to bargain for a proposed agreement on 21 October 2014 and it issued NERRs to various employees in 2014 and 2015. The 2015 NERR was given to “non-salaried employees” employed in “Metro Stores”. These notices were in documents which contained various Woolworths logos. Woolworths accepts that this is the case. 104 As noted already, the giving of the 2015 NERR was necessary because Woolworths wanted to expand the scope of coverage of the proposed agreement. RAFFWU contends that Woolworths took no steps to give employees a valid NERR within 14 days of the notification time, being the date upon which it initiated bargaining. RAFFWU also maintains the 2014 and 2015 NERRs are invalid because they each contained a Woolworths logo. RAFFWU maintains that as the 2014 and 2015 NERRs were not issued in accordance with the Act, the Commission cannot approve the Agreement.105 During oral argument, RAFFWU also maintained that there was no identifiable notification time in respect of the 2014 NERR.106 Given my finding earlier, this contention is rejected.
[61] RAFFWU also contends there is no new notification time in 2018 to support the 2018 NERR as Woolworths did not announce to any employee covered by the Agreement that it had uninitiated bargaining, withdrawn from bargaining or withdrawn its agreement to bargain. 107 RAFFWU says the only statement made by Woolworths pertaining to the cessation of bargaining was in a letter Store Managers were directed to send to employees who were on leave in February 2018, which stated “in order to start a new process, Woolworths is formally ceasing to bargain.”108 The next sentence referenced the new NERR and the restarting of bargaining. RAFFWU submits that the purported cessation of bargaining was communicated in the correspondence after the alleged commencement of a new bargaining process and that there is no evidence of this correspondence having been sent to any employee.109 RAFFWU contends there was no other communication sent to employees and therefore there was no withdrawal from bargaining, let alone a genuine withdrawal. RAFFWU also submits that there was no direction given by Woolworths to remove the invalid NERRs from any workplace.110
[62] RAFFWU submits that the 2018 NERR is invalid as a result. RAFFWU also contends that Woolworths cannot simply un-initiate bargaining. 111 Bargaining had been initiated and the notification time had occurred. It says “the only mechanism available to an employer is to make an agreement”112 and Woolworths did so on 22 October 2018 after an “invalid” NERR was issued in 2014. RAFFWU says on this basis alone, the Commission cannot approve the Agreement.113
[63] Before dealing with these contentions it is necessary to say something about the circumstances in which a NERR will be invalid and thus not support the making and/or approval of an enterprise agreement. That which constitutes the document that is a NERR is a question of fact. 114 An employer may supply other information to employees at the same time as the employer issues a NERR, provided the information does not form part of the notice.115 An employer may issue more than one NERR over the course of bargaining.116 An employer that does not engage in bargaining for a prolonged period of time might be said to have withdrawn from bargaining and may subsequently initiate bargaining afresh.117 An employer that discovers that it has issued an invalid NERR may cease bargaining with its employees and may initiate bargaining afresh.118 When an employer seeks, or the bargaining parties have agreed to broaden the scope of coverage of a proposed agreement, a further NERR may also need to be issued. This is because the employer will be initiating bargaining or agreeing to bargain for a proposed agreement covering employees in the broader group.
[64] As already noted, Woolworths accepts that that both the 2014 and 2015 NERRs contained a relevant Woolworths’ logo. It is arguable that this is a triviality with which s.174(1A) might not be concerned. I will return to this later in this decision.
[65] On the evidence, before 2 February 2018 there was a lengthy period (over 15 months) during which there was no apparent bargaining activity for the proposed agreement to which the 2014 and 2015 NERRs related. There were several circumstances which contributed to the cessation of bargaining during this period. These circumstances included the commencement of the four yearly modern review of the GRI Award; the decision of a Full Bench of the Commission to set aside the approval of the Coles Store Team Enterprise Agreement 2014-17 on the basis that it did not pass the BOOT; 119 the decision of a Full Bench of the Commission in relation to weekend and public holiday penalty rates in a number of hospitality and retail awards including the GRI Award;120 and the subsequent judicial review of that decision by a Full Court of the Federal Court.121
[66] The bargaining parties had stopped bargaining. In these circumstances I do not accept that it was not open to Woolworths to determine it no longer wished to bargain for the proposed agreement. Moreover I do not accept that in the circumstances where it is apparent that the 2014 and 2015 NERRs which underpinned the proposed agreement that was the subject of bargaining might not be valid, that Woolworths could not stop bargaining. If the 2014 and 2015 NERRs were not valid the proposed agreement to which the NERRs related could never be made nor approved. Woolworths would be locked into perpetual bargaining without the possibility of an enterprise agreement being approved by the Commission and commencing operation. Bargaining under the scheme of the Act is undertaken for a proposed agreement with a view to the proposed agreement ultimately becoming an agreement that is approved by the Commission.
[67] In the face of that which Woolworths perceived to be an insurmountable procedural irregularity in the form of a non-compliant NERR, the scheme of the Act should not be construed so that in effect once an employer has agreed to bargain or has initiated bargaining, the employer can never no longer agree to bargain or cannot withdraw from bargaining. Such a construction would make an already difficult to navigate scheme unworkable. To the extent that it may be suggested that the capacity to withdraw from bargaining might be abused 122, that suggestion is answered in two ways. First, the Act makes provision for various forms of redress including bargaining orders and majority support determinations.123 Secondly, insofar as the identified abuse might be said to be used in a manner that would thwart a bargaining representative’s capacity to obtain a protected action ballot order, that concern is misguided since the precondition to obtaining a protected action ballot order is inter alia the existence of an identified negotiation time124, not any statement by an employer that it no longer wishes to bargain or on the giving of a NERR by the employer.125
[68] On the evidence Woolworths informed the Unions and RAFFWU between 18 January and 2 February 2018, that it was ceasing bargaining. Woolworths did so because of concerns over an invalid NERR. Neither the Unions nor RAFFWU demurred. I consider that Woolworths was entitled to do so in the circumstances and as a consequence the 2014 and 2015 NERRs ceased to be operative and had no application in relation to the proposed agreement, which became the Agreement, when bargaining which Woolworths initiated on 2 February 2018, commenced.
[69] If I am wrong about this, it is not fatal to the approval of the Agreement. In my view, in these circumstances, Woolworths is entitled to rely upon the 2014 and 2015 NERRs. The mere presence of a company logo or company letterhead on a document containing a NERR does not in my opinion invalidate the NERR. I note there are conflicting first instance decisions on the matter. 126 I also note that the Explanatory Memorandum to the Fair Work Amendment (Repeal of Four Yearly Review and Other Measures) Bill 2017, in respect of the amendment to s.188 of the Act, gives as an example of a minor procedural or technical error “the inclusion of the employer’s company logo or letterhead on a Notice”.127 It does not follow however that merely because this example is cited in the explanatory memorandum that the inclusion of a logo or company letterhead renders invalid a NERR. The example is merely responsive to the decisions noted earlier.
