Woolworths Group Limited T/A Woolworths Group Limited v United Workers' Union

[2024] FWC 3428

[2024] FWC 3428

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.229 - Application for a bargaining order

Woolworths Group Limited T/A Woolworths Group Limited
v

United Workers' Union

(B2024/1584)

DEPUTY PRESIDENT BOYCE SYDNEY, 10 DECEMBER 2024

Application for bargaining orders – collective bargaining – Woolworths distribution centres – picketing and obstruction of site entrances - application for a bargaining order – good faith bargaining requirements – capricious or unfair conduct – unprotected industrial action prima face undermines collective bargaining - collective bargaining being undermined - interim orders made

1. This Decision was originally made on an ex-tempore basis on transcript on 6 December 2024. In publishing these Reasons, I have taken the opportunity to revise same in accordance with the principles stated by Kirby J in Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 (at  229-230,  including the  authorities  cited  therein),  and  the  New  South  Wales Court of Appeal in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 (at [193]-[195], including the authorities cited therein).

1. Woolworths Group Ltd has applied for bargaining orders under section 229 of the Fair Work Act 2009 (Act) against the United Workers Union (UWU) and its officers, employees and agents.  Pending final hearing, Woolworths asks that the Commission make an interim order pursuant to s.589 of the Act.  I note that under s.589, an interim order is akin to an interlocutory order, however I must still be satisfied as to the requisite requirements of the provision of the Act that I am dealing with.[1]

1. A hearing was conducted on 6 December 2024 in respect of the interim orders sought by Woolworths.  The bargaining provisions of the Act have been utilised by both parties, being Woolworths and the UWU, in respect of both protected employee claim action, and employer response action, including Woolworths standing down relevant employees.  There have also been various bargaining meetings between the parties that continue even today.

1. The are four proposed enterprise agreements for Woolworths’ distribution centres that are currently being negotiated concurrently between Woolworths, the UWU, and the Shop Distributive and Allied Employees Association (SDA).[2]

1. These four proposed enterprise agreements are the Erskine Park Distribution Centre, located in Erskine Park, Sydney, the Melbourne Liquor Distribution Centre, located in Laverton, North Melbourne, the Melbourne South Regional Distribution Centre, located in Dandenong, South Melbourne, and the Wodonga Regional Distribution Centre, located in Wodonga, Victoria.

1. A summary of the evidence concerning the protected industrial action and bargaining that has occurred to date is set out in documents handed up by Woolworths as part of their closing submissions.  I have reviewed that document, including the referencing therein, and adopt it in terms of my findings on the evidence as to the history of the protected industrial action and bargaining that has occurred.

1. The UWU are pursuing three common claims across all of the four proposed enterprise agreements that I have identified.  They include wage increases, common expiry date (or a common agreement nominal term), and the issue of performance management of Woolworths' employee team members.

1. These three common claims have been put forward by the UWU to Woolworths as non‑negotiable. Woolworths resists these claims.  In short, and relevantly, whilst the four proposed enterprise agreements are each separate single enterprise agreements, the UWU's interlinked claims and approach give rise to a commonality between all four enterprise agreements when it comes to bargaining.

1. On 27 November 2024, Ms Annette Karantoni, Chief Supply Chain Officer, Woolworths Group, and Managing Director Primary Connect, sent a letter to Mr Tim Kennedy, National Secretary of the UWU.  Relevantly, that correspondence outlines concerns that Woolworths has in relation to what I will term unlawful picketing by UWU officials, and its employee members, at Primary Connect sites (i.e. Woolworths’ distribution centres).

1. I note that the entity Primary Connect is operated by Woolworths to run its distribution centres.

1. The letter from Ms Karantoni specifically states that it is a “notice of concern” pursuant to s.229(4) of the Act.  The letter provides background, as well as particulars as to the unlawful picketing that took place on 26 November 2024 at the Hoxton Park Distribution Centre, the Mulgrave Distribution Centre, and the Melbourne Fresh Distribution Centre.

1. Mr Crosthwaite, Counsel for the UWU, rightly points out that the Melbourne South Regional Distribution Centre (MSRDC) is not mentioned in this letter, but it is part of the requests for orders sought by Woolworths.

1. Section 229(1) of the Act provides that:

“A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order ) under section 230 in relation to the agreement.”

1. It is conceded by both counsel before me that s.229 of the Act applies or relates to single enterprise agreements.

1. Subsections 229(4) and (5) of the Act read:

“Prerequisites for making an application

(4)       The bargaining representative may only apply for the bargaining order if    the bargaining representative:

(a)       has concerns that:

(i)  one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii)  the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b)      has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c)       has given the relevant bargaining representatives a reasonable time            within which to respond to those concerns; and

(d)       considers that the relevant bargaining representatives have not       responded appropriately to those concerns.

