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Woolworths Supermarkets Agreement 2018

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[2019] FWCA 7 DECISION Fair Work Act 2009 s.185 - Application for approval of a single-enterprise agreement Woolworths Group Limited T/A Woolworths (AG2018/6144) WOOLWORTHS SUPERMARKETS AGREEMENT 2018 Retail industry DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 7 JANUARY 2019 Application for approval of the Woolworths Supermarkets Agreement 2018; consideration of approval requirements; consideration of undertakings; some undertakings accepted; satisfied approval requirements have been met; agreement with undertakings approved. 1. Introduction [1] Woolworths Group Limited and Woolworths (South Australia) Pty Limited have made an agreement titled Woolworths Supermarkets Agreement 2018 (Agreement) covering certain groups of their employees. Woolworths Group Limited is a bargaining representative for the Agreement and has applied under s.185 of the Act for the approval of the Agreement. Woolworths Group Limited and Woolworths (South Australia) Pty Limited are single interest employers within the meaning of s.172(5) of the Fair Work Act 2009 (Act) and I will hereafter for convenience refer to them as “Woolworths”. The application was lodged on 1 November 2018 and was accompanied by a statutory declaration of Ms Jannifer Kerr, Workplace Relations Manager of Woolworths. [2] The Shop Distributive and Allied Employees Association (SDA), the Australasian Meat Industry Employees Union (AMIEU), and The Australian Workers’ Union (AWU), collectively “the Unions”, are bargaining representatives for the Agreement and each gave notice wanting to be covered by the Agreement. The Unions have each lodged statutory declarations in support of the Agreement’s approval. The Retail and Fast Food Workers Union Incorporated (RAFFWU) is also a bargaining representative having been appointed by a number of employees in relation to the proposed agreement. RAFFWU opposes the approval of the Agreement on various bases. [3] I have determined to approve the Agreement with undertakings. These are my reasons for doing so. 1 [2019] FWCA 7 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 2 [2019] FWCA 7 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 3 [2019] FWCA 7 [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.
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