[70] Section 174(1A) of the Act is concerned with the content of the NERR. It is not concerned with the colour, design or format of the document on which an employer chooses to print the NERR. With all due respect to those who have held to the contrary, I do not consider that printing at NERR on a company letterhead or on paper containing a company logo invalidates the notice. Neither the letterhead nor the logo form part of the NERR. Neither a company logo nor letter head is additional content. Neither alters in any way the NERR as set out in the prescribed form. The inclusion of a NERR on a document that carries only a company letterhead or its logo is in every sense a triviality and one with which s.174(1A) is not concerned.
[71] If I am wrong in this conclusion, I would conclude the Agreement has nevertheless been genuinely agreed to by the employees covered by the Agreement because the content of the Woolworths’ logo in the 2014 and 2015 NERRs is in each case a minor procedural or technical error which was not likely to have disadvantaged the employees covered by the Agreement in relation to the requirements in s.173 and s.174 of the Act. 128
[72] The inclusion of Woolworths’ logo in both the 2014 and 2015 NERRs are in my view minor procedural or technical errors because though the inclusion of the relevant NERR in a document containing Woolworths logo was a deliberate act, the NERR included the logo erroneously in the sense that it was doubtless thought or not considered that such inclusion would not invalidate either notice. There is no suggestion that Woolworths intended to invalidate the notices or to mislead employees by including its logo in the 2014 or 2015 NERR. In this sense it was a minor technical error because the inclusion of the logo in the NERRs was not undertaken for the deliberate purpose or to deliberately seek to mislead any employee in relation to an employee’s right to be represented in bargaining. All of the other requirements as the content of a NERR are contained in both the 2014 and 2015 NERRs. There is no other content. There is also no suggestion that any employee was unable to appoint, or did not know that he or she could appoint a bargaining representative by reason of the NERR being printed on a document containing Woolworths’ logo. It is for these reasons employees covered by the Agreement are not likely to have been disadvantaged by reason only of the NERR having been printed on a document which also contains Woolworths’ logo.
[73] It follows that RAFFWU’s objection on this ground is rejected.
[74] It is clear from the evidence earlier noted that Woolworths gave the 2014 NERR to relevant employees between 21 and 27 October 2014 by a combination of placing the notice in clear view of employees on a noticeboard in the store and on at least one other prominent location within the store. 129 The 2014 NERR was also dispatched by post to the home address of any employee who was on various forms of leave or was not rostered over the two weeks following 21 October 2014. These steps are the kind contemplated for the purposes of giving a notice set out in subregulation 2.04(7) of the Fair Work Regulations 2009 (FW Regulations). Given my earlier finding in relation to the notification time I am satisfied that the 2014 NERR was given to relevant employees as required by s.173(1) within the period specified in s.173(3). I will later deal with the import of giving a notice in accordance with subregulation 2.04(7) of the FW Regulations.
[75] On 11 November 2015, Woolworths advised non-salaried employees employed in its Metro Stores that it was proposing to expand the coverage of the proposed agreement to cover these employees. 130 It gave the 2015 NERR to the relevant employees using substantially the same method as noted in the preceding paragraph.131 It is not in contest that the 2015 NERR was validly given and I am so satisfied.
4.2 The 2018 NERR
[76] RAFFWU’s alternative or further objection relates to the manner in which the 2018 NERR was “given” to relevant employees by Woolworths. RAFFWU contends the Commission cannot be satisfied that the requirements of the Act were met. 132 That is because Woolworths did not take all reasonable steps to give the 2018 NERR to relevant employees employed at the notification time for the agreement as required by s.173(1). There are two bases for this contention.
[77] First, RAFFWU says that the 2018 NERR was not given to certain “salaried employees” because Woolworths contends that these employees are not covered by the Agreement. RAFFWU contends that salaried employees are covered by the Agreement. 133
[78] Secondly, the RAFFWU contends that Woolworths did not take all reasonable steps to give the 2018 NERR to relevant employees because Woolworths did not display the 2018 NERR in a conspicuous location. Its evidence is that Woolworths does not use the “team room poster board” for communications between the employer and employees. It submits that the board is not a known place for the display of communications. 134 RAFFWU submits that:
“the modern supermarket workplace does not use poster boards to communicate important information to staff. Many poster boards are in areas not frequented by staff. Many stores do not require staff to “clock on” in team rooms. Important information is communicated in person, or by electronic means. Often [Woolworths] will use a combination of in person communication and electronic communication.” 135
[79] RAFFWU relies on the statement of Mr Loukas Kakogiannis, an employee of Woolworths, to seek to make good its point. 136 Mr Kakogiannis’ evidence was that simple daily messages are provided to him through a manager verbally and in person.137 Mr Kakogiannis says that he expects all required communication from Woolworths to either be communicated to him in person by a manager or through the online mechanisms regularly used by Woolworths (SuccessFactors and WOW People).138 As to the team room poster board, Mr Kakogiannis states that as a supervisor, he has never directed other staff to read printed notices on the team room poster board, and nor has he been directed by a manager to do so.139 He says that he had not seen the 2018 NERR in his store before being asked by a representative of RAFFWU to locate it. Mr Kakogiannis says that he located the 2018 NERR on 26 February 2018.140 Mr Kakogiannis says that in speaking with his co-workers, he is aware that many staff do not use the team room at his store. He states that employees clock-on on the shop floor, accessing the toilets does not require entering the team room, and that his store does not conduct team meetings within the team room.141 Mr Kakogiannis says “[I]t did not occur to me that my employer would give me a notice by putting it on this board… I have never used the board to receive such information”.142
[80] RAFFWU contends that a failure to give a notice is exacerbated by placing it in an inconspicuous location not known by employees as places for such communications. 143
[81] As earlier noted, on 2 February 2018, Woolworths informed the Unions and RAFFWU that it intended to recommence bargaining. On this date, Woolworths initiated bargaining for the proposed agreement. This was the notification time for the proposed agreement within the meaning of s.173(2)(a) of the Act. On 6 February 2018, Woolworths gave the 2018 NERR to relevant employees employed at the notification time in the manner earlier described.
