[2024] FWCFB 314
The attached document replaces the document previously issued with the above code on 22 July
2024.
A comment in the margins of the decision was removed.
Associate to Justice Hatcher
22 July 2024
1
Fair Work Act 2009
s.185—Enterprise agreement
Woolworths Group Limited
(AG2024/2300)
WOOLWORTHS AUSTRALIAN FOOD GROUP AGREEMENT 2024
Retail industry
JUSTICE HATCHER, PRESIDENT
DEPUTY PRESIDENT COLMAN
COMMISSIONER MATHESON
SYDNEY, 22 JULY 2024
Application for approval of the Woolworths Australian Food Group Agreement 2024.
[1] Woolworths Group Limited (Woolworths) has made an application under s 185 of the
Fair Work Act 2009 (Cth) (FW Act) for approval of an enterprise agreement known as the
Woolworths Australian Food Group Agreement 2024 (Agreement). The application was
accompanied by a Form F17A declaration made by Jannifer Kerr, Woolworths’ head of
industrial relations, which sets out the steps that were taken by the company to comply with the
pre-approval requirements in the FW Act, and explains why in the opinion of Woolworths the
Agreement passes the ‘better off overall test’ (BOOT) requirement for approval. Attached to
the declaration are explanatory materials that Woolworths provided to employees before they
voted on the Agreement, as well as documents relating to other pre-approval requirements.
[2] We note that, as the notice of employee representational rights in this matter was given
on 5 December 2022, before the commencement of Part 14 of the Fair Work Legislation
Amendment (Secure Jobs, Better Pay) Act 2022, the provisions of the FW Act as they were
immediately prior to 6 June 2023 apply to the requirement for enterprise agreements to be
‘genuinely agreed’ in order to be approved.1 However, because the Agreement was made on 19
June 2024, the current BOOT provisions of the FW Act apply.2
[3] On 1 July 2024, the Full Bench raised three issues with Woolworths concerning the
approval requirements for the Agreement and issued directions to Woolworths and the
bargaining representatives to file materials in relation to the application more generally. The
issues raised by the Full Bench were these:
A. In respect of part-time employees, is the requirement in clause 8.1 of the
Agreement concerning the provision of an ‘agreed standard roster’ the same in
substance as, or different to, the requirement in clause 10.5 of the General Retail
[2024] FWCFB 314
DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 314
2
Industry Award 2020 (Award) for an agreed regular pattern of work at the time of
engagement?
B. Can the applicant confirm that when it alters a part-time employee’s standard
roster pursuant to clause 9.1 of the Agreement, this cannot result in a reduction of
the employee’s contract hours under clause 8.1(a)(i)?
C. Clause 6.1(a) of the Agreement provides that the span of ordinary hours on each
day extends to 11:00 pm. Currently in respect of Woolworths’ operations, does
clause 15.2(c) of the Award apply such as to extend the span of hours to 11:00 pm
under the Award? If not, is this issue to be taken into account in the application of
the better off overall test?
[4] In response to issue A, Woolworths confirmed that clause 8.1 of the Agreement, read
with clause 7.2(a) which deals with the timing of meal breaks which can only be changed by
agreement, was the same in substance as the requirement in clause 10.5 of the Award for an
agreed regular pattern of work at the time of engagement. In respect of issue B, Woolworths
confirmed that when it alters a part-time employee’s standard roster under clause 9.1 of the
Agreement, this cannot result in a reduction of contract hours under clause 8.1(a)(i). As to issue
C, Woolworths affirmed that clause 15.2(c) of the Award would currently operate to extend the
span of ordinary hours to 11:00 pm on all days of the week. These responses address our
concerns.
[5] The bargaining representatives for the Agreement were the Shop, Distributive and
Allied Employees Association (SDA), the Australian Workers’ Union (AWU), the Australasian
Meat Industry Employees Union (AMIEU), Retail and Fast Food Workers Union Incorporated
(RFFWU Inc), Anthony Hicks and Rhys Michie.
[6] The SDA and the AWU filed form F18 declarations in support of the application for
approval of the Agreement. The AMIEU, RFFWU Inc and Mr Hicks filed declarations
opposing the application on the basis that various approval requirements were not met.
