//
[138]
[2019] FWCFB 2355
General information, not legal advice.
Fair Work Commission (Full Bench)
2019-05-10
Original judgment source is linked above.
s.604 - Appeal of decisions
Retail and Fast Food Workers Union Incorporated
Woolworths Group Limited; Woolworths (South Australia) Pty Ltd; Shop, Distributive and Allied Employees Association; Australian Workers' Union; Australasian Meat Industry Employees Union
Appeal against decision [2019] FWCA 7 of Deputy President Gostencnik at Melbourne on 7 January 2019 in matter number AG2018/6144.
[1] The Retail and Fast Food Workers Union Incorporated (RFFWUI) has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision issued by Deputy President Gostencnik on 7 January 2019[1] (Decision). The Decision concerned an application made by Woolworths Group Limited and Woolworths (South Australia) Pty Ltd (collectively "Woolworths") for approval of the Woolworths Supermarkets Agreement 2018 (2018 Agreement) on the basis of the acceptance of a number of undertakings. The 2018 Agreement covers approximately 107,000 employees engaged in 1,009 Woolworths stores across Australia. The RFFWUI acted as bargaining representative for about 105 of these employees in the negotiations for the 2018 Agreement, and opposed the approval of the agreement on a number of grounds. The other bargaining representatives for the 2018 Agreement, namely the Shop Distributive and Allied Employees' Association (SDAEA), the Australasian Meat Industry Employees Union (AMIEU) and the Australian Workers' Union (AWU), all supported the approval of the 2018 Agreement. The RFFWUI contends in its appeal that the Deputy President erred in approving the 2018 Agreement and seeks that the Decision be quashed. The appeal is opposed by Woolworths, the SDAEA, the AMIEU and the AWU, which all contend that permission to appeal should not be granted or, in the alternative, that the appeal should be dismissed if permission is granted.
[2] The factual background to this matter is set out in detail in the Decision[2] and may be summarised briefly as follows. In October 2014, Woolworths initiated or agreed to bargain for an enterprise agreement to replace the Woolworths National Supermarkets Agreement 2012 (2012 Agreement). On 21 October 2014 a notice of employee representational rights (2014 NERR) was sent by Woolworths to all Woolworths supermarket store managers, with attached instructions to display the 2014 NERR on the noticeboards in Woolworths stores and place another copy in a prominent location within the stores by 27 October 2014. Along with the 2014 NERR, Woolworths communicated that it would soon be commencing negotiations for a new agreement which would, like the 2012 Agreement, apply to non-salaried employees in all Woolworths stores. In October 2015 Woolworths made a decision to extend coverage of its proposed new Agreement to non-salaried employees in its Metro stores, and in November 2015 it gave those employees a notice of employee representational rights (2015 NERR) by displaying them on a noticeboard in each metro store.
[3] Negotiations involving Woolworths and the three unions took place in 2014 and 2015, but petered out in early 2016, with the last bargaining meeting occurring on 12 February 2016. Despite the lack of active bargaining, on 17 November 2017 the RFFWUI sent an email to Woolworths in which it stated that it had been appointed as the bargaining representative for a number of employees. Attached to the email was a log of claims and a number of signed instruments of appointment of a bargaining representative.
[4] In or around January 2018 Woolworths became concerned about the validity of the 2014 NERR and the 2015 NERR due to them having been printed with the Woolworths logo on them. From 29 January to 2 February 2018, Woolworths sent letters to the unions and the RFFWUI to inform them of its concerns as to the validity of the previous NERRS and to formally notify them that Woolworths had ceased bargaining for a proposed agreement to replace the 2012 Agreement. Woolworths' letter also stated that it would shortly advise its team members that it wished to commence a new period of bargaining and issue a NERR in accordance with the requirements of the FW Act. On 2 February 2018 Woolworths informed the unions and the RFFWUI that it intended to recommence bargaining. From 6 to 12 February 2018, Woolworths sent to its store managers a new notice of employee representational rights (2018 NERR) together with instructions to provide the 2018 NERR to employees by displaying it on a noticeboard that was "in a prominent position" in the stores. The 2018 NERR was also sent directly to employees who were on leave during this period.
[5] The first bargaining meeting was held on 7 February 2018, and was attended by representatives of Woolworths, the three unions and the RFFWUI. There followed 12 bargaining meetings attended by Woolworths and all the bargaining representatives of employees, with the last of these occurring on 20 June 2018. There were then a further 14 bargaining meetings of which ten involved Woolworths and the three unions only, three with the RFFWUI only, and only one (on 17 August 2018) with all the bargaining representatives of employees present. At the 17 August 2018 meeting, an in-principle agreement was reached between Woolworths and the three unions. A vote for the proposed agreement took place in the period from 11 to 22 October 2018. The result was that 62% of employees covered by the 2018 Agreement cast valid votes, and 93% of these voted to approve the agreement. On 1 November 2018 Woolworths lodged the application to approve the 2018 Agreement, and on the same day the SDAEA, the AMIEU and the AWU lodged Form F18 statutory declarations supporting the approval of the agreement.