[82] The requirement in s.173(1) of the Act is to take “all reasonable steps to give” a NERR to relevant employees employed at the notification time. The evident purpose of the provision is to inform an employee who will be covered by the proposed agreement of particular representational rights in relation to bargaining for the proposed agreement. It is also a condition precedent to asking employees to vote to approve an agreement. 144 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.145
[83] Section 173(5) allows for regulations to be made that prescribe how NERRs may be given. Regulation 2.04 of the FW Regulations prescribes various means by which an employer for a proposed enterprise agreement may give relevant employees a NERR. That regulation provides:
“REG 2.04 Notice of employee representational rights--how notice is given
(1) For s.173(5) of the Act, each of the following is a manner in which the employer for a proposed enterprise agreement may give employees who will be covered by the agreement notice of the right to be represented by a bargaining representative for the agreement.
(2) The employer may give the notice to the employee personally.
(3) The employer may send the notice by pre-paid post to:
(a) the employee's residential address; or
(b) a postal address nominated by the employee.
(4) The employer may send the notice to:
(a) the employee's email address at work; or
(b) another email address nominated by the employee.
(5) The employer may send to the employee's email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer's intranet.
(6) The employer may fax the notice to:
(a) the employee's fax number at work; or
(b) the employee's fax number at home; or
(c) another fax number nominated by the employee.
(7) The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee.
(8) Subregulations (2) to (7) do not prevent the employer from using another manner of giving the notice to the employee.” 146
[84] The obligation to give the NERR is not an absolute one. It is expressed, as already observed, in qualified terms. The requirement is for the employer to take all reasonable steps to give the NERR to each relevant employee. Section 173(5) allows for regulations to be made which may prescribe how notices under subsection (1) may be given. Regulation 2.04 of the FW Regulations prescribes a number of ways in which an employer may give the NERR.
[85] One of the ways identified for giving a NERR is prescribed as follows:
“The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee” 147
[86] If an employer gives the NERR using this method, the employer will have satisfied the obligation to take all reasonable steps to give the NERR. That is because the employer will have given the NERR by using the method. Of course using this method will only be taken as having given the notice in respect of relevant employees who are at work during the relevant period within which the employer is required to give the notice following the notification time. But in respect of such employees the employer will have achieved the giving of the notice and in respect of these employees there is also no requirement in s.173(1) for a NERR, which has already been given by the employer, to be given again.
[87] As to the relevant employees to whom the notice must be given who are not in attendance at work during the relevant period, some other step or steps will need to be taken.
[88] I consider that by using one of the methods specified in regulation 2.04, an employer will satisfy the requirement in respect of any employee to whom has been given notice by the relevant means. As I have noted employees to whom a notice is not given or is unable to be given notice in that way will need to be given notice by another means which are limited to such means as are reasonable steps.
[89] When a notice is given using a method prescribed it is in my view unnecessary to show that that each employee to whom the notice was given using that method receivedthe NERR or read it. It is only necessary to show that an employer undertook the relevant method for giving the notice specified in the FW Regulations.
[90] The evidence earlier set out establishes that as at 6 February 2018, Woolworths used noticeboards as part of its standard communication process with employees. Communication through the use of noticeboards informed employees of pay increases, exhibited copies of applicable enterprise agreements and facilitated the display of union notices. The evidence establishes that Woolworths used noticeboards in 2011 to give a NERR to relevant employees in connection with the proposed agreement that became the 2012 Agreement. Woolworths used the noticeboards to give to relevant employees the 2014 and 2015 NERRs. Ms Kerr also gave evidence that other related companies in the Woolworths Group used noticeboards to give notices of NERRs to employees. 148
[91] The evidence also establishes that in February 2018, Woolworths gave a direction to Store Managers to display the 2018 NERR on noticeboards in prominent locations and the Store Managers or those instructed by them completed a checklist to confirm that there had been compliance with the direction. Ms Kerr gave evidence, based on inquiries of large supermarkets and Metro Stores across multiple States and Territories conducted between 11 and 14 December 2018, that many stores displayed the 2018 NERR on noticeboards or locations near the finger scanner used by team members to sign on and sign off for each shift and some stores placed the 2018 NERR on the lunch room table or on the wall in the team room or the hall ways approaching the team room. 149
[92] Given Woolworths history of use of noticeboards as a form of communication with its employees it seems to me that it was appropriate for Woolworths to use noticeboards as the vehicle through which it would give relevant employees the 2018 NERR. That notice was displayed in conspicuous locations at the workplace that were known to relevant employees and these were readily accessible to employees as is set out in evidence. It follows that I consider that Woolworths displayed the 2018 NERR in a manner prescribed by subregulation 2.04(7) of the FW Regulations and so gave the 2018 NERR to team members for the purposes of s.173(1) of the Act. That Mr Kakogiannis and perhaps some other employees did not see the 2018 NERR when it was given, or that they might not have read it, does not detract from the fact that it was validly given by Woolworths using the method prescribed. This step satisfied subregulation 2.04(7).
[93] Ms Kerr’s statutory declaration also sets out the steps Woolworths took to give the 2018 NERR to employees absent from the workplace. According to the statutory declaration Store Managers were directed to send the 2018 NERR “by post to the home address of every relevant team member on any form of leave or not rostered over the following two weeks (including, annual leave, long service leave, long-term sick leave, long-term workers compensation, unpaid leave, parental leave and long-term absence).” 150 As already noted Store Managers or those instructed by them completed a checklist to confirm that there had been compliance with the direction.151 This step satisfied subregulation 2.04(3).
[94] RAFFWU contends that Woolworths ought to have taken further or additional steps, for example by placing information on a website and some of the other steps that Woolworths has taken in relation to discharging obligations to make available and explain the terms of the Agreement and to notify employees of the of voting arrangements.
[95] The reasonableness of the steps taken and the question whether further steps ought to have been taken is to be determined by the factual circumstances faced by an employer at the time the obligation to give a NERR arose. An employer need not take every step available to it. In assessing whether Woolworths took all reasonable steps to give the 2018 NERR to relevant employees it is relevant to consider that it took the steps prescribed and that the number of employees in Woolworths business, which as earlier noted was in excess of 107,000 in February 2018. It is also relevant that the obligation must be discharged within 14 days of the notification time. I therefore consider that by using the methods prescribed as set out in the evidence, Woolworths took all reasonable steps to give relevant employees employed at the notification time the 2018 NERR.
[96] It follows that RAFFWU’s objection on this basis is rejected.
[97] As to whether the 2018 NERR ought to have been given to certain employees who are “salaried employees”, that issue is relevantly related to the question whether the group of employees covered by the Agreement was fairly chosen. I deal with that issue shortly. In any event it is clear that the number of “salaried” employees are excluded from the Agreement’s coverage. This is also clear from the scope of the proposed agreement described in the 2018 NERR. The obligation in s.173(1) is to give a NERR to employees employed at the notification time who “will be covered by the Agreement”. An employee who will not be covered by the Agreement need not be given a notice.