AMIEU objections
[7] The AMIEU raised three primary objections. The first was that the approval requirement
in s 186(4) of the FW Act was not met because the Commission could not be satisfied that the
Agreement contained no ‘unlawful terms’, and specifically, no ‘objectionable terms’ (see
ss 186(4) and 194(b)). Such a term is one that ‘requires, has the effect of requiring, or purports
to require or have the effect of requiring’, or that ‘permits …’ etc a contravention of Part 3-1
(see s 12). The term that was of concern to the AMIEU was clause 24, which is headed ‘Union
recognition’ and confers certain benefits on the SDA and the AWU but not the AMIEU in
respect of noticeboards, union fees, delegates’ rights, and the dispute resolution procedure. The
AMIEU contended that these benefits had the effect of requiring or permitting a contravention
of s 350, which states: ‘An employer must not induce an employee to take, or propose to take,
membership action.’ A person takes ‘membership action’ if the person ‘becomes, does not
become, remains or ceases to be, an officer or member of an industrial association’ (s 350(3)).
[8] Several provisions in clause 24 were said to be objectionable. First, the AMIEU said
that the effect of clause 24.4(b) was that employees who were members of the SDA and the
AWU did not need the consent of Woolworths for their disputes with the company to be
[2024] FWCFB 314
3
arbitrated by the Commission, whereas in all other cases, such consent was required. This
submission is not accurate. In fact, the consent of both parties to a dispute is a universal
precondition for the Commission to arbitrate the matter (clause 23.3(b)(ii)). Clause 24.4(b)
states rather that where an employee is ‘accompanied or represented’ by the SDA or the AWU
in relation to the dispute, Woolworths will provide its consent to arbitration. In effect,
Woolworths provides standing consent to arbitration in such cases.
[9] The AMIEU contended that if it cannot represent its members in their disputes with
Woolworths, it would not be able to do its job effectively, and, as we understood the contention,
this might lead employees to resign from their membership of the AMIEU. In our view, it is at
least arguable that Woolworths’ standing consent to arbitration for those employees
accompanied or represented by the SDA or AWU, but not the AMIEU, might ‘have the effect
of permitting’ a contravention of Part 3-1 by inducing an employee to take ‘membership action’
by resigning from the AMIEU. This gave rise to a relevant concern on our part which we
communicated to Woolworths at the hearing conducted on 12 July 2024. We make clear that it
is not the mere fact that the clause differentiates between registered unions that created the
concern. As the Full Bench said in Coles Retail Enterprise Agreement 2024,3 it is a normal and
acceptable incidence of bargaining that some unions may play a more prominent role than
others and have greater influence in negotiating terms and conditions, including in relation to
union-related matters. This may result in different rights for different unions. The concern arises
because the differential treatment of unions is connected to employees’ access to an important
benefit, namely access to arbitration of a dispute, which might be especially important for part-
time employees in disputes concerning changes to working arrangements. Of course, that the
Commission holds a ‘concern’ in relation to an approval requirement does not signify that it
has reached any conclusion about the matter.
[10] The AMIEU submitted more broadly that clause 24 of the Agreement contains other
membership inducements which granted special rights to the SDA and the AWU but not the
AMIEU in respect of union noticeboards, deduction of union fees, and paid leave of up to six
shifts per year to attend courses conducted or approved by the SDA or AWU. We reject this
submission. How employees would be motivated to take membership action in respect of such
matters was not explained by the AMIEU, nor is it apparent to us. Section 350A of the FW Act
now requires that employers not unreasonably hinder, obstruct or prevent the exercise of the
rights of workplace delegates under the FW Act or a fair work instrument. Among the rights of
workplace delegates in s 350C is an entitlement to ‘reasonable access’ to the workplace and
workplace facilities where the enterprise is being carried on, and, unless the employer is a small
business employer, which is not relevant here, ‘reasonable access to paid time, during normal
working hours, for the purposes of related training’. In light of these statutory rights for
workplace delegates of any registered employee organisation, which cover substantially the
same field as the remaining provisions in clause 24 of the Agreement, the contention of the
AMIEU that those provisions may induce employees to take membership action is in our view
untenable.
[11] In response to our concern as identified in paragraph [9] above, on 16 July 2024
Woolworths proffered an undertaking under s 190 of the FW Act to the effect that the AMIEU
shall be included within the definition of ‘Union’ for the purpose of clause 24.4(b) of the
Agreement. The result of this is that the positions of all relevant registered employee
organisations are equivalised under the clause.
