1
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.
[2019] FWCA 7 [Note: An appeal pursuant to s.604 (C2019/596) was
lodged against this decision - refer to Full Bench decision dated 10 May
2019 [[2019] FWCFB 2355] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb2355.htm
[2019] FWCA 7
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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:
o Retail Employee Grade 1;
o Retail Employee Grade 2;
o Retail Employee Grade 3 (including a Store Services Assistant);
o Retail Employee Grade 3b;
o Retail Employee Grade 4 (including Store Services Officer);
o Retail Employee Grade 5 (including Qualified Trade Baker and a Qualified
Trade Butcher); and
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
[2019] FWCA 7
3
o 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 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]
14Ibid; 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
[2019] FWCA 7
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[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.
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
[2019] FWCA 7
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[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,
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
[2019] FWCA 7
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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
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
[2019] FWCA 7
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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 claims57
which included the following claims:
“. . .
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]
[2019] FWCA 7
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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” classification59.
[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
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]
[2019] FWCA 7
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[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” deck67 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:
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
[2019] FWCA 7
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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
70 Ibid at p. 22
71 Exhibit 5
72 Exhibit 6
73 Ibid
74 Exhibit 2 at [130]
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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).
. . .
75 Ibid at [131] and at Annexure JTK-28
76 Ibid
77 Ibid
78 Ibid
[2019] FWCA 7
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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:
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
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'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
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
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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
93 Ibid
94 Exhibit 9 at Annexure LK-3, p. 57
95 Ibid at p. 68
96 Ibid at p. 36
[2019] FWCA 7
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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 Dunkel102 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
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
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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.
103 RAFFWU Outline of Submissions dated 7 December 2018 at [4(a)], [8] , [9] ,[16] and [19]
[2019] FWCA 7
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[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:
o was placed “in some stores” on “inconspicuous noticeboards … not readily
accessed by employees or unknown to them”; and
o 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.
[2019] FWCA 7
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[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
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
[2019] FWCA 7
19
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.
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]
[2019] FWCA 7
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[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 abused122,
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
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]
[2019] FWCA 7
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[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
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)
[2019] FWCA 7
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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
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]
[2019] FWCA 7
23
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
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]
[2019] FWCA 7
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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
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]
[2019] FWCA 7
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(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 received the
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
146 Regulation 2.04 of the Fair Work Regulations 2009
147 Ibid at subregulation (7)
[2019] FWCA 7
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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
148 Exhibit 2 at [86]
149 Ibid at [83]
150 Exhibit 1 at question 2.3
151 Ibid
[2019] FWCA 7
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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
[2019] FWCA 7
28
(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
152 Clause 1.2. of the Agreement
153 RAFFWU Outline of Submissions dated 7 December 2018 at [46] – [47]
154 Ibid at [48]
[2019] FWCA 7
29
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,
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]
[2019] FWCA 7
30
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
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]
[2019] FWCA 7
31
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
171 Exhibit 2 at [97]
172 Transcript at PN 482 – PN 499
173 Exhibit 2 at [98]
[2019] FWCA 7
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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.
J.1.4 The value of the one-off bonus payable to an eligible team member is based on
two factors:
(a) when the team member commenced employment with Woolworths; and
(b) the team member’s average hours worked per week (over May, June
and July in 2018).
J.1.5 Team members employed from 2 July 2017 onwards are not entitled to the
one-off bonus payment.”
174 RAFFWU Outline of Submissions dated 7 December 2018 at [50] - [51]
Team members continuously Team members continuously Average Weekly Hours employed on or earlier than employed since 1 January 31 December 2016 2017 to 1 July 2017 38 $805 $380 (Full-time team members only) More than 30 $574 $238.50 20 to 30 $288 $62.50 10 to 20 $68 No cash bonus payable 1 to 10 No cash bonus payable No cash bonus payable Less than 1 No cash bonus payable No cash bonus payable
[2019] FWCA 7
33
[114] RAFFWU submits that clause J.1 provides for employees to be paid a “one-off bonus
payment” and notes the following:
Employees who were employed after 1 July 2017 are not entitled to a bonus;175
Part time or casual employees who worked an average below 10 hours per week
are not entitled to a bonus;176
Employees who were engaged prior to 1 July 2017 who are part time, are to
receive no or a smaller bonus than an equivalent full-time employee;177