[98] In summary I conclude as follows:
a. The 2014 and 2015 NERRs were valid notwithstanding they were printed on a document containing Woolworths logo;
b. The 2014 and 2015 NERRs were given in accordance with the requirements in s.173 of the Act;
c. If I am wrong about the validity of the 2014 or 2015 NERR then insofar as validity affects genuine agreement, I consider the Agreement has nevertheless been genuinely agreed to by the employees covered by the Agreement because the existence of the Woolworths’ logo in the documents containing the 2014 and 2015 NERRs is in each case a minor technical error which was not likely to have disadvantaged the employees covered by the Agreement in relation to the requirements in s.173 and s.174 of the Act;
d. For the reasons stated I consider there was a new notification time in relation to the proposed agreement on 2 February 2018;
e. The 2018 NERR was a valid notice given as required by s.173 of the Act; and
f. If I am wrong about the invocation of a new notification time in relation to the 2018 NERR, then bargaining was continuing and the 2014 and 2015 NERRs support the Agreement.
4.3 Fairly chosen
[99] I turn next to consider whether the group of employees to be covered by the Agreement was fairly chosen. This was an issue that I raised with Woolworths during the directions hearing on 16 November 2018. Section 186 of the Act are relevantly provides:
“186 When FWA must approve an enterprise agreement--general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
…
Requirement that the group of employees covered by the agreement is fairly chosen
(3) FWA 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, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.”
[100] The coverage clause of the Agreement is as follows:
“1.2. Agreement coverage
a. This Agreement covers Woolworths and its employees who are employed in Woolworths retail supermarket operations in the classifications described in clause 3.3 and Appendix A of this Agreement (team members).
b. This Agreement does not cover Woolworths employees who work in salaried positions, including (but not limited to): salaried Team Managers, salaried Team Support, salaried Duty Managers, salaried Assistant Store Managers and salaried Store Managers.” 152
[101] Clause 3.3 of the Agreement deals with classifications and makes provision for “Team Manager” and “Duty Manager”.
[102] RAFFWU says the Agreement should not be approved as the group of employees covered by it was not fairly chosen. 153 It says this is so because employees engaged to perform the same work in the same store are able to be included in the group or excluded from the group based only on the method of contracted payment and that the same employee, performing the same work, could “fall in and out of coverage based on whether their contractual terms provide for a wage or a salary at any given time”.154
[103] RAFFWU submits that the group of employees chosen by Woolworths is not geographically, operationally or organisationally distinct, which s.186(3A) of the Act requires the Commission to consider. It submits that upon examination of the position descriptions for each of the equivalent roles they are identical. For example the position description of a salaried Duty Manager (not covered by the Agreement) and a non-salaried Duty Manager (covered by the Agreement) are identical. 155
[104] In addition, RAFFWU contends that the Agreement’s exclusion of salaried employees “is expressly counter to the legislative scheme” and that the Agreement, through its use of non-salaried coverage, establishes unlawful opt-out terms prohibited by s.168(4) informed by s.194(ba). RAFFWU submits that s.194(ba) was specifically enacted by the Parliament to prohibit such an exclusion. 156 Section 194(ba) is as follows:
“194 Meaning of unlawful term
A term of an enterprise agreement is an unlawful term if it is:
…
(ba) a term that provides a method by which an employee or employer may elect (unilaterally or otherwise) not to be covered by the agreement; …”
[105] RAFFWU contends that the Agreement cannot be approved by the Commission as it contains an unlawful term as described by s.194 of the Act.
[106] It is first necessary to make some observations about the fairly chosen requirements in ss.186(3) and (3A) of the Act. The expression “the group of employees covered by the agreement” in s.186(3) refers to the whole class of employees to whom the agreement might in future apply, not the group of employees who actually voted on whether to make the agreement. 157 The reference in both ss.186(3) and (3A) to whether “the group of employees covered by the agreement was fairly chosen” is, in the case of an enterprise agreement, made with a group of employees, particularly a small group, a reference to a choice made by the employer.158 A decision by a Commission Member as to whether the Member is satisfied that the group of employees covered by an agreement was “fairly chosen” involves a degree of subjectivity and the exercise of a very broad value judgment, and may be characterised as a discretionary decision.159 The time for assessing whether the group of employees was fairly chosen is, relevantly for the purposes of the Agreement, the time the bargaining parties agreed on the scope or coverage of the proposed agreement or the time the bargaining parties commenced bargaining on a shared assumption as to scope.160
[107] Once it has been established that an agreement does not cover all of the employees of the employer, the Commission will consider whether the group chosen is geographically, operationally or organisationally distinct. 161 Account must be taken of and weight given to whether the group chosen is geographically, operationally or organisationally distinct.162 Relevant to the issue of organisational distinctness, is the manner in which the employer has organised its enterprise to conduct its operations, the performance of duties that are qualitatively different and the existence of organisation structures.163 However it is not necessary for the Commission to find that the proposed coverage represented a geographically, operationally or organisationally distinct group.164 That the group of employees covered by the agreement is not a geographically, operationally or organisationally distinct group is not determinative of the question whether the group of employees was fairly chosen.165 In such circumstances the question might be determined by asking whether there is an objective, as opposed to an arbitrary, discriminatory or subjective, basis for the group chosen to be covered by the agreement.166
[108] Relevant also is the question whether there are legitimate business reasons for the group chosen, 167 as is the question of the coverage of previous enterprise agreements relating to the employer.168 It is also evident that there is no singular way in choosing fairly the group of employees to be covered by the enterprise agreement.169 Subject to the overriding qualification of “fairly”, the range of relevant considerations in assessing whether a group was fairly chosen is neither set out nor limited by s.186 of the Act. Considerations that are relevant is to be determined by reference to the objects of the Act and the evident purpose of the fairly chosen requirement in s.186 understood in the context of the enterprise agreement making and bargaining scheme for which the Act makes provision. It is for this reason that the Commission has considered relevant issues such as the coverage provisions of antecedent agreements which cover the same group of employees as well as the choice made by employees who are members of the group that is covered by the agreement.170
[109] The evidence discloses that in February 2018, the SDA and the AWU gave to Woolworths a joint log of claims. The log of claims sought abolition of “Retail Employee Grade 1” from any agreement made, but did not seek to vary the classifications in the proposed agreement or the coverage of the proposed agreement. The evidence also establishes that the AMIEU did not seek to vary the coverage of the proposed agreement. 171 RAFFWU maintains that it was seeking an agreement that covered all supermarket workers. Although it did not make a written claim about coverage of the proposed agreement, RAFFWU maintained that the issue of coverage was raised by it during bargaining meetings and that its desire for such an agreement was evident through its appointment as a bargaining representative by at least one “salaried manager” employed in Queensland.172It is not suggested that the group of employees chosen is geographically, operationally or organisationally distinct from for example “salaried duty managers”. That this is not the case is relevant but not decisive. Having regard to the history of coverage earlier discussed I do not consider this to be a significantly weighty consideration speaking against a conclusion that the group of employees covered by the Agreement was fairly chosen. It is also evident that the coverage of the Agreement reflects the coverage of enterprise agreements made and approved in 2010 and 2012. In approving the 2009 and 2012 Agreements it must be accepted that the Member of the Commission approving the agreements was then satisfied that the group of employees was fairly chosen. There is no apparent undertaking that operated in relation to either agreement which would suggest that there was any concern that the group of employees was not fairly chosen. The Unions that are bargaining representatives for the proposed agreement bargained on the basis of the coverage contained in the Agreement and though RAFFWU might have been seeking a broader coverage there is no evidence which suggests, apart from the objection it now takes, that it considered the group expressed in the coverage to be anything other than fairly chosen. No correspondence was produced by RAFFWU to suggest otherwise. There is no evidence that coverage of the proposed agreement occupied any significant time during bargaining or that it was a seriously contentious issue between Woolworths and the various bargaining representatives during bargaining. That coverage was an issue agitated by one bargaining representative does not on its own mean that the scope contained in the Agreement, and on which all other bargaining representatives settled, covers a group of employees that was not fairly chosen.