[2024] FWCFB 314
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[12] We have sought the views of the bargaining representatives about the proposed
undertaking in accordance with s 190(4). The AMIEU and RFFWU Inc opposed the
undertaking on the ground that it could not address the Commission’s concern because
clause 24 more broadly would remain an objectionable provision. We reject this for the reasons
already given. Additionally, we are not persuaded on the basis of the material before the
Commission that clause 24.4(b), as amended by the proposed undertaking, would actually
motivate employees to take or propose to take membership action. We would not construe the
clause as authorising Woolworths to act unreasonably or capriciously in its consideration as to
whether to grant consent. Nor do we consider that the clause is to be construed as permitting
Woolworths to act unlawfully by refusing consent on the ground of non-union membership. As
such, we are not persuaded that clause 24.4(b), as modified by the undertaking, requires,
permits, purports to require or permit or has the effect or requiring or permitting action on the
part of Woolworths that would amount to a contravention of Part 3-1 of the Act such as to make
it an objectionable term. There is no basis for us to seek or accept further undertakings as
proposed by the AMIEU, which would have the AMIEU explicitly stated to be a union with
coverage at Woolworths and deemed to be a union for the purposes of clause 1.3 and clause 24
generally. These matters travel beyond the ambit of the concern that we have outlined above.
Woolworths’ undertaking, which is appended to this decision as Attachment A, meets our
concern. We are satisfied that it does not cause financial detriment to any employees and will
not result in substantial changes to the Agreement, and we therefore accept it.
[13] The AMIEU’s second objection to the approval of the Agreement was that the
requirement in s 186(2)(a) of the FW Act had not been met because the Agreement had not
been genuinely agreed to by employees covered by the Agreement.
[14] The AMIEU submitted that a necessary condition for genuine agreement was absent,
namely the employer’s compliance with its obligation in s 180(5) to explain to employees the
terms of the Agreement and the effect of those terms. The concern here was essentially
threefold. One was that employees were not informed that the wages of Jack Butler and Staff
(JB&S) workers would be reduced under the Agreement. A second was that explanatory
material provided to employees by Woolworths and the SDA was misleading in relation to the
pay and benefits provided to employees under the Agreement. A third was that Woolworths’
‘messaging’ in relation to the eligibility for employees to receive gift cards was confusing and
wrongly suggested that employees would only receive a gift card if they voted ‘yes’.
[15] We reject these contentions. First, it is clear that the explanatory materials provided by
Woolworths to employees did address the terms of the Agreement that would affect JB&S
employees. For one thing, explanatory materials explicitly identified, by red colour-coding, that
the rates of pay for JB&S employees were ‘worse’ than those provided under their current
enterprise agreement (see attachment U to the F17A declaration). Employees were also told
that, although it was not a term of the Agreement, Woolworths had agreed to make a payment
to eligible JB&S employees to mitigate the impact of receiving a lower base rate of pay (see
attachment R to the F17A declaration). In his witness statement, Mr Hicks said that non-JB&S
employees had not been told that their colleagues would receive a reduction in the base rate of
pay, and that they had been denied an opportunity for altruism by voting against the Agreement
out of concern for their JB&S colleagues. But this is not correct. Employees had access to the
explanatory material addressing the pay arrangements for JB&S employees.
[16] Secondly, contrary to the AMIEU’s submissions, the explanatory materials concerning
wage increases under the Agreement were not false or misleading by reason of the fact that
[2024] FWCFB 314
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employees would receive a wage increase under the Award in any event. Woolworths told
employees that the Award rates would increase.
[17] Thirdly, we find nothing misleading about the explanatory materials relating to gift
cards. These materials included a ‘key changes’ summary document (attachment O to the F17A
declaration) which stated that, while it was not a term of the Agreement, eligible team members
would receive an additional benefit ‘at the time of a “yes” vote’ in the form of gift cards.
Contrary to the submission of the AMIEU, this was clearly a reference to the overall outcome
of a vote on the Agreement; viewed objectively, as it must be, this did not imply that employees
would receive a gift card only if they personally voted in favour of the Agreement. Eligibility
for gift cards was clearly explained to employees by Woolworths: they had to be employed at
the date of the close of the vote and when the gift card was provided, and must have worked at
least one shift in seven of the 10 weeks prior to the end of the vote. There was no requirement
that an employee must have cast a ‘yes’ vote. Further, Woolworths’ responses to FAQs made
available to employees on 4 June 2024 specifically explained that eligibility for gift cards was
not linked to union membership or how employees voted.