The scaling of payments is not proportionate to the hours worked (not pro-rata);178
Part time employees who worked an average of 38 hours per week are to be paid a
substantially lower bonus than full time employees who also worked 38 hours per
week in the same period;179 and
Part-time or casual employees who worked 19 hours (half that of a full-time
employee) are entitled to a disproportionately reduced payment when compared
with full time employees, or no payment if they were employed after 1 July
2017.180
[115] RAFFWU says that on its analysis, employees who are not full time are to be paid a
bonus which will be disproportionately lower than what will be paid to full time employees. It
further submits that there are distinctly different employee demographics for those who are
full time and those who are not. RAFFWU submits that the critical demographic
characteristics are gender and age.181
[116] RAFFWU submits that according to the Reserve Bank of Australia, women, young
workers and older workers are far more likely to be engaged in part time work.182 Data
provided by Woolworths confirms that the Agreement coverage includes:
57.3% women;
29.9% under the age of 21; and
83.2% non full time employees.183
[117] Data provided by Woolworths184 also confirms the total number of employees who are
due to receive a bonus in each category of hours, further divided to show both gender and age
characteristics as follows:
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
[2019] FWCA 7
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[118] As to young workers, RAFFWU notes the following:
Of those employed between 1 January 2017-1 July 2017, 62.6% of those who will
not receive any bonus are under the age of 21;185
Of those covered by the Agreement, 29.9% are under the age of 21 however
54.9% of those employees who were employed after 1 July 2017, and not entitled
to a bonus, are under the age of 21;186
In total, 44.2% of those to be covered by the Agreement are not entitled to any
form of bonus, and yet 76.5% of employees under the age of 21 will not be paid a
bonus;187 and
Despite 12.7% of employees being paid the highest category bonus (full time
employees), only 0.6% of employees under the age of 21 are engaged as full time
employees and therefore entitled to the highest category bonus.188
[119] RAFFWU contends that on its analysis, employees under the age of 21 are far more
likely than any other apparent age group to not have the benefit of the highest category bonus
and to not be paid a bonus at all. It contends that this would likely extend to workers in their
early twenties, however the material produced does not provide this information.189
[120] RAFFWU also relied on the profile of retail industry employees discussed in the
Penalty Rates Case190. That is, such employees “more likely to be female, younger (under 25
years), work part-time hours, be employed on a casual basis” and likely to be low paid.191 The
Full Bench noted that the sectorial average for part-time employees was 16.1 hours.192
RAFFWU contends that employees under the Agreement who are working the sectorial
average are some of the most disadvantaged by the bonus scheme, in comparison to a pro-
rated payment based on hours worked. It says those engaged prior to 2017 will receive an
80% reduction from an equivalent pro-rated payment, and for those engaged after 2017 they
will receive a 100% reduction when compared with an equivalent pro-rated payment.193
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]
Average weekly hours, gender & continuous service Average weekly hours Female Male Continuously employed on or earlier than Continuously employed since 1 January Continuously employed on or earlier than Continuosly employed since 1 January 31 December 2016 to 1 July 2017 31 December 2016 to 1 July 2017 less than 1 hour 45 592 46 1 to 10 hours 5938 999 989 4951 871 10 to 20 hours 12431 1143 7532 927 20 to 30 hours 11895 585 5808 463 more than 30 hours 5245 148 2572 153 full time (38) 7408 83 6529 173 Average weekly hours, age group & continuous service Average weekly hours 20 years & under 21 - 64 years 65 years & over Continuously employed on or earlier than Continuously employed since 1 January Continuously employed on or earlier than Continuously employed since 1 January Continuously employed on or earlier Continuously employed since 1 January 31 December 2016 to 1 July 2017 31 December 2016 to 1 July 2017 than 31 December 2016 to 1 July 2017 less than 1 hour 235 51 1012 38 11 2 1 to 10 hours 4574 1424 6148 431 167 5 10 to 20 hours 4893 1042 14544 1021 526 7 20 to 30 hours 1904 279 15408 766 391 3 more than 30 hours 333 41 7303 260 181 full time (38) 207 24 13388 232 342
[2019] FWCA 7
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[121] RAFFWU contends that s.195 of the Act applies to both direct and indirect
discrimination. It contends that Parliament’s intention was to prevent persons from creating
schemes which would compensate one category of employee less based on an attribute. It also
recognises that a reasonableness test can be inferred in any such assessment. RAFFWU
submits that a scheme that pays part time employees a disproportionately less amount than
full time employees based on their mode of employment will unfairly disadvantage female
employees.194 RAFFWU also contends that there is no reasonable basis for this
discrimination.195 It says on this basis the Commission cannot approve the Agreement.196
[122] It is unnecessary for present purposes to determine whether “discriminates” in s.195 of
the Act extends to indirect discrimination. It is sufficient to note that there is conflicting
relevant authority on the point emanating from single judges of the Federal Court of Australia
and indeed from decisions of this tribunal.197 For the purposes of considering whether the
impugned term is a discriminatory term, I will assume without deciding that “discriminates”
in s.195 extends to terms that indirectly discriminate in the sense described by Dawson and
Toohey JJ in Waters v Public Transport Corporation198:
“…indirect discrimination occurs where one person appears to be treated just as another
is or would be treated but the impact of such “equal” treatment is that the former is in
fact treated less favourable than the latter.”199
[123] As a Full Bench of the Commission recently noted in Budd v Australian Federal
Police200 by reference to the High Court’s judgment in Street v Queensland Bar
Association201, the legal concept of discrimination (including indirect discrimination) does not
extend to different treatment appropriate to a relevant difference and that differential
treatment or differential impact which is reasonable in the circumstance will not be
discriminatory.202
[124] There are a number of answers to the criticism raised by RAFFWU that the impugned
term is a discriminatory term. Accepting that women and younger workers constitute a
preponderance of the types of workers who are part-time employees employed by
Woolworths and therefore are affected by the impugned term, I am not persuaded on the
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]
[2019] FWCA 7
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evidence that there is a differential impact on these workers compared to older workers and
men who are also part-time employees affected by the impugned term. The evidence included
an analysis prepared by Woolworths of impact based on hours worked, gender and age.203 I
accept the analysis. Based on the analysis I am unable to discern any meaningful differential
impact of the impugned term based on age or gender.