[110] Moreover as Ms Kerr’s evidence discloses, the reason for the exclusion of salaried positions was traditional specification of coverage within Woolworths. It was not to manipulate the voting for the 2018 Agreement. 173 There is no suggestion that exclusion of salaried positions undermined collective bargaining, nor is there evidence of any impact on collective bargaining by the excluding salaried positions from coverage by the Agreement.
[111] Overall given the history of agreement coverage, the involvement in bargaining of professional and experienced bargaining representatives and the absence of any evidence of manipulation, I consider that notwithstanding that the group covered by the Agreement is not geographically, operationally or organisationally distinct, the group of employees covered by the Agreement was nevertheless fairly chosen.
4.4 Objectionable and unlawful terms
[112] Turning next to the issue whether a number of impugned terms of the Agreement (including whether in combination, the exclusion of certain salaried positions from coverage of the Agreement and the inclusion of the equivalent non-salaried positions), are unlawful terms.
[113] As noted earlier, RAFFWU contends that the Agreement contains unlawful terms and should therefore not be approved. In addition to the coverage clause of the Agreement, RAFFWU contends that clause J.1 of the Agreement is a discriminatory term within the meaning of s.195 of the Act, and therefore an unlawful term which renders the Agreement unable to be approved by s.194 of the Act. 174 Clause J.1 of the Agreement is as follows:
“J.1 One-Off Bonus Payment
J.1.1 Eligible team members will be entitled to a one-off bonus payment which will be payable as a cash bonus added to the team member’s pay (less applicable taxes) as set out in this clause.
J.1.2 In order to be eligible to receive the one-off bonus, team members must:
(a) have been employed by Woolworths as of 1 July 2017;
(b) remain employed by Woolworths as at 22 October 2018; and
(c) be employed by Woolworths on the payment date.
J.1.3 The one-off bonus will be paid no later than 14 days from the date of the approval of this Agreement by the FWC, however Woolworths may make the payment earlier if it chooses.
[189] The requirements in ss.187(5) and (6) have no application as the Agreement is not a greenfields agreement.
[190] Section 202 of the Act requires an enterprise agreement to include a flexibility term that enables an employee and his or her employer to agree to an arrangement varying the effect of the agreement in relation to the employee and the employer, in order to meet the genuine needs of the employee and the employer. Such a term must comply with the content requirements set out in s.203. Clause 23 of the Agreement contains a flexibility term. Clause 23.2(e)(i) provides that Woolworths or a team member may terminate individual flexibility agreement by giving no more than 13 weeks’ written notice to the other party to the arrangement. Although this clause is consistent with the individual flexibility provision in the GRI Award prior to the amendment made on 1 November 2018, it is inconsistent with the content requirement set out in s.203(6)(a). That provision requires that a flexibility term must require an employer to ensure that any flexibility arrangement agreed to under the term must be able to be terminated by either the employee, or the employer, giving written notice of not more than 28 days.
[191] Woolworths proffered an undertaking which is contained at paragraph 5 of Annexure JTK – 40 to Exhibit 2 in order to rectify the issue of notice. Unfortunately as s.190 makes clear, the undertakings provisions only apply if the Commission has concerns that the agreement does not meet the requirements set out in ss.186 and 187 of the Act. Neither of these sections deal with or make reference to the requirement that there be a flexibility term in the Agreement. An undertaking to rectify deficiencies in a flexibility term is not capable of acceptance. The Act sets out the consequence of their not being a flexibility term as required by s.202(1). As s.202(1)(b) makes clear the flexibility term that is required to be included in an agreement is one that, inter alia complies with s.203. The flexibility term contained in clause 23 of the Agreement does not comply with that section in the manner identified. As a consequence pursuant to s.202(4), the model flexibility term is taken to be a term of the Agreement.
[192] Section 205 requires that an enterprise agreement include a term that requires an employer to which the agreement applies to consult with employees about a major workplace change that is likely to have a significant effect on the employees. The term must also require consultation about a change to an employee’s regular roster or ordinary hours of work, and must allow for the representation of employees for the purposes of the consultation.
[193] Clause 21 of the Agreement sets out a consultation term. Clause 9.2 of the Agreement also deals with consultation about changes to the standard roster. Because of the reference to consultation about “the standard roster” it appears that this provision is limited to consultation with full-time and part-time employees. 247 Casual employees appear not to be covered by the obligation to consult about regular roster or ordinary hours of work changes. Consequently the consultation terms do not comply with the requirement in s.205(1A) in respect of casual employees. Woolworths proffered an undertaking in paragraph 4 of Annexure JTK – 40 to Exhibit 2 in order to address the issue. As with undertakings concerning flexibility term, an undertaking cannot be accepted in respect of a deficient consultation term. The Act sets out the consequence. As the consultation term of the Agreement does not meet the requirements in s.205(1A), the model consultation term is taken to be a term of the Agreement.
6. Conclusion
[194] Woolworths has provided written undertakings. A copy of the undertakings is attached in Annexure A. I have accepted the undertakings. As I have already noted I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement and the views of known bargaining representatives were sought.
[195] With the undertakings attached to this decision and marked as Annexure A and for the reasons stated, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement is approved.
[196] For the reasons earlier stated, pursuant to s.201(1) the model flexibility term under subsection 202(4) and the model consultation term under subsection 205(2) are taken to be terms of the Agreement.