[18] The AMIEU further contended that aspects of the process leading to the approval of the
Agreement by employees were unfair and that this was a reasonable ground for the Commission
to doubt that the Agreement had been genuinely agreed to by employees (s 188(1)(c)). It said
that bargaining representatives and delegates were denied access to Woolworths’ internal
platform ‘WorkJam’, which is used to communicate work-related messages to employees and
to facilitate discussions about operational matters. The AMIEU submitted that its delegates
were not able to use it to discuss the Agreement during the access period, which was said to
have contravened the new delegates’ rights provisions in s 350A of the FW Act, and to have
amounted to unfair conduct under s 228(1)(e).
[19] None of these contentions leads us to apprehend that the Agreement was not genuinely
agreed to. First, we are not persuaded that the decision of Woolworths to restrict access to
WorkJam was unfair or a reason to doubt the genuineness of employees’ approval of the
Agreement. Woolworths was required to explain the terms of the Agreement in accordance with
s 180(5). It was not required to disseminate a ‘no case’ or to facilitate group discussions.
Secondly, the contention concerning s 228 is misconceived. This section is not referable to any
approval requirement. If the AMIEU thought that Woolworths was not complying with the
good faith bargaining requirements it could have made an application for appropriate orders at
the relevant time. Thirdly, ss 350A(1)(a), (b) and (c) do not engage with the approval
requirements for an enterprise agreement. Fourthly and in any event, we do not consider that
these provisions were contravened. It has not been established that the AMIEU’s opposition to
the proposed agreement amounted to an exercise in representing the interests of members or
persons eligible to be members of the AMIEU by delegates, or that any such representation
reasonably required access to WorkJam to communicate with members. Further, there was
evidence that the platform was being used for extraneous purposes. Mr Hicks, who is an
AMIEU delegate, said in his witness statement that he had posted on WorkJam statements that
employees would be better off joining the AMIEU or RFFWU Inc and provided information
on how to resign from the SDA. It is difficult to see how such behaviour would be a reasonable
exercise of rights under s 350C or how it related to employees’ capacity to genuinely agree to
the Agreement. The misuse of WorkJam was evidently part of the reason why Woolworths
decided not to allow it to be used for discussions about the Agreement.
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[20] There is no proper basis for us to exercise the discretion in s 192, as the AMIEU invited
us to do in its written submissions. That section provides that the Commission may refuse to
approve an enterprise agreement if it considers that compliance with the terms of the agreement
may result in a person committing an offence against a law of the Commonwealth or being
liable to pay a pecuniary penalty in relation to a contravention of a Commonwealth law. We do
not consider that approval of the Agreement and any subsequent compliance with its terms
might have these consequences. The AMIEU said that Woolworths also denied bargaining
representatives and delegates access to other facilities, but cited only the example of
Woolworths not sending text messages. It cannot seriously be argued that Woolworths had any
obligation to arrange for text messages to be sent to employees on behalf of bargaining
representatives and delegates.
[21] The AMIEU’s third objection was that the Agreement did not pass the BOOT. It said
that employees engaged on fixed-term contracts under the Agreement would not be better off
overall because, under the Award, they could not be engaged on this basis. It further submitted
that employees who perform higher duties as store managers would not be better off overall
under the Agreement because they would not receive remuneration in the amount equal to the
level 8 rate of pay as they would have done under the Award.
[22] We reject these contentions. The fact that employees can be engaged on fixed-term
contracts under the Agreement is not a reason to conclude that they will not be better off overall
under the Agreement. The Award does not prohibit such engagement. It simply says nothing
about it. Secondly, we do not consider that the Agreement fails the BOOT in respect of
employees who perform higher duties as managers. In our assessment, such employees would
not be entitled to the level 8 rate of pay under the Award for the reasons given by Woolworths:
an employee asked to lead a store on a higher duties basis will not be required to exercise all of
the skills and duties of a store manager at level 8 under the Award. The assumption
underpinning the AMIEU’s contention is not correct. In any event, this single contingent
allowance, if less favourable in the manner contended for by the AMIEU, would not mean that
the employees concerned would no longer be better off overall under the Agreement than under
the Award, in light of the wages in the Agreement which will exceed Award rates in each year
of its nominal life. The AMIEU also contended that the Agreement did not pass the BOOT in
respect of part-time employees. We consider this argument below.