[125] Moreover the differential treatment of employees brought about by the impugned term
is as a consequence of the hours worked and the period of service rendered. The method of
calculation is not strictly pro-rata of hours. The relevant employees in each pool, which is
based on a spread of hours, receive a portion of a final total predetermined pool of money set
aside for the sign on bonus.204 The impugned term makes payment conditional on being
employed at, before or after a particular time, and is distributed on a proportion to the hours
worked by individual employees within a span. These considerations are said to reflect issues
of contribution to the business of Woolworths made by the various employees, and I agree.
[126] The essence of the RAFFWU’s concern about the sign on bonus is one of fairness. A
pro-rata distribution is fair, the method chosen by Woolworths is unfair. That may be so, but
without more it does not amount to indirect discrimination. If an unfair term operates upon a
class of employees comprising younger and older workers, males and females, in essentially
the same way, that is the negative impact is essentially the same on each member of the class
then it does not discriminate. It might well have been fairer for the amounts to have been
distributed on a strictly pro-rata basis but it does not follow that the method is discriminatory.
The differential treatment or impact brought about by the conditions attaching to the
impugned terms is differential treatment or impact that is in any event appropriate having
regard to the circumstances of the employment, namely the hours worked and the period of
service given. In other words, if there is differential treatment, the differential treatment or
impact is reasonable. The method selected for the distribution of the sign on bonus is not
perfectly fair, but it nevertheless has a justifiable basis connected with contribution to the
business through hours worked and period of service rendered. This is reasonable and
appropriate in the circumstances. It is not suggested that the impugned term directly
discriminates. I accept that it does not.
[127] For these reasons I am satisfied that the impugned term is not an unlawful term.
[128] Returning then to the question whether the nature of the coverage of the agreement
amounts to, in effect an opt-out clause which is an unlawful term as described in s.194(ba) of
the Act.
[129] As appears to me to be evident from the terms of s.194(ba), a term of an enterprise
agreement will be an unlawful term if the term “provides a method” by which an employee or
employer may elect (unilaterally or otherwise) not to be covered by an agreement.
[130] It is firstly to be observed that the coverage clause and in particular the exclusion of
identified employees from coverage clause does not, in terms provide either a “method”
unilaterally or otherwise to opt-out, nor is there expressly any method by which an employee
or Woolworths “may elect” not to be covered by the Agreement. Secondly the coverage
203 Exhibit 8
204 Transcript at PN569-PN570; PN864-PN865
[2019] FWCA 7
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provisions of the Agreement do not permit, in the sense of authorising, conduct that may lead
to an opting out of coverage of the Agreement.
[131] That an employee is promoted or elects to accept an offer of this employment in
another classification of employment which is not covered by the Agreement is not in my
view a method nor an election to opt-out of coverage of the Agreement.
[132] An employee covered by the Agreement accepts that which would in effect be a new
contract of employment in relation to a new position within Woolworths, that employee
would cease to be covered by the Agreement in relation to the new employment because the
new employment was not covered by the Agreement to begin with. The cessation of coverage
would not occur because the Agreement provided for some method by which the employee
could elect to opt-out of coverage, rather the cessation of coverage occurred because the
position into which the employee has moved was never covered by the Agreement. As
ss.53(1) and (6) of the Act make clear, an enterprise agreement covers an employee if the
Agreement is expressed to cover the employee, and where an agreement is expressed to cover
an employee, that is a reference to the Agreement “covering the employee in relation to
particular employment”.
[133] I am therefore satisfied that the coverage provision of the Agreement is not an
unlawful term.
4.5 Misrepresentation of benefits
[134] RAFFWU contends that in Woolworths’ material encouraging workers to vote for the
Agreement, it represented that it would pay a “laundering allowance” to employees other than
bakery employees (whose uniforms are laundered by Woolworths).205 The relevant term of
the Agreement is as follows:
“5.2. Allowance Table
205 RAFFWU Outline of Submissions dated 7 December 2018 at [84]
Allowance Application Special clothing allowance Where a team member is required to wear or use protective gear, this will be provided, maintained, repaired, laundered and replaced (when required) by Woolworths. Woolworths will train team members in the appropriate use of protective gear. Examples of protective gear are: Gum boots for work in wet areas . White coats for meat team members, also available to seafood team members on request Hats and sunscreen lotion for outdoor work Insulated gloves and insulated parka for cold and freezer areas Where Woolworths requires a team member to wear special clothing such as a uniform, dress or other clothing then Woolworths will reimburse the cost of purchasing such clothing and the cost of replacement items when replacement is due to wear and tear. This will not apply where the special clothing has been supplied or paid for by Woolworths. Woolworths will never require a team member to wear any clothing which is revealing or offensive. Where Woolworths requires a team member to launder any special uniform, dress or clothing, the team member will be paid the following applicable allowance: (a) For a full-time team member, $6.25 per week. (b) For a part-time or casual team member, $1.25 per shift.