[197] Each of the SDA, AMIEU and AWU is an employee organisation that has given notice under subsection 183(1) that the organisation wants the Agreement to cover it. Accordingly, pursuant to s.201(2) I note that the Agreement covers the SDA, AMIEU and AWU.
[198] The date of the approval is the 7 January 2019 and in accordance with s.54, the Agreement will operate from 14 January 2019. The nominal expiry date of the Agreement is 6 January 2023.
DEPUTY PRESIDENT
Appearances:
HJ Dixon SC and AB Gotting of Counsel for the Applicant.
D Bruno of Counsel for the Shop, Distributive and Allied Employees Association.
J Cullinan for the Retail and Fast Food Workers Union Incorporated.
K Rogers for The Australasian Meat Industry Employees Union.
J Harding for The Australian Workers’ Union.
Hearing details:
2018.
Sydney:
December 19, 20.
Submissions:
Applicant, dated 14 December 2018
Retail and Fast Food Workers Union Incorporated, dated 7 December 2018
Shop, Distributive and Allied Employees Association, dated 14 December 2018 and 19 December 2018
Annexure A
1 [2010] FWAA 3820
2 Woolworths National Supermarkets Agreement 2009 - Clause 1.2.1(b)
3 Ibid clause 1.7.3.4 in respect of NSW and ACT; clause 1.7.4.5 in respect of QLD; and clause 1.7.6.6 in respect of SA and NT
4 Ibid clause 11.12.2
5 Ibid clause 11.12.1
6 Exhibit 2 at [88]
7 [2012] FWAA 9179
8 Woolworths National Supermarkets Agreement 2012 – Clause 1.2.1(b)
9 Ibid clauses 1.7.5 and 1.7.7
10 Ibid clauses 1.71, 1.7.2, 1.7.3, 1.7.5, 1.7.6 and 1.7.7
11 Ibid clause 11.12.2
12 Ibid clause 11.12.1
13 Exhibit 2 at [22]
14 Ibid; Transcript at PN142-PN145; Transcript at PN 1203
15 Exhibit 2 at Annexure JTK – 4
16 Ibid
17 Ibid
18 Ibid
19 Exhibit 2 at [25] and Annexure JTK – 4
20 Exhibit 2 at [25]
21 Ibid, and Annexure JTK – 5
22 Exhibit 2 at Annexure JTK – 5
23 Exhibit 2 at [26] – [27]
24 Maritime Union of Australia v Maersk Crewing Australia Pty Ltd[2016] FWCFB 1894 at [34]; Transport Workers' Union of Australia v Hunter Operations Pty Ltd[2014] FWC 7469 at [52]
25 Maritime Union of Australia v Maersk Crewing Australia Pty Ltd[2016] FWCFB 1894 at [35]; Transport Workers' Union of Australia v Hunter Operations Pty Ltd[2014] FWC 7469 at [50]
26 Maritime Union of Australia v Maersk Crewing Australia Pty Ltd[2016] FWCFB 1894 at [35]; Transport Workers' Union of Australia v Hunter Operations Pty Ltd[2014] FWC 7469 at [53]
27 Maritime Union of Australia v Maersk Crewing Australia Pty Ltd[2016] FWCFB 1894 at [35]
28 RAFFWU Outline of Submissions dated 7 December 2018 at [6] where second appearing
29 Exhibit 2 at [23], [24] and [25]; Annexures JTK-3, JTK-4 and JTK-5; Exhibit 9 at Annexure LK-3
30 Ibid
31 Exhibit 2 at [26]
32 Woolworths National Supermarkets Agreement 2012 - clause 1.3.1; [2012] FWAA 9179 at [9]
33 Exhibit 2 at [29]
34 Ibid at [30] – [32]; Annexures JTK-6, JTK-7 and JTK-8; Exhibit 9 at Annexure LK-3
35 Exhibit 2 at [33]
36 Ibid at [40]
37 Ibid at [34]
38 Ibid at [35]
39 Ibid at [41]
40 Ibid at [42], [43] and [45]; Annexure JTK-10
41 Ibid at Annexure JTK-10
42 Ibid at [46]; Annexure JTK-11
43 Exhibit 3; Transcript at PN305-PN306
44 Exhibit 3
45 Exhibit 2 at [74]
46 Ibid at [48]; Annexure JTK-12
47 Ibid at [76]; Annexure JTK-21
48 Ibid at Annexure JTK-21
49 Ibid at [78]; Annexure JTK-23
50 Ibid at Annexure JTK-23
51 Ibid at [78] and Annexure JTK-23; Exhibit 1 at Question 2.3
52 Ibid
53 Exhibit 2 at [59]
54 Ibid at Annexure JTK-17
55 Ibid at [60] and [68] and Annexure JTK-19
56 Ibid at [69], [70]-[72] and [79] – [80]
57 Ibid at [106]
58 Ibid and at Annexure JTK-25
59 Ibid at [91] and [93]; Exhibit 1 at question 3.3
60 Ibid at [149] – [150]
61 Ibid at [108]-[113]
62 Exhibit 4
63 Exhibit 2 at [52]
64 Exhibit 1 at question 2.6
65 Ibid at [155(b)]; Exhibit 1at question 2.6 and at Attachment C; Exhibit 9 at Annexure LK-3, pp. 226-228
66 Ibid
67 Exhibit 2 at [155(a)]; Exhibit 1 at Attachment D; Exhibit 9 at Annexure LK-3, pp. 229-321
68 Exhibit 1 at Attachment D p. 11
69 Ibid at p. 20
70 Ibid at p. 22
71 Exhibit 5
72 Exhibit 6
73 Ibid
74 Exhibit 2 at [130]
75 Ibid at [131] and at Annexure JTK-28
76 Ibid
77 Ibid
78 Ibid
79 Ibid
80 Exhibit 2 at [142]; Annexure JTK-31
81 Exhibit 1 at question 2.5 and Attachment B
82 Ibid
83 Ibid at question 2.6
84 Ibid at question 2.5 and Attachment B
85 Ibid at Attachment B
86 Exhibit 9 at Annexure LK-3 p. 75
87 Exhibit 2 at [53]; Exhibit 1 at question 2.8
88 Exhibit 1 at question 2.6 and Attachments C, D, E, F, G & H
89 Ibid at question 2.6
90 Ibid
91 Ibid
92 Ibid
93 Ibid
94 Exhibit 9 at Annexure LK-3, p. 57
95 Ibid at p. 68
96 Ibid at p. 36
97 Ibid at pp. 214-220
98 Ibid at pp. 221-225
99 Exhibit 2 at [53]; Exhibit 1at question 2.8
100 Ibid; Annexure JTK-13
101 Section 182(1) of the Act
102 (1959) 101 CLR 298
103 RAFFWU Outline of Submissions dated 7 December 2018 at [4(a)], [8] , [9] ,[16] and [19]
104 Woolworths Outline of Submissions dated 14 December 2018 at [75]
105 RAFFWU Outline of Submissions dated 7 December 2018 at [6] – [9]
106 Transcript at PN1020 – PN1026
107 RAFFWU Outline of Submissions dated 7 December 2018 at [11]
108 Ibid at [6]; Exhibit 9; Annexure LK-3 at p. 34
109 Ibid at [10] – [14]
110 Ibid at [14]
111 Ibid at [16] – [17]
112 Ibid at [17]
113 Ibid at [18]
114 Peabody Moorvale Pty Limited v CFMEU [2014] FWCFB 2042; (2014) 242 IR 210 at [69], [84]
115 RAFFWU Outline of Submissions dated 7 December 2018 at [68]-[70], [84]
116 Re Uniline Australia Limited [2016] FWCFB 4969; (2016) 263 IR 81 at [113], [115]; Re Australian Track Corporation Limited [2016] FWCA 7012 at [69]-[70]; Re Uniline Australia Limited [2016] FWCFB 4969; (2016) 263 IR 81 at [113], [115]; Re Australian Track Corporation Limited [2016] FWCA 7012 at [69]-[70] see also AMOU v Harbour City Ferries Pty Limited [2016] FWCFB 1151 at [8]