RFFWU Inc objections
[23] RFFWU Inc objected to the approval of the Agreement on the grounds that the
Commission could not be satisfied that it passed the BOOT. Like the AMIEU, RFFWU Inc
contended that part-time employees would not be better off overall under the Agreement
because the rates of pay in the Agreement are only marginally in excess of those in the Award,
and this small benefit was outweighed by the employer’s ability to alter their working
arrangements. We agree with RFFWU Inc and the AMIEU, and Woolworths accepted, that the
Agreement is somewhat less beneficial to part-time employees than the Award, in that it allows
Woolworths to change a standard roster, whereas clause 10.10 of the Award does not permit a
change to ‘guaranteed hours’. We also accept the submissions of RFFWU Inc to the effect that
predictability of working arrangements is of particular importance to part-time employees.
Nevertheless, the detriment is a relatively small one, particularly in light of the safeguards in
clause 9.1 of the Agreement and the fact that the number of contracted weekly hours cannot be
reduced. In our view the Agreement, which provides for higher rates of pay, is overall more
beneficial to part-time employees than the Award. RFFWU Inc contended that there was no
[2024] FWCFB 314
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specific, separately identifiable monetary benefit accruing only to part-time employees, but we
do not see how this affects the BOOT analysis. It may mean that the Agreement passes the
BOOT in relation to part-time employees by a margin that is smaller than for full-time
employees but this is of no consequence. Nor does it matter that the margin is a small one. What
matters is that the Commission be satisfied that for all award-covered employees and reasonably
foreseeable employees, a margin exists.
[24] It is also necessary to apply s 193A in our consideration of whether the Agreement
passes the BOOT. Relevantly, s 193A(2) requires the Commission to undertake a global
assessment of whether each employee concerned would be better off and s 193A(3) requires
the Commission to give consideration to the views of the employer, award-covered employees
and the bargaining representatives. In this last respect, we note that the F18 filed by the SDA
refers to some 31 respects in which it considers the Agreement to be more beneficial to
employees than the Award and expresses the view that the Agreement passes the BOOT. The
SDA, together with the AWU, represents about 42 per cent of all employees covered by the
Agreement (compared to less than 0.6 per cent represented by RFFWU Inc). We are satisfied
that the Agreement passes the BOOT.
[25] RFFWU Inc further contended that the Commission could not be satisfied that the
Agreement was genuinely agreed to by the employees covered by the Agreement. It advanced
12 arguments. First, it submitted that the employees who participated in the vote to approve the
Agreement included casual employees who were ineligible to vote because they were not
persons employed ‘at the time’, as opposed to persons who were not so employed but were
‘usually employed’.4 It said that of the 124,590 eligible voters, 48,106 were said by Woolworths
to have been casuals, and that it was aware that at least some casuals who were not employed
at the time had been asked to vote. In his witness statement, Joshua Cullinan said that, when he
learned that some 48,000 of the employees who voted on the Agreement were casuals, he
contacted his organisation’s membership. One member, Xanthe Magree, told him that she had
not worked a shift since 19 May 2024 but had nevertheless received a link to vote on the
Agreement. A second worker, who was not identified, had told Mr Cullinan that he had not
worked in the seven days prior to the start of the vote but had been permitted to cast a vote. Mr
Cullinan also said that he was aware from his experience representing employees of
Woolworths that there was a high ‘churn rate’ for casuals. RFFWU Inc submitted that
Woolworths appeared to have allowed all casuals to vote, or had set impermissibly wide
boundaries. It further contended that irrespective of the numbers, the vote lacked integrity
because the large number of casuals employees were less likely to be present in the workplace
at the time of the vote and were therefore less likely to have been exposed to information about
the Agreement and more likely to have been influenced by ‘inducements’ such as gift cards.
[26] At the hearing, Ms Kerr gave evidence that Woolworths had initially compiled a voter
list that included all casual employees. It then refined this list to produce a list of casuals as at
the end of the access period, immediately before the commencement of the vote. These casuals
were allowed to participate in the vote. Afterwards, Woolworths undertook a ‘cleansing’
exercise through an electronic process based on employee identification number whereby it
excluded casuals unless they fell into one of two categories: those who worked at least one shift
during the seven day access period immediately before the start of the vote (category 1); and
those who during the access period were rostered to work a shift the following week during the
voting period (category 2). Woolworths said that it had adopted this approach being mindful of
the difficulties that can arise in relation to ascertaining those casuals who are eligible to vote on
an enterprise agreement. Woolworths counted the votes of all casuals in categories 1 and 2 and
[2024] FWCFB 314
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contended that it was correct to do so. Section 181(1) states that an employer may request the
employees ‘employed at the time’ who will be covered by an agreement to approve it by voting
for it. It was clear from the authorities that the relevant ‘time’ was the entire seven-day access
period ending immediately before the vote. Casuals who worked a shift in this period were
plainly so employed. But so were casuals who at that time were on a roster to work the following
week. Woolworths contended that these were casuals who in reality were employed at the time
of the access period even though they did not work a shift in that week.