[2019] FWCA 7
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[135] RAFFWU contends that Woolworths applies a “preferred dress” policy which
arguably does not fall within the scope of the GRI Award and according to information
contained on the Fair Work Ombudsman’s website, may not amount to “special uniform”.206
RAFFWU expresses concern that because the preferred dress policy may allow an employee
to wear and launder clothing which is not a special uniform, dress or clothing, in those
circumstances, Woolworths may not be obliged to pay the laundering allowance. Should this
be the operation of the term, RAFFWU submits that the terms and benefits of the Agreement
which relate to the laundering allowance may have been misrepresented.207
[136] RAFFWU also has concerns regarding gift cards which were represented to employees
as a benefit of the Agreement and that there was a benefit of a “one off payment of up to
$1100…” included in the Agreement. However, RAFFWU submits that the Agreement does
not contain any gift card benefit.208
[137] RAFFWU contends that each of these misrepresentations is likely to have misled
employees in relation to the Agreement. As the misrepresentations form part of the
explanation provided by Woolworths to employees about the terms of the Agreement and the
effect of those terms, Woolworths may not have complied with s.180(5) with the consequence
that that there cannot be satisfaction as to s.188(1)(a).209 The misrepresentation also provides
other reasonable grounds for believing that the Agreement was not genuinely agreed to by the
relevant employees.210
[138] In summary then, RAFFWU contends two misrepresentations were made by
Woolworths. One concerns laundry allowance, the other concerns the provision of a sign-on
payment. There are two issues raised by these contentions, namely whether there was a
misrepresentation of all, and if so, what was the likely impact of the misrepresentation on the
quality or genuineness of the making of the Agreement which was given expression through
the vote of relevant employees. There are a number of relevant matters that may be taken into
account as to the latter. Some of these matters include whether the employee bargaining
representatives put, or had a reasonable opportunity to put, a corrective statement to
employees or a statement asserting the position of the bargaining representative to
employees.211 Where a statement made is actually a misrepresentation, it is relevant to
consider whether the any misrepresentation concerning the content or effect of the agreement
was significant or trivial.212 It may also be relevant to consider whether by reason of any
misrepresentation it could be said that employees were reasonably likely or expected to have
been misled into voting for an agreement. That is if they had known the true position, would it
have been likely that the employees would not have voted for the agreement.213
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)
[2019] FWCA 7
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[139] Moreover any communication that is said to have been a misrepresentation must be
considered in the context of the totality of communications and explanations provided by an
employer to the employees. In other words a statement that is said to amount to a
misrepresentation should not be viewed in isolation for the purposes of making an assessment
as to the genuineness of the agreement made.214
[140] The relevant part of the laundry allowance provision of the Agreement at issue
provides:
“Where Woolworths requires a team member to launder any special uniform, dress or
clothing, the team member will be paid the following applicable allowance:
(a) For a full-time team member, $6.25 per week; and
(b) For a part-time or casual team member, $1.25 per shift.”
[141] This provision appears to be the same as clause 20.2(b) of the GRI Award and appears
to be responsive to a claim or request made by the SDA and AWU as the evidence to which
earlier reference has been made discloses.
[142] It is not in contention that Woolworths intended by its communications to employees
to convey to them that it would be paying the laundry allowance pursuant to the Agreement in
respect of uniforms, dress or clothing, that Woolworths required employees to launder.
[143] Central to RAFFWU’s concern is that Woolworths’ preferred dress policy by which
employees are encouraged to wear clothing of preferred type, style and colour whilst at work,
is not a “special uniform, dress or clothing” for the purposes of clause 5.2 of the Agreement.
[144] According to the evidence given by Ms Kerr, Woolworths has agreed to pay and
intends to pay the laundry allowance in respect of preferred dress.215 Ms Kerr’s evidence was
also that Woolworths has prepared its payroll system to enable it to pay the laundry
allowance.216
[145] There is no suggestion that Woolworths does not intend to pay the laundry allowance
in respect of preferred dress as set out in its policy. The evidence also discloses other
communications to employees which make this point clear. For example, the Agreement
Summary Deck to which earlier reference has been made provided the following:
“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:
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]
[2019] FWCA 7
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a. $6.25 per week for full-time team members; and
b. $1.25 per shift for part-time and casual team members.”217
[146] Also, the SDA summary document provided the following in respect of laundry
allowance:
“New laundry allowance payable to everyone in preferred dress”
. . .
“The new Agreement contains a laundry allowance that will be paid to all employees
who wear a uniform or preferred dress and launder it at home. (This will not apply to
Bakery team members if their uniform is laundered by the company).
Casual / Part Time $1.25 per shift
Full-time $6.25 per week.”218
[147] There is also correspondence passing between Woolworths and the bargaining
representatives about laundry allowance being payable on preferred dress.219 In addition it
appears that RAFFWU was aware of Woolworths’ position on the payment of the laundry
allowance by at least 1 October 2018.220 It thus had an opportunity to prepare and circulate its
own communications if it considered there to have been a misrepresentation as to laundry
allowance and there is no evidence that it took up the opportunity. There is no evidence of any
employee having actually been misled and there is no evidence of any employee indicating
that he or she would have voted differently had they been made aware of the
misrepresentation alleged. In any event I am not persuaded that there has been a
misrepresentation. There is clearly room for an argument that the provision in the Agreement
does not require payment of a laundry allowance for the laundering of preferred dress. It
seems to me however, given all of the correspondence to which reference has been made
together with the fact that Woolworths is now on record as indicating a broad construction,
that it would be hard pressed to argue in future that the provision has a more limited
operation.
[148] Turning next to the sign on payment and gift card issues, which concern an allegation
that Woolworths represented to employees at both the gift card and the one-off payment of up
to $1100 were benefits of the Agreement.221 The gift card benefit is not a term of the
Agreement.