[6] As earlier stated, the RFFWUI opposed the approval of the 2018 Agreement on a number of grounds. The contentions which it advanced at first instance may be summarised as follows:
No valid notice of employee representational rights had ever been given to employees in respect of bargaining for the 2018 Agreement, for the following reasons:
1.1 Woolworths had initiated bargaining in 2014, and had never subsequently advised employees that such bargaining had ceased, nor could it validly cease bargaining short of a new enterprise agreement being made in any event. There was therefore no new notification time in 2018.
1.2 The 2014 NERR and the 2015 NERR were invalid because:
1.2.1 they contained impermissible material (the Woolworths logo), contrary to s 174(1A) of the FW Act;
1.2.2 they were not issued within 14 days of the notification time as required by s 173(3) of the FW Act; and
1.2.3 there was no evidence of the steps taken to give them to each employee who would be covered by the 2018 Agreement and was employed at the notification time for that agreement, so that there was doubt as to compliance with s 173(1) of the FW Act.
1.3 Alternatively, if there was a new notification time in February 2018, the 2018 NERR was not valid because:
1.3.1 the 2018 NERR was not given to salaried employees on the erroneous basis that they were not covered by the 2018 Agreement; and
1.3.2 Woolworths failed to take all reasonable steps to give the 2018 NERR to each employee who would be covered by the 2018 Agreement and was employed at the notification time for that agreement, as required by s 173(1). The noticeboards on which the 2018 NERR was placed were not a "conspicuous location at the workplace known by and readily accessible to the employee" as required by reg 2.04(7) of the Fair Work Regulations 2009 (FW Regulations). Such noticeboards were not the usual means of communication between Woolworths and its employees, and employees were not directed to read notices on the noticeboards that were used.
5.1 Woolworths represented to employees that under the 2018 Agreement, Woolworths would pay a laundering allowance to all employees, other than bakery employees whose uniforms were laundered by Woolworths. This was a misrepresentation of the effect of item 1 of cl 5.2 of the 2018 Agreement, which provides that "Where Woolworths requires a team member to launder any special uniform, dress or clothing, the team member will be paid the following applicable allowance: ...". Employees were required to dress in accordance with Woolworths' "preferred dress policy", but this did not constitute any "special uniform, dress or clothing" to which the laundering allowance applied.
5.2 Woolworths misrepresented to employees that gift cards were a benefit of the 2018 Agreement and that there was a benefit of a "one off payment of up to $1100" as an included change in the 2018 Agreement, when in fact the 2018 Agreement did not provide for either of these things as a term of the agreement, and more than 44% of employees covered would not receive any one-off payment.
[7] Section 173 of the FW Act sets out the requirement for the issue of a notice of employee representational rights as follows:
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into operation; or
(c) a scope order in relation to the agreement comes into operation; or
(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.
Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.
(5) The regulations may prescribe how notices under subsection (1) may be given.
[8] Regulation 2.04 of the FW Regulations has been made pursuant to s 173(5). It provides:
2.04 Notice of employee representational rights - how notice is given
(1) For subsection 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:
(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.
(7) The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee.
[9] Section 186 of the FW Act sets out a number of requirements which must be satisfied in order for an enterprise agreement to be approved by the Commission. It relevantly provides:
186 When the FWC must approve an enterprise agreement--general requirements
(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).
(a) if the agreement is not a greenfields agreement--the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.
Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).
Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).
Requirement that the group of employees covered by the agreement is fairly chosen
(3) The FWC 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, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
(4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).
[10] Section 188 defines when employees have genuinely agreed to an enterprise agreement for the purpose of the approval requirement in s 186(2)(a). Section 188 provides:
(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.
(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.
[11] For the purpose of the approval requirement in s 186(4), s 194 defines what is an unlawful term in an enterprise agreement. Section 194(ba) provides:
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;...
[12] It is necessary to refer to the Decision only insofar as it addresses the RFFWUI's contentions summarised above. In respect of the issues concerning the validity of the 2014 NERR, the 2015 NERR and the 2018 NERR (Contention 1), the first critical finding made by the Deputy President was that Woolworths ended the bargaining which had commenced in 2014 by way of the correspondence it sent to the three unions and the RFFWUI in the period 18 January to 2 February 2018, and was entitled to do so under the FW Act. In this respect the Deputy President said (footnotes omitted):
"[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...
[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 abused, that suggestion is answered in two ways. First, the Act makes provision for various forms of redress including bargaining orders and majority support determinations. 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 time, not any statement by an employer that it no longer wishes to bargain or on the giving of a NERR by the employer.
[68] On the evidence Woolworths informed the Unions and RAFFWU[3] 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."