117 Re Uniline Australia Limited [2016] FWCFB 4969 at [53]-[54];
118 Ibid at [113]; AMWU v Broadspectrum Australia Pty Limited [2018] FWCFB 6556 at [30]-[31]
119 Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo[2016] FWCFB 2887
120 4 Yearly Review of Modern Awards – Penalty Rates [2017] FWCFB 1001
121 Shop, Distributive and Allied Employees Association v AI Group and Ors [2017] FCAFC 161
122 Transcript at PN1126.
123 See Division 8 of Part 2 – 4
124 See s.437(2A)
125 See s.437(2A); See also discussion in Maritime Union of Australia v Maersk Crewing Australia Pty Ltd[2016] FWCFB 1894 at [37]-[47]
126 See, for example, Re CQ Industries Pty Ltd T/A CQ Field Mining Services[2017] FWC 5667; Re DP World Brisbane Pty Ltd[2016] FWC 385 and Re DP World Melbourne Limited[2016] FWC 386
127 Explanatory Memorandum to the Fair Work Amendment (Repeal of Four Yearly Review and Other Measures) Bill 2017 at [47]
128 Section 188(2)
129 Exhibit 2 at Annexure JTK-4
130 Exhibit 2 at Annexure JTK-7
131 Exhibit 2 at [31] – [32]
132 RAFFWU Outline of Submissions dated 7 December 2018 at [20]
133 Ibid at [21]
134 Ibid at [22] – [25]
135 Ibid at [28]
136 Exhibit 9 at [3]
137 Ibid at [7]
138 Ibid at [15]
139 Ibid at [16] – [17]
140 Ibid at [21] - [22]
141 Ibid at [23]
142 Ibid at [24]
143 RAFFWU Outline of Submissions dated 7 December 2018 at [29] – [30]
144 Section 181(2) of the Act
145 The Maritime Union of Australia v Northern Stevedoring Services Pty Ltd [2016] FWCFB 1926 ; Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales (2004) 137 IR 176 at [67]-[71]; BGC Contracting Pty Ltd [2018] FWC 1466 at [43]
146 Regulation 2.04 of the Fair Work Regulations 2009
147 Ibid at subregulation (7)
148 Exhibit 2 at [86]
149 Ibid at [83]
150 Exhibit 1 at question 2.3
151 Ibid
152 Clause 1.2. of the Agreement
153 RAFFWU Outline of Submissions dated 7 December 2018 at [46] – [47]
154 Ibid at [48]
155 Ibid at [41] – [44]
156 Ibid at [45]
157 Construction, Forestry, Mining, and Energy Union v John Holland Pty Ltd [2015] FCAFC 16, (2015) 228 FCR 297 at [34]-[41]
158 Ibid at [28]-[32]
159 Ibid at [60]-[62]; Cimeco Pty Ltd v Construction, Forestry, Mining, and Energy Union [2012] FWAFB 2206, (2012) 219 IR 139 at [8]
160 Cimeco Pty Limited v CFMEU [2012] FWAFB 2206; (2012) 219 IR 139 at [14]; AMOU v Harbour City Ferries Pty Limited [2016] FWCFB 1151 at [27]
161 Aerocare Flight Support Services Pty Limited v TWU [2017] FWCFB 5826; (2017) 270 IR 385 at [26]; Thiess Pty Limited v CFMMEU [2018] FWCFB 2405 at [5], [25], [29], [52]
162 Ibid
163 Aerocare Flight Support Services Pty Limited v TWU [2017] FWCFB 5826; (2017) 270 IR 385 at [26]; Thiess Pty Limited v CFMMEU [2018] FWCFB 2405 at [28], [32]
164 AMOU v Harbour City Ferries Pty Limited [2016] FWCFB 1151 at [31]; Aerocare Flight Support Services Pty Limited v TWU [2017] FWCFB 5826; (2017) 270 IR 385 at [26]; Thiess Pty Limited v CFMMEU [2018] FWCFB 2405 at [26]; AWU v BP Refinery (Kwinana) Pty Limited [2014] FWCFB 1476 at [11]
165 Cimeco Pty Limited v CFMEU (2012) 219 IR 139 at [20]; CFMEU v Queensland Bulk Handling Pty Limited [2012] FWAFB 7551 at [20]; Re OneSteel Recycling Pty Limited [2014] FWCFB 7560 at [22], [26]; AMOU v Harbour City Ferries Pty Limited [2016] FWCFB 1151 at [31]; Aerocare Flight Support Services Pty Limited v TWU [2017] FWCFB 5826; (2017) 270 IR 385 at [26]; Thiess Pty Limited v CFMMEU [2018] FWCFB 2405 at [26], [29];
166 Aerocare Flight Support Services Pty Limited v TWU [2017] FWCFB 5826; (2017) 270 IR 385 at [26]; Thiess Pty Limited v CFMMEU [2018] FWCFB 2405 at [27], [46]
167 See, for example, AMOU v Harbour City Ferries Pty Limited [2016] FWCFB 1151 at [33]; MUA v MMA Offshore Logistics Pty Limited [2017] FWCFB 660; (2017) 263 IR 81 at [82], [90]; Thiess Pty Limited v CFMMEU [2018] FWCFB 2405 at [27], [46]
168 Re OneSteel Recycling Pty Limited [2014] FWCFB 7560 at [19], [26], [27]; AMOU v Harbour City Ferries Pty Limited [2016] FWCFB 1151 at [20]-[22]; Aerocare Flight Support Pty Limited v TWU [2017] FWCFB 5826; ; (2017) 270 IR 385 at [29], [30]
169 AWU v BP Refinery (Kwinana) Pty Limited [2014] FWCFB 1476 at [14], [20]; Re OneSteel Recycling Pty Limited [2014] FWCFB 7560 at [23]
170 See, for example, AMOU v Harbour City Ferries Pty Limited [2016] FWCFB 1151 at [21]-[22] and AWU v BP Refinery (Kwinana) Pty Limited [2014] FWCFB 1476 at [14]
171 Exhibit 2 at [97]
172 Transcript at PN 482 – PN 499
173 Exhibit 2 at [98]
174 RAFFWU Outline of Submissions dated 7 December 2018 at [50] - [51]
175 Ibid at [52]
176 Ibid at [55]
177 Ibid at [53]
178 Ibid
179 Ibid at [54]
180 Ibid at [56]
181 Ibid at [59] – [60]
182 Ibid at [63]
183 Exhibit 1 at question 2.10 and question 4.3
184 Exhibit 2 at Annexure JTK-30
185 RAFFWU Outline of Submissions dated 7 December 2018 at [71]