[149] The evidence is that during the course of a bargaining for the Agreement, Woolworths
and the Unions agreed, subject to eligibility, that employees would be provided with a sign-on
payment in two forms – a cash payment and a Wish Card.222 These bargaining parties also
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]
[2019] FWCA 7
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agreed that the cash payment was contingent on the Agreement being approved and the gift
card was contingent on the Agreement being made.223
[150] It is clear that Clause J1.4 in Appendix J of the Agreement makes provision for the
payment of a one-off cash amount upon the approval of the Agreement. It makes no provision
of gift cards to employees.
[151] The representations that were made did not in terms expressly state that either the one-
off payment or the gift card was a term of the proposed agreement. They were expressed as
benefits of the agreement. The suggestion of misrepresentation arises therefore by way of
implication, that is, it was implicit from the communications that these benefits would be
terms of the Agreement and that the total value of up to $1100 would be a term of the
Agreement. Clearly the representations made about the gift card and the one-off payment
were not misrepresentation by reason of any words used by Woolworths or others to
communicate the benefit to employees. Such representation as might have been made would
arise because Woolworths did not communicate that the full maximum combined benefit
would not be terms of the Agreement and therefore by implication, Woolworths was
communicating that the benefits are terms of the Agreement. Even if this is so, it does not
follow that the omission is a material one. First the provision of the gift card was conditional
upon the Agreement being made. The Agreement has been made and according to the
evidence the gift card has been provided to in excess of 87,970 employees who are eligible to
receive one consistent with the conditions attaching to its provision.224 There is also some
further validation for the allocation of additional gift cards occurring.225 Secondly the
occasion for the payment of the sum of the sign on sum has not yet arrived but as noted above
the Agreement made provision for it and if the Agreement is approved by the Commission
those terms become operative and enforceable. Ultimately if the Agreement is approved then
eligible employees will have received or will shortly thereafter receive the full benefit of the
combined gift card (which they have already received) and the remainder of any eligible sign-
on sum which is a term of the Agreement. In these circumstances, I am not persuaded that the
there are other reasonable grounds based on these two issues for believing that the employees
did not genuinely agree to the Agreement. I am also not persuaded that Woolworths did not
comply with s.180(5) of the Act.
[152] It should also be observed that there is evidence of communications in relation to the
gift card which made it clear that the gift card was not conditional on the enterprise agreement
being approved by the Commission but only conditional on the Agreement being made.226 It
is also clear from the evidence earlier discussed that RAFFWU was aware that the gift card
would not be a term of the Agreement and was aware that the maximum sum of $1100 was a
combined value since at least 18 September 2018227 and was aware of the position as to the
maximum total value of the gift card and one-off payment.228 It had an opportunity to prepare
and circulate its own communication. It posted on its Facebook page a copy of its
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
[2019] FWCA 7
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correspondence of 18 September 2018 to Woolworths about the subject.229 There is no
evidence it took any other step to prepare and circulate communications about the matter.
[153] For the reasons stated the objections raised by RAFFWU which are based on the
purported misrepresentations are also rejected.
4.6 Better off overall test – casual employees
[154] The substance of RAFFWU’s concerns relating to whether the Agreement passes the
BOOT, is that any diminution in the GRI Award entitlements of casual employees by reason
of the Agreement applying is unlikely to be offset because the Agreement provides negligible
or no beneficial terms that are relevant to casual employees, and in particular the entitlement
to apply for conversion to more secure work earlier than 6 months after an unsuccessful
application.230
[155] In summary, the proper application of the BOOT requires a finding that each award
covered employee and prospective employee would be better off under the agreement than
under the relevant modern award.231 The requirement that “each” such employee and
prospective employee be better off overall is a rigorous one. The ordinary meaning of “each”
is “every, of two or more considered individually or one by one”.232 It follows that every
award covered employee and prospective employee must be better off overall, with the
corollary that if any such employee is not better off overall, the relevant enterprise agreement
does not pass the BOOT.233
[156] A proper application of the BOOT also requires an overall assessment to be made.