Non - compliance with notice requirements may be permitted

(5)      The FWC may consider the application even if it does not comply with paragraph  (4)(b) or (c) if the FWC is satisfied that it is appropriate in all      the circumstances to do so.”

1. I am satisfied that the letter of 27 November 2024 to Mr Tim Kennedy from Ms Karantoni is a “notice of concern” for the purposes of s.229(4) of the Act, and applies in respect of all of the four  proposed enterprise agreements in these proceedings (i.e. to which bargaining has been occurring).  In this regard, I find that notwithstanding that all four proposed enterprise agreements are single  enterprise agreements applying to four separate distribution centres, and the MSDRC is not mentioned in the notice of concern, given the manner in which bargaining has been progressing with the common or key claims across all four proposed enterprise agreements, the notice of concern is sufficient to embrace all of the enterprise agreements (including at the MSDRC site) to which application for orders in these proceedings has been made by Woolworths.

1. In the alternative, I equally find that it is appropriate in all the circumstances of this case to waive any requirement in relation to written notice under subsections 229(4)(b) and (c) of the Act for the MSRDC (per s.229(5) of the Act).  I note in particular in this regard the letter to Mr Andy Giles, UWU Organiser, from Mr Nathan Kent, Woolworths Head of Operations, dated 1 September 2024, whereby Woolworths seeks a commitment under that letter for the UWU (through its officials, organisers, delegates and members) to not impede or obstruct access to the entrances to the MSDRC or otherwise encourage others to limit access by impeding or obstructing site entrances.

1. I note that there has been no response from the UWU, to either the 27 November 2024 letter, or the 1 December 2024 letter.  Again, this supports my finding that Woolworths has complied with s.229(4) of the Act to the extent that it was required to do so when filing and applying for bargaining orders in these proceedings.

1. Turning findings concerning some of the other relevant evidence, I also rely upon Woolworths’ summary of Obstruction and Intent to Obstruct documenta, along with the table of distribution centres being affected by picketing (again, as handed up during the final closing submissions of Woolworths).  I have been through the evidence referencing contained therein, and I am satisfied that that referencing reflects the evidence, sufficient to make findings consistent with those two documents. 

1. I note that Mr Crosthwaite in his submissions pointed to a reference in relation to a video of the MSDRC entrance that is somewhat ambiguous as to whether a truck was doing a U-turn of its own volition, or whether it was doing a U-turn due to the picketers who were standing outside and obstructing the driveway.  However, it is appropriate that I consider Woolworth’s evidence as a whole.  Notwithstanding this one issue of ambiguity, the remainder of the evidence is wholly unchallenged by the UWU in these proceedings, and is sufficient for me to make a finding that unlawful picketing or conduct that obstructs, has the intent to obstruct and/or hinder access or egress from the relevant distribution centre gates, has been and is occurring.

1. Looking at the UWU's case (or defence), I note that none of Woolworths’ witnesses were cross-examined, except for Mr Scott Paterson (Product Owner, Workplace Relations, Primary Connect, and non-retail at Woolworths).  That said, I do not consider that this cross-examination challenged Mr Paterson's evidence in any substantive sense.

1. The evidence relied upon by the UWU is set out in the statement of Mr Nikolas Pefanis, the UWU’s Lead Industrial Officer - National.  His statement might best be described as one made upon information and belief, and hearsay evidence.  It does not engage with any of the substantive evidential issues in these proceedings as to conduct or bargaining.  Nor is there any other UWU evidence that provides information or answers as to the UWU's position in respect of the events that have happened, or the UWU's intended course of action or behaviour moving forward.

1. The rule in Jones v Dunkel[3] in Australia, can be summarised in this way.  Firstly, the unexplained failure by a party to give evidence, to call a witness, to tender documents or other evidence, or produce particular material, may, not must, in appropriate circumstances, lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case.  The rule operates against parties not bearing a burden of proof, as much as it does to parties who do bear a burden of proof.  In this regard, I refer to the case of Ho v Powell [2001] 51 NSWLR 572 at paragraph 16, being a decision of the New South Wales Court of Appeal.

1. It is equally appropriate to point out that the rule in Jones v Dunkel only applies where a party is required to explain or contradict something.  What a party is required to explain or contradict depends upon the issues in the case, thrown up by the relevant cause of action, and/or in the course of the evidence (as filed for proposed tender).  In those circumstances, I consider it appropriate to make a finding generally in this case that the absence of evidence from the UWU is unexplained, and that such missing or absent evidence (to the extent that an evidentiary issue is to be resolved in these proceedings) would not have assisted the UWU.  The short point is that I can more confidently make findings (including based upon inference) consistent with the evidence filed by Woolworths, which I have done. 

