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

This Decision was originally made on an ex-tempore basis on transcript on 6 December 2024.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).

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]

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.

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]

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.

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.

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Woolworths Group Limited T/A Woolworths Group Limited v United Workers' Union [2024] FWC 3428
Case: [2024] FWC 3428
Decision Date: 10 DECEMBER 2024

CaseChat Overview and Summary

Woolworths Group Limited, trading as Woolworths Group Limited, has filed an application under the Fair Work Act 2009 against the United Workers' Union (UWU) seeking a bargaining order. The application concerns alleged unlawful picketing and obstruction of site entrances at Woolworths distribution centres. The Fair Work Commission (FWC) was tasked with determining whether the UWU had engaged in conduct that undermined the collective bargaining process.

The legal issues at hand were whether the UWU had failed to meet its good faith bargaining obligations, and whether its actions constituted capricious or unfair conduct that undermined the collective bargaining process. The FWC needed to assess the evidence provided by Woolworths and determine if the UWU's conduct fell outside the scope of protected industrial action, thus undermining the collective bargaining regime.

The FWC found that the UWU had indeed engaged in unlawful picketing and obstructive conduct that extended beyond the scope of protected industrial action. This conduct had continued over multiple days and affected third parties, including employees and truck drivers. The FWC noted that the UWU had not responded to Woolworths' concerns, and the absence of UWU evidence did not assist their case. Consequently, the FWC concluded that it was reasonable in all circumstances to make a bargaining order against the UWU. The FWC emphasised that the picketing was not part of authorised protected industrial action and had a detrimental impact on the collective bargaining process.

The FWC granted the interim bargaining order sought by Woolworths against the UWU, finding that the union's conduct had undermined the collective bargaining process. The FWC determined that the UWU had failed to meet its good faith bargaining obligations and had engaged in unfair and capricious conduct.

Orders