[13] The Deputy President however addressed the alternative position, in that he determined that if he was in error in concluding that Woolworths was able to terminate the bargaining which commenced in 2014, he considered that the 2014 NERR and the 2015 NERR did not fail to comply with s 174(1A) and were not invalid merely because they included the Woolworths logo.[4] Alternatively, he said if this conclusion was incorrect, he would regard the inclusion of the logo as a minor procedural or technical error that was not likely to have disadvantaged employees, with the result that genuine agreement with the 2018 Agreement could not have been affected by reason of s 188(2).[5]
[14] In respect of the bargaining which commenced in 2014, the Deputy President had earlier in the Decision found that the applicable notification time was 21 October 2014.[6] In this respect the Deputy President reasoned as follows (footnotes omitted):
"[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. The precise date on which it did so is not readily apparent from the material in evidence. 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". 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. This step was to be completed by 27 October 2014.
[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". [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". 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. The results of the survey confirmed that the notices had been posted in accordance with the instruction.
[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." [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.
[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 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... I am therefore satisfied that the notification time in relation to the proposed agreement to which the 2014 NERR relates is 21 October 2014.
[15] On the basis of this finding, the Deputy President concluded that the 2014 NERR and the 2015 NERR were validly issued:
"[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. 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. It gave the 2015 NERR to the relevant employees using substantially the same method as noted in the preceding paragraph. It is not in contest that the 2015 NERR was validly given and I am so satisfied."
[16] The Deputy President went on to deal with the validity of the 2018 NERR. First, he found that Woolworths initiated bargaining on 2 February 2018 when it informed the unions and the RFFWUI that it intended to recommence bargaining.[7] Second, the Deputy President considered whether Woolworths took all reasonable steps to give the 2018 NERR to employees in accordance with s 173(1). He began by stating the view that compliance with the method of giving the notice of employee representational rights provided for in reg 2.04(7) would be sufficient to comply with the obligation in s 173(1) insofar as employees who were at work during the relevant period, but that a different step or steps would need to be taken for those who were not in attendance at work during that period (because they were on some form of leave).[8] The Deputy President then said:
"[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."
[17] The Deputy President then made the following findings of fact in respect of the giving of the 2018 NERR (footnotes omitted):
"[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 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.
[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.
[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)."
[18] In respect of employees who were not in attendance at the workplace during the relevant period, the Deputy President found that Woolworths had posted the 2018 NERR to the home address of every such employee. In respect of the RFFWUI's submission that Woolworths should have taken additional steps to ensure employees were given the 2018 NERR, the Deputy President said:
"[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 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."
[19] Third, the Deputy President found that salaried employees were not covered by the proposed agreement described in the 2018 NERR, and were therefore not required to be given a copy of the 2018 NERR.
[20] The Deputy President stated his ultimate conclusion concerning the notices of representational rights 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."
[21] In respect of the "fairly chosen" issue (Contention 2), the Deputy President stated the following conclusions (footnotes omitted):
"[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 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. 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. It 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. 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."
[22] The Deputy President also rejected the RFFWUI's contention that the 2018 Agreement contained an unlawful term (Contention 3). In respect of clause J.1, it is not necessary to set out the Deputy President's reasoning because this matter was not sought to be re-agitated in the appeal. In respect of the exclusion of salaried employees from the scope of the coverage of the 2018 Agreement (in clause 1.2), the Deputy President found:
"[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 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."
[23] In respect of the alleged misrepresentations in contravention of s 180(5) (Contention 4), the Deputy President firstly found that there was no misrepresentation concerning the laundry allowance provision. The Deputy President found that there was no dispute that Woolworths (and the SDAEA) had represented to employees prior to the vote to approve the 2018 Agreement that the laundry allowance would be payable to employees who were required to launder their "preferred dress", and that this was consistent with Woolworths' stated intention at all relevant times.[9] The Deputy President concluded (footnotes omitted):
"[147] There is also correspondence passing between Woolworths and the bargaining representatives about laundry allowance being payable on preferred dress. In addition it appears that RAFFWU was aware of Woolworths' position on the payment of the laundry allowance by at least 1 October 2018. 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."
[24] The Deputy President then dealt with the alleged gift card and sign-on payment misrepresentations, and found (footnotes omitted):
"[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. There is also some further validation for the allocation of additional gift cards occurring. 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. 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 2018 and was aware of the position as to the maximum total value of the gift card and one-off payment. It had an opportunity to prepare and circulate its own communication. It posted on its Facebook page a copy of its correspondence of 18 September 2018 to Woolworths about the subject. 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."
[25] The grounds of appeal set out in the RFFWUI's notice of appeal dated 28 January 2019 are as follows (omitting the particulars provided):
The Commission erred in finding Woolworths "took all reasonable steps to give relevant employees employed at the notification time the 2018 NERR" because that finding is contrary to the overwhelming weight of