1. In relation to the making of orders in this matter, I need to be satisfied that certain jurisdictional facts exist, and that it is reasonable in all of the circumstances to make relevant bargaining orders.

1. I note that Woolworths is a bargaining representative, and thus has standing to make its application.  The application has been made within the time frame required by s.299(3) of the Act.  I have already found that Woolworths has complied with the giving of a notice of concern to the UWU (the latter as an employee bargaining representative).  I am also satisfied that there was a reasonable time limit within which the UWU was able to respond to Woolworths’ concerns, but the UWU has failed to do so.  It follows that I am wholly satisfied that the appropriate prerequisites to make an order in these proceedings have been met. 

1. I am also satisfied under s.230(2)(a) of the Act that Woolworths has agreed to bargain with the UWU. 

1. I find on the evidence that the UWU has organised, promoted or participated in obstructive picketing at relevant Woolworths’ distribution centres over a number of days.  This picketing has prevented access into and out of relevant distribution centres, and is conduct that falls within the ordinary meaning of the terms “capricious” and “unfair”, which has “undermined” freedom of association and collective bargaining.[4]  In this regard, I find that the UWU, through its organisation of, and participation in, unlawful picketing (howsoever defined), is placing or attempting to place illegitimate pressure on Woolworths during the bargaining process.

1. I note that collective bargaining is not simply about the right of, or ability for, ‘employees’ to collectively bargain.  Collective bargaining under the Act is a term of broad import, and extends to all matters under the Act concerned with or connected to collective bargaining, such as the content of enterprise agreements (or the scope that matters can be bargained over), good faith bargaining obligations, and the use of protected industrial action (with unlawful or unprotected industrial (or other) action not permitted by the Act, and thus not part of the collective bargaining regime in Australia).  In other words, it is in all of these contexts, or from all of these angles, that one must approach the question as to whether or not freedom of association and/or collective bargaining has been undermined.  It follows that the taking of unprotected industrial action is a matter that squarely (or prima face) undermines collective bargaining in that it is directly contrary to the overall collective bargaining regime under the Act (i.e. being all of the specific collective bargaining legislative provisions that form part of the collective bargaining regime under the Act, and not being limited to what happens in the context of or around bargaining meetings alone).

1. In this case, I find that the UWU has not, and is not, meeting its good faith bargaining obligations under the Act (s.228(1)(e)), and that the requirements of s.230 of the Act has been made out or satisfied by Woolworths in this case.

1. It is now appropriate to determine whether it is reasonable in all of the circumstances to make a bargaining order.  I conclude it is for the following reasons:

a)   the picketing or obstructive conduct is not part of any protected industrial action that has been authorised by a protected action ballot (i.e. it extends way beyond the simple removal of one's labour from an employer); 

b)   the instances of picketing have not been one off.  Such picketing continues as at today’s hearing (6 December 2024);

c)   the picketing is clearly affecting third parties, including individual employees (and management employees) who wish to return to work, and truck drivers of goods who seek to enter the work site; and

d)   despite the opportunity to do so, the UWU has not sought to allay any of the concerns of the Commission in relation to the picketing that has occurred, and continues to occur, whilst bargaining is taking place. 

1. In my view, it is reasonable in all the circumstances of this case that I make a bargaining order, against the UWU, and I do so [PR782228].

DEPUTY PRESIDENT

Appearances:

Mr Marc Felman, of Kings Counsel, and Mr Andrew Denton, of Counsel, instructed by Mr Jim Fox, Solicitor, Minter Ellison lawyers, appeared for Woolworths Group Limited T/AS Woolworths Group Limited (Applicant).

Mr Hugh Crosthwaite, of Counsel, instructed by Mr Rhyss Wyllie, Industrial Officer, appeared  for the United Workers’ Union.

Mr Dean D’Angelo, Specialist Industrial Officer, appeared for the Shop, Distributive and Allied Employees Association.

[1] Ms Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another[2020] FWCFB 4514.

[2] A fifth proposed enterprise agreement that was originally raised when Woolworths filed its application in these proceedings was the subject of a successful ballot at the Woolworths Heathwood Chilled and Frozen Distribution Centre.

[3] (1959) 101 CLR 298 (at 320).

[4] Also note the cases of Beer Spirits & Wine Pty Ltd v United Workers' Union[2020] FWC 6617, and Castlemaine Perkins Pty Limited t-as Castlemaine Perkins v United Voice[2018] FWC 2979.

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