[27] In Appeal by Kmart Australia Limited5 (Kmart), the Full Bench concluded that the
‘time’ at which employees covered by the agreement had to be employed in order to be
requested to vote referred to in s 181(1) encompassed the whole of the access period in s 180(4)
and was to be equated with the ‘time’ referred to in s 180(2)(a).6 The Full Bench in Kmart
concluded that casual employees who had been engaged for the first time during the voting
period had not been ‘employed at the time’ at which employees were requested to vote.7 The
Full Bench did not say that existing casuals who did not work during the access period were
ineligible to do so. In our view, Woolworths’ contention that category 2 casuals were eligible
to vote has merit. These were not just casuals ‘on the books’ who might or might not have been
given further shifts. The fact that these employees had been allocated shifts on the roster is
evidence of the actuality and currency of their casual employment during the access period.
[28] However, it is not necessary for us to reach a concluded view on this matter. If ineligible
employees were allowed to participate in a vote on an enterprise agreement, it is necessary to
consider whether their votes could have affected the outcome. In Kmart, it was clear that they
could not have done so.8 And the same is the case here. Based on the evidence of Ms Kerr and
the declaration of Lokesh Yadav lodged by Woolworths after the hearing, which we accept,
there were 4,701 employees in category 2. Even if all of these employees were ineligible to
vote, and all of them had cast votes to approve the Agreement, this could not have affected the
outcome, because the ‘yes’ vote of 58,757 exceeded the ‘no’ vote of 35,997 by a margin of
22,760. Mr Cullinan’s evidence refers to two casuals who may not have been eligible to vote
but this is inconsequential. We note that there is no suggestion in this case that employees who
were eligible to participate in the vote were excluded from it. We are satisfied that employees
employed at the time who would be covered by the Agreement were asked to vote on it, as
required by s 181(1). The Agreement was approved in accordance with s 182(1) because a
majority of eligible voters who cast a valid vote approved the Agreement. We reject RFFWU
Inc’s alternative contention that irrespective of the numbers who voted in favour of the
Agreement, the vote lacked integrity. This contention does not engage s 181. We understand it
to pertain to s 188(1)(c). But we do not accept the premises of the argument. More generally
we do not consider that there are ‘other reasonable grounds’ for believing that the Agreement
was not genuinely agreed to by employees.
[29] RFFWU Inc, like the AMIEU, contended that Woolworths had failed to comply with
the requirement of s 180(5) to take all reasonable steps to explain to employees the terms of the
Agreement and the effect of those terms, and that for this reason the Agreement had not been
genuinely agreed. The remaining 11 of its 12 objections were directed at this contention. The
second objection was that Woolworths did not inform employees that some employees, namely
those at JB&S, would suffer reductions in base rates under the Agreement. But as we have said
above, this is not the case. RFFWU Inc’s own submissions later acknowledge this, where the
contention is made that Woolworths should have made it clearer to non-JB&S employees that
their colleagues would have a lower base rate under the Agreement. We accept in principle that
employees’ vote on an agreement can be motivated by concern for others as well as self-interest,
[2024] FWCFB 314
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but the relevant explanations were reasonable ones. Contrary to the submission of the objectors,
employees were not prevented from acting altruistically.
[30] The third and fourth objections of RFFWU Inc were that Woolworths had
misrepresented to employees that they would have better wages, higher wages, or guaranteed
wages if they voted for the Agreement, when in fact some employees would suffer wage
reductions; and that it was not correct, or misleading, to say that employees would have better
wages at all. But these contentions focus on the position of JB&S employees and are in
substance a recapitulation of the second objection, which we reject.