This requires the identification of terms which are more beneficial for an employee, terms
which are less beneficial, and an overall assessment of whether an employee would be better
off under the agreement.234
[157] It is uncontroversial that the Agreement contains a term that a casual employee is only
permitted to make an application for conversion to part-time employment once every six
months.235
[158] The GRI Award makes provision in clause 13.5 of the right to request casual
conversion. The right is limited to those who are described as regular casual employees who
have a particular pattern of work over the preceding 12 month period. Depending on the
number of hours worked, a regular casual employee may apply to have their employment
converted to full-time or part-time employment. A request made for a conversion may only be
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 Ltd and 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
[2019] FWCA 7
43
refused on reasonable grounds after consultation with the applicant employee. The GRI
Award sets out a non-exhaustive list of grounds for refusal that are reasonable grounds. The
Agreement appears to limit the capacity of a casual employee to make application to only
once every six months. There can be little doubt that this limitation is a detriment but it is not
one that should be assessed in isolation. Application of a BOOT is not a line by line analysis
and requires an overall assessment to be made. As Woolworths and the SDA have pointed out
and as is clear from the terms of the Agreement, there are a range of more favourable terms
for which provision is made in the Agreement that relate to casual employees compared to the
GRI Award. These include:
a higher base pay (by at least $10 per 38 hour week) under the Agreement236 in
comparison to the GRI Award;
casual loading applies to the higher base pay under the Agreement;
overtime penalty in clause 10.5 of the Agreement applies to the higher base pay
provided thereunder;
Saturday and Sunday penalty rates in clause 6.3 of the Agreement apply to the
higher base pay provided thereunder;
public holiday penalty rates in clause 19.2 of the 2018 Agreement apply to the
higher base rate provided thereunder;
a sign-on payment for casual employees that had average weekly hours above 10
hours per week (if employment commenced on or before 31 December 2016) or
above 20 hours per week (if employment commenced between 1 January and 309
June 2017;237
a longer paid rest break under the Agreement in clause 7 compared to clause
31.1(a) of the GRI Award;
the Agreement, unlike the GRI Award, makes provision for “half pay” long
service entitlements;238
the Agreement, unlike the GRI Award allows for our change in rosters
temporarily because of study or examinations;239
the Agreement makes provision for casual employees who are 20 years of age to
be paid the adult rate of pay;240 and
casual employees are entitled to various forms of unpaid leave.241
[159] It is accepted that not each of these benefits will apply in every case to every casual
employee, nonetheless a number will clearly have universal operation. Taking all of this into
account, I consider that each award covered casual employee and each prospective award
covered casual employee would as at test time, be better off overall if the Agreement applied
than if the GRI Award applied to that employee. RAFFWU’s objection on this ground is also
rejected.
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
[2019] FWCA 7
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5. Approval requirements
[160] Woolworths has filed, in support of its application for the approval of the Agreement,
a statutory declaration made by Ms Kerr (Exhibit 1) and a statement of Ms Kerr (Exhibit 2)
addressing various of the requirements in ss.186 and 187 of the Act. Section 186(1) of the Act
provides that if an application for the approval of an enterprise agreement is made, relevantly
in this case, under s.185, the Commission must approve the agreement if the requirements set
out in ss.186 and 187 are met.
[161] The first of these requirements is that the Commission must be satisfied that the
Agreement has been genuinely agreed to by the employees covered by the Agreement.
Section 188 relevantly provides:
“188 When employees have genuinely agreed to an enterprise agreement
(1) An enterprise agreement has been genuinely agreed to by the employees
covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement
complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre approval
steps);
(ii) subsection 181(2) (which requires that employees not be
requested to approve an enterprise agreement until 21 days after the last
notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection
182(1) or (2) applies (those subsections deal with the making of different kinds
of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement
has not been genuinely agreed to by the employees.”
[162] I am satisfied for the reasons earlier stated and based on the material contained in
Exhibits 1 and 2, and the documents which are annexed thereto, that Woolworths complied
with ss.180(2), (3) and (5) and 181(2).
[163] According to Exhibit 1, at the time Woolworths asked relevant employees to vote to
approve the Agreement, there were 109,429 employees who were employed who would be
covered by the Agreement. Of that voting cohort, 67,774 employees cast a valid vote, and
63,363 voted to approve the Agreement. Plainly, a majority of employees employed at the
time who cast a valid vote, voted to approve the Agreement. There is no suggestion that the
employees who were asked to vote to approve the Agreement did not meet the description in
s.182(1), nor is it suggested that there are employees who met that description but were not
asked to vote to approve the Agreement. I am therefore satisfied, based on the material
contained in Exhibit 1, that the Agreement was made in accordance with s.182(1).
[2019] FWCA 7
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[164] The extent that it is necessary to rely on the 2014 and 2015 NERRs, for the reason
earlier stated, I am satisfied as required by s.188(2) that the Agreement has been genuinely
agreed to by the employees covered by the Agreement.
[165] I have already dealt with an issue raised concerning there are other reasonable grounds
for believing that the Agreement has not been genuinely agreed to by the relevant employees.
For the reasons stated I rejected the issue raised. Apart from that issue I am not aware or, nor
did any person suggest there were any other reasonable grounds for so believing. I am
therefore satisfied that the Agreement has been genuinely agreed to by the employees covered
by the Agreement. The requirement in s.186(2)(a) is therefore met.
[166] As this is not a multi-enterprise agreement, the requirement in s.186(2)(b) does not
apply. The requirement in s.186(2)(c) concerns the identification of any terms in the
Agreement which contravene s.55 of the Act. Section 55(1) provides that an enterprise
agreement must not exclude any provision of the National Employment Standards (NES).
That section also deals with the interaction between terms of an enterprise agreement and the
NES. The NES is contained in Part 2 – 2 (ss.55 to 131 of the Act).
[167] On my review of the Agreement there are no terms which could be said to contravene
s.55 of the Act. Moreover clause 1.5 b of the Agreement contains an NES precedence clause
which makes clear that to the extent that there is an inconsistency between the Agreement and
the NES and the NES provides a greater benefit, then the NES provision will apply to the
extent of that inconsistency. I am therefore satisfied that the requirement in s.186(2)(c) is met.
[168] Section 186(2)(d) is concerned with whether the Agreement passes the BOOT. I have
already dealt with and rejected an objection that the Agreement does not pass the BOOT in
respect of casual employees.