186 Ibid at [73]
187 Ibid at [74]
188 Ibid at [75]
189 Ibid at [81]
190 [2017] FWCFB 1001
191 Ibid at [80]; RAFFWU Outline of Submissions dated 7 December 2018 at [77]
192 [2017] FWCFB 1001 at [1439] and Table 59
193 RAFFWU Outline of Submissions dated 7 December 2018 at [78]
194 Ibid at [79]
195 Ibid at [81]
196 Ibid at [83]
197 Shop Distributive and Allied Employees’ Association v National Retail Association (No 2) [2012] FCA 480 (Tracey J); Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 (Gordon J); See also Qantas Airways Limited [2013] FWCA 8454, in which Commissioner Johns said at [7]: “The Commission accepts that indirect discrimination falls within the scope of sections 194 and 195 of the FW Act”. In Application by Commissioner for Public Employment [2010] FWAA 9372, Vice President Lawler assumed without deciding, that a reference in s.195 to “discriminates” extends to indirect discrimination. In Australian Catholic University Limited T/A Australian Catholic University [2011] FWA 3693, the Vice President said at [14]: “I am inclined to the view that the notion of discrimination in s.195 extends to indirect discrimination because that construction would seem to be a construction that better furthers the objects of the FW Act”; Bissett C in University of Melbourne Enterprise Agreement 2013 [2014] FWCA 1133 at [51]-[54] followed Shop Distributive and Allied Employees’ Association v National Retail Association (No 2)
198 (1991) 173 CLR 349
199 Ibid at 392
200 [2018] FWCFB 6095
201 (1989) 168 CLR 461
202 Ibid at [61] – [63]
203 Exhibit 8
204 Transcript at PN569-PN570; PN864-PN865
205 RAFFWU Outline of Submissions dated 7 December 2018 at [84]
206 Ibid at [86]
207 Ibid at [87]
208 Ibid at [88] – [89]
209 Ibid at [91] – [92]
210 See s.188(1)(c)
211 See, for example, ASU v Yarra Valley Water Corporation [2013] FWCFB 7453; (2013) 232 IR 440 at [30]; TWU v Transit (NSW) Services Pty Limited [2016] FWCFB 997 at [19];
212 See, for example, ASU v Yarra Valley Water Corporation [2013] FWCFB 7453 at [29]
213 See, for example, ASU v Yarra Valley Water Corporation [2013] FWCFB 7453; (2013) 232 IR 440 at [28]; Re Centre for Non-Violence [2015] FWCA 4196 at [61], [65], [67], [68]; Re KCL Industries Pty Limited [2016] FWCFB 3048; (2016) 257 IR 266 at [29]-[30]; Re BGC Consulting Pty Limited [2018] FWC 1466 at [161]; Re Coles Supermarkets Australia Pty Limited [2018] FWCA 2283 at [36]
214 Re BGC Consulting Pty Limited [2018] FWC 1466 at [158]; Re Coles Supermarkets Australia Pty Limited [2018] FWCA 2283 at [37]
215 Exhibit 2 at [149], [151] – [153] and [158]
216 Ibid at [159]
217 Exhibit 2 at [155(a)]; Exhibit 9 at Annexure LK-3 p. 250
218 Ibid at Annexure JTK-35
219 Ibid at [151] and at Annexure JTK-33
220 Ibid at [131]; Annexure JTK-28
221 RAFFWU Outline of Submissions dated 7 December 2018 at [88]; Exhibit 9 at Annexure LK-3 p.68
222 Exhibit 2 at [108] – [109]
223 Ibid at [113]
224 Ibid at [145]
225 Transcript at PN111-PN113
226 Exhibit 2 at [143]; Exhibit 9 at Annexure LK-3 p. 215
227 Exhibit 6
228 Ibid
229 Exhibit 6; Specifically Woolworths letter dated 21 September 2018
230 RAFFWU Outline of Submissions dated 7 December 2018 at [99]
231 Solar Systems Pty Ltd [2012] FWAFB 6397 at [11]; Hart v Coles Supermarkets Australia Pty Ltdand Bi-Lo Pty Limited; Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2016] FWCFB 2887 at [6], [15]; SDAEA v Beechworth Bakery Employee Co Pty Ltd [2017] FWCFB 1664 at [11]
232 Macquarie Online Dictionary
233 Application by Aldi Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) & Welsh and Others (Loaded Rates Agreements Case)[2018] FWCFB 3610 at [100]
234 ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53 at [92]; Armacell Australia Pty Ltd [2010] FWAFB 9985 at [41]; Application by Aldi Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) & Welsh and Others (Loaded Rates Agreements Case)[2018] FWCFB 3610 at [112]
235 Clause 8.7(h) of the Agreement
236 Clause 4.1(a) of the Agreement
237 Clause J1.4 of the Agreement
238 Clause 18.6(b)(i) of the Agreement
239 Clause 8.6(f) of the Agreement
240 Clause 4.4 of the Agreement compared with Clause 18 of the Award
241 Clause 18.3, 18.4 and 18.5 of the Agreement
242 Section 190(1)
243 Section 190(5)
244 Email from the SDA to Chambers on 3 January 2019 at 1.36pm; Email from the AMIEU to Chambers on 3 January 2019 at 1.56pm; Email from AWU to Chambers on 3 January 2019 at 2.31pm
245 Email from RAFFWU to Chambers on 2 January 2019 at 5.43pm
246 See See Appendix K of the Agreement in which "Standard roster" is defined to mean "a full-time or part-time team member's agreed standard roster arrangements, being the days and times when the team member is required to work"
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