[31] RFFWU Inc contended, fifthly, that Woolworths misled employees by stating or
suggesting that employees would only receive better or higher wages if the Agreement was
voted up, when in reality the Commission’s annual wage review (AWR) decision of June 2024
would deliver a wage increase for employees irrespective of whether the Agreement was
approved by vote, as well as increases through the AWR in each of 2025, 2026 and 2027,
because of the effect of s 206 of the FW Act. It contended that what Woolworths ought to have
said to employees was that if the Agreement was approved, they would receive a greater
increase because the AWR would be applied to employees’ current actual rates rather than only
to the award minimum rates. Further, RFFWU Inc said that several employees had been told
that there would be no guaranteed wage increases unless there was an enterprise agreement. It
referred in this regard to the witness statements of Sigrid Ebbinghaus, Felix Berry, and Peter
Lawson. Ms Ebbinghaus said that a Woolworths manager told a group of some 8 employees,
of which she was one, that in order to increase wages a ‘yes’ vote was necessary and that the
manager did not specify that wages were increasing in the relevant award. Ms Ebbinghaus
stated that she then raised this, but the manager would not acknowledge that there would be
increases to wages through the Award increase even if there was a ‘no’ vote. However, the
words spoken by the manager in the exchange are not before the Commission. There is an
insufficient basis here to concluded that Woolworths’ explanation of the Agreement to the eight
employees or generally was impugned by this conversation. Mr Berry said in his statement that
an ‘SDA staff member’ told a group of employees that there would be no wage increase without
a ‘yes’ vote. But it is unclear who this person was or whether they were speaking for
Woolworths. And Mr Lawson said that an ‘SDA representative’ told him and other employees
something similar. But this was not a statement made by or on behalf of the employer. In any
event, s 180(5) sets a standard of reasonableness, not perfection. An errant statement by a
manager to a small group of employees would not necessarily mean that an employer had failed
to comply with the provision, particularly having regard to the entirety of the extensive
explanatory materials provided by Woolworths to its employees.
[32] Sixthly, RFFWU Inc contended that Woolworths had misrepresented that over the past
decade the Commission had increased award rates by at least 2 per cent, when in fact the 2020
increase was only 1.75 per cent. Also, the time period selected by Woolworths had excluded
2009, when no increase was awarded. RFFWU Inc said that it informed Woolworths about this
error but to its knowledge it was not corrected. RFFWU Inc said that Woolworths’ statements
to employees about historical award increases were evidently directed at the increases they
could expect under the Agreement, which are linked to increases in rates through the AWR.
But in our view these were minor matters that reflect no failure to take the reasonable steps to
explain the terms and effect of the Agreement as required by s 180(5).
[33] Seventhly, RFFWU Inc contended that Woolworths had failed to take reasonable steps
to explain the Agreement because it did not inform employees that the minimum hourly award
[2024] FWCFB 314
10
rate would increase in July 2024 to $25.65, irrespective of the outcome of the vote. Further,
prior to the access period, Woolworths had published wages tables comparing the Award and
the Agreement rates. On the first day of the access period, these were updated to reflect the 3.75
per cent increase in the Award rate that would flow through to the Agreement rate, but the
‘Award rate’ side of the table was not updated, giving the impression that the Agreement rates
would exceed the Award by a greater margin than was in fact the case. However, Woolworths
explained, and we accept, that the document was prepared before the outcome of the AWR was
known and within 24 hours of the decision being handed down the document was quickly
updated to include an asterisk indicating the quantum of the increase. The concern raised by
RFFWU Inc does not cause us to conclude that Woolworths failed to comply with s 180(5).
[34] Eighthly, RFFWU Inc said that Woolworths made, allowed and did not correct
misrepresentations that only members of the SDA were permitted to vote. We disagree. The
evidence does not support such a conclusion. Attached to a witness statement of Marie Gunner
was a photograph of a ‘flyer’ referring to an SDA information session which stated that non-
SDA members would not be allowed to vote on the Agreement. Plainly, this statement was false
if it is to be understood as referring to the vote on the Agreement. Ms Gunner said that a post
to a similar effect appeared on WorkJam and remained uncorrected during the voting period.
However, as RFFWU Inc acknowledged, Woolworths had provided employees with
explanatory material about how to vote which was accurate. The existence of an erroneous flyer
and post that are not attributable to Woolworths does not speak to any failure on its part to
comply with s 180(5).
[35] Ninthly, RFFWU Inc submitted that Woolworths had made misrepresentations about
employees’ eligibility for gift cards. These mirrored the contentions of the AMIEU, which we
have rejected above. The tenth objection of RFFWU Inc was that Woolworths and the SDA
removed materials which encouraged a vote against the Agreement, which was said to have
prevented employees from having access to information that could have informed them about
the effects of the terms of the Agreement. Its eleventh objection was that the company and the
SDA had restricted common channels of communications with the effect that employees could
not obtain ‘truthful’ information about the Agreement, by which it evidently meant information
prepared by RFFWU Inc and the AMIEU. But as we have said above in relation to the
objections of the AMIEU, while Woolworths had an obligation to take all reasonable steps to
explain the Agreement to employees, it had no obligation under Part 2-4 of the FW Act to
facilitate or allow RFFWU Inc or the AMIEU to distribute information about the Agreement to
employees. Finally, RFFWU Inc said that Woolworths and the SDA did not properly explain
the detriments of the Agreement because relevant explanations were ‘disguised’ as a result of
being ‘buried’ in online summaries, rather than presented clearly in all promotional materials.