[169] Before the hearing of the application for the approval of the Agreement, I caused to be
raised with Woolworths (with copies of the correspondence to the other bargaining
representatives) my concerns that the Agreement may not pass the BOOT in two respects. The
first concerned the position of adult apprentices under the Agreement compared to under the
GRI Award. Woolworths has proffered an undertaking directed to the concern raised which is
set out at paragraph 2 of Annexure JTK – 40 to Exhibit 2.
[170] The second issue concerned the rates of pay for trainees under the Agreement
compared to under the GRI Award. Woolworths has proffered an undertaking directed to the
concern raised which is set out at paragraph 3 of Annexure JTK – 40 to Exhibit 2. A revised
undertaking has since been given which provides:
“3. Under clause 4.7 of the Agreement a Trainee will be paid an hourly rate which
is at all times at least 1.25% above the minimum rate prescribed in Schedule E of the
Miscellaneous Award 2010 for the Trainee's classification. For the purpose of the
approval of the Agreement the hourly rates payable to Trainees under the Agreement
upon commencement of the Agreement shall be:
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”
[171] The power of the Commission to accept an undertaking in relation to the approval of
an enterprise agreement is dealt with in s.190 of the Act. Section 190 is engaged relevantly if
an application for approval of an agreement has been made under s.185 and the Commission
has a concern that the agreement does not meet the requirements set out in ss.186 and
187.242 It is uncontroversial in relation to the Agreement that there is an application for its
approval under s.185 and that I have concerns that the Agreement does not meet, the
requirement in s.186(2)(d) of the Act.
[172] Section 190(2) confers discretion on the Commission to approve an agreement under
s.186 if satisfied that acceptance of the undertaking, subject to the fetters in s.190(3), meets
the concern. It is clear, therefore, that the undertaking proffered must meet the concern that
the Agreement does not meet one or more of the identified requirements set out in ss.186 and
187 of the Act. The relevant requirement here, about which there is a concern, is the
requirement that the Agreement pass the BOOT.
[173] By s.190(3), the Commission may only accept a written undertaking if satisfied that
the effect of accepting the undertaking is not likely to cause financial detriment to any
employee covered by the agreement or result in a substantial change of the agreement. Section
190(4) prevents the Commission from accepting an undertaking unless it has sought the views
of each person who the Commission knows is a bargaining representative for the agreement.
Finally, an undertaking that is proffered must meet the signing requirements prescribed by
regulations.243
[174] The process for proffering, accepting undertakings, assessing whether an accepted
undertaking meets the requisite concern, and considering whether to approve an enterprise
agreement may be summarised, chronologically as follows:
First, there must be made an application for approval of an enterprise agreement.
Secondly, the Commission must have a concern that the agreement does not meet
one or more of the requirements set out in ss.186 and 187 of the Act. It should go
without saying that the relevant concern needs to be identified by the Commission
and communicated to the applicant for the approval of the agreement, and where
the applicant is a bargaining representative for the agreement which is not the
employer, also communicated to the employer or employers covered by the
agreement. Only an employer or employers covered by an agreement can give an
undertaking.
Thirdly, there must be a written undertaking from one or more of the employers
covered by the agreement and that undertaking must meet the signing
requirements.
242 Section 190(1)
243 Section 190(5)
Modern Award Classification Agreement Classification Agreement Rate Wage level A part-time trainee Retail employee level 1 (trainee) $21.88 completed year 12 with 3 years out of Retail employee level 2 (trainee) $21 88 schooling Clerical Assistant Level 1 (trainee) $21 88
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Fourthly, the Commission must assess and be satisfied that the effect of accepting
the undertaking is not likely to cause financial detriment to any employee covered
by the agreement or result in substantial changes to the agreement.
Fifthly, before accepting an undertaking the Commission must seek the views of
known bargaining representatives for the agreement.
Sixthly, if the undertaking is accepted the Commission must be satisfied that the
accepted undertaking meets its concern before it may approve the agreement.
Seventhly, there is a residual discretion to be exercised whether to approve the
agreement with the undertaking that has been accepted and that meets the
identified concern.
[175] The undertakings referred to above meet my concern. These undertakings do not cause
any financial detriment to any employee covered by the Agreement nor do they result in any
substantial change to the Agreement. I have sought the views of the known bargaining
representatives for the Agreement. The SDA, AMIEU & AWU each advised that they
supported the undertakings.244 RAFFWU has advised that it does not have any views about
the undertakings.245 I accept the undertakings.
[176] On 3 December 2018, I received an unsolicited submission from Mr Allen Truslove,
who described himself as an actuary and statistician, concerning one aspect of the
superannuation clause of the Agreement. His submission did not disclose, as his website does,
that the majority of his “client work involves financial consulting and certification of Self
Managed Super Funds”.246 The submission was provided to Woolworths and to the
bargaining representatives. No-one suggested that I should take the submission into account. I
propose not to take it into account but would in any event note the submission:
makes a number of assertions unsupported by any evidence;
asserts generalised detriments associated with funds into which superannuation
contributions are made which:
concern insurance cover and potential fees; and
does not take account of differential earnings;
does not compare the superannuation clause of the Agreement to the
superannuation clause in the GRI Award; and
does not:
consider the other beneficial terms in the Agreement compared to the
GRI Award;
attach any weight to those terms; or
seek to balance the bargaining terms against the claimed detriment.