Even if it is accepted that the explanatory materials presented the Agreement in a positive light,
we are satisfied that it was not misleading, either as to the terms of the Agreement or the effect
of those terms.
[36] We consider that Woolworths complied with s 180(5) of the FW Act. It took all
reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were
explained to employees employed at the time who would be covered by the Agreement.
[2024] FWCFB 314
11
Other submissions
[37] Mr Hicks filed written submissions in which he supported and elaborated upon the
submissions of the AMIEU. Our earlier disposition of the AMIEU’s submissions addresses the
matters raised by Mr Hicks.
[38] A number of employees covered by the Agreement sent correspondence to the
Commission expressing their opposition to the approval of the Agreement. Some do not engage
with approval requirements or are unparticularised. Others cover terrain that is dealt with above.
The correspondence from those employees does not cause us to have concerns that any of the
approval requirements for the Agreement have not been met.
Conclusion
[39] We are satisfied that, subject to the undertaking referred to at paragraph [11] above,
which is taken to be a term of the Agreement, the requirements of ss 186, 187 and 188 of the
FW Act have been met. The SDA, the AWU and the AMIEU have given notice under s 183
that they want the Agreement to cover them. As required by s 201(2) of the FW Act, we note
that the Agreement covers those organisations. Woolworths asked that we correct under s 218A
an obvious typographical error in the last line of clause 5.2 by replacing ‘orking’ with
‘working’. We do so but note that there is a growing number of s 218A applications seeking
minor editorial corrections, and that applicants should not expect that the Commission will
always exercise its discretion to grant them.
[40] The Agreement is approved as at the date of this decision. In accordance with
clause 1.1(a) of the Agreement and s 54(1)(b) of the FW Act, the Agreement will operate from
21 October 2024. The nominal expiry date of the Agreement is 17 April 2028.
PRESIDENT
Appearances:
R Dalton KC and M Minucci, counsel, for Woolworths Group Limited.
W Friend KC for the Shop, Distributive and Allied Employees Association.
B Swan for the Australasian Meat Industry Employees Union.
S Kelly, counsel, for the Retail and Fast Food Workers Union Incorporated.
A Hicks, bargaining representative, AMIEU delegate.
Hearing details:
THE FAIR WORK FAI COMMISSION THE
[2024] FWCFB 314
12
2024.
Sydney and Melbourne, by video using Microsoft Teams:
12 July.
[2024] FWCFB 314
13
Attachment A
Printed by authority of the Commonwealth Government Printer
AE525523 PR777222
1 Fair Work Act 2009 (Cth) sch 1 item 66.
2 Ibid sch 1 item 67.
3 [2024] FWCFB 250 [29].
IN THE FAIR WORK COMMISSION FWC Matter Number: AG2024/2300 Applicant: Woolworths Group Limited Section 185 - Application for approval of a single enterprise agreement Undertaking - Section 190 , Jannifer Kerr, Head of & Chapter Lead, Workplace Relations for Woolworths Group Limited and Woolworths (South Australia) Pty Ltd (Woolworths), give the following undertaking with respect to the Woolworths Australian Food Group Agreement 2024 (the Agreement): 1. I have authority given to me by Woolworths to provide this undertaking in relation to the application before the Fair Work Commission. 2. This undertaking is made in accordance with section 190 of the Fair Work Act 2009 (Cth) (FW Act) and Woolworths understands this undertaking will be taken to be a term of the Agreement applying while the Agreement is in operation pursuant to section 191 of the FW Act. 3. The Australasian Meat Industry Employees Union shall be included within the definition of a "Union" for the purpose of clause 24.4(b) of the Agreement. This undertaking is provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission. Signature: Date: 16 July 2024
https://www.fwc.gov.au/documents/agreements/approved/AE525523.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb250.pdf
[2024] FWCFB 314
14
4 National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98, 232 FCR 246, 251
IR 209.
5 [2019] FWCFB 7599, 291 IR 233.
6 Ibid [33].
7 Ibid [37].
8 Ibid [43].
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7599.htm