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 http://www.truslove.com.au/Services.htm
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[177] The submission is of no assistance. No party appearing before me suggested the
Agreement did not pass the BOOT by reason of the superannuation clause. I do not consider
that it does not pass the BOOT.
[178] Save for the matters identified it is not suggested in respect of any other employees
and I am satisfied based on the assessment conducted, vis-a-vis all other award covered
employees and prospective award covered employees that the Agreement passes the BOOT.
Taking into account the undertakings I am satisfied the Agreement passes the BOOT. The
requirement in s.186(2)(d) is therefore met.
[179] As I have already noted, the Agreement does not cover all of Woolworths’ employees.
Neither is the group of employees covered by the agreement geographically, operationally
organisationally distinct. Nevertheless for the reasons earlier stated, I am satisfied the group
of employees covered by the Agreement was fairly chosen. The requirement in s.186(3)
taking into account s.186(3A) is therefore met.
[180] Section 186(2)(d) requires a consideration whether the Agreement contains any
unlawful terms. Save for the matters earlier identified, I am satisfied that the Agreement does
not contain any unlawful terms. As to the matters identified, I am satisfied that those terms are
not unlawful terms for the reasons already stated. Section 186(2)(d) is therefore met.
[181] The requirement in s.186(4A) concerns outworker terms and does not arise in respect
of the Agreement.
[182] The Agreement specifies a nominal expiry date being four years from the date the
Agreement is approved by the Commission. The requirement in s.186(5) is therefore met.
[183] Clause 22 of the Agreement contains a dispute resolution term. It allows the
Commission to settle disputes about matters arising under the Agreement and in relation to
the NES. It also allows for the representation of employees covered by the Agreement for the
purposes of the procedure. The requirement in s.186(6) is therefore met.
[184] There is no material before me, nor has it been suggested by any person making a
submission in relation to the Agreement, that the approval of the Agreement would be
inconsistent with or undermine good faith bargaining by one or more of the bargaining
representatives for the proposed Agreement. There is also no scope order in operation. I am
therefore satisfied that the requirement in s.187(2) is met.
[185] The requirement in s.187(3) has no application to this Agreement since it concerns a
multi-enterprise agreement.
[186] Section 187(4) requires the Commission to be satisfied as referred to in any of the
provisions of Subdivision E of Division 4 (ss.196-200). Sections 197-200 have no application
in relation to the Agreement.
[187] Section 196 of the Act is concerned with ensuring that a shiftwork employee who is
covered by an enterprise agreement and is entitled to an additional week’s leave under the
NES because an award that is in operation and covers an employee, describes that employee
as a shiftworker for the purposes of the NES, continues to be so entitled when the agreement
is in operation. When s.196 applies, the Commission must be satisfied that an enterprise
[2019] FWCA 7
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agreement also defines or describes the employee as a shiftworker for the purposes of the
NES.
[188] Clause 32.2 of the GRI Award defines or describes the kind of employee that is a
shiftworker for the purposes of the NES. Such an employee is covered by the Agreement.
Section 196 is therefore engaged. Clause 13.9 of the Agreement defines or describes such an
employee as a shiftworker for the purposes of the NES in the same terms as the GRI Award. I
am satisfied therefore that the Agreement defines or describes the employee as a shiftworker
for the purposes of the NES. The requirement in s.187(4) is met.
[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
[2019] FWCA 7
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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:
247 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"
VOISSINNO
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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
Printed by authority of the Commonwealth Government Printer
AE501243 PR703553
[2019] FWCA 7
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Annexure A
IN THE FAIR WORK COMMISSION FWC Matter No .: AG2018/6144 Applicant Woolworths Group Limited and Woolworths (South Australia) Pty Ltd Section 185 - Application for approval of a single enterprise agreement Undertaking- Section 190 1. Jannifer Kerr. Workplace Relations Manager for Woolworths Group Limited and Woolworths (South Australia) Pty Ltd give the following undertakings with respect to the Woolworths Supermarkets Agreement 2018 ("the Agreement"): 1. I have the authority given to me by Woolworths Group Limited and Woolworths (South Australia) Pty Ltd (Woolworths) to provide this undertaking in relation to the application before the Fair Work Commission. 2 Under clause 4.5(b) of the Agreement. an existing team member who enters into an Apprenticeship Agreement with Woolworths as an adult apprentice will not suffer a reduction in their base rate of pay by virtue of entering into the Apprenticeship Agreement, provided that the team member has been employed by Woolworths for at least six months as a full-time team member or twelve months as a part-time team member or regular and systematic casual team member immediately prior to commencing the apprenticeship 3 Under clause 4.7 of the Agreement a Trainee will be paid an hourly rate which is at all times at least 1.25% above the minimum rate prescribed in Schedule E of the Miscellaneous Award 2010 for the Trainee's classification For the purpose of the approval of the Agreement the hourly rates payable to Trainees under the Agreement upon commencement of the Agreement shall be: Modern Award Classification Agreement Classification Agreement Rate Wage level A part-time trainee Retail employee level 1 (trainee) $21.88 completed year 12 with 3 years out of Retail employee level 2 (trainee) $21 88 schooling Clerical Assistant Level 1 (trainee) $21 88 4 These undertakings are provided on the basis of concerns raised by the Fair Work Commission in the application before the Fair Work Commission Signature 28/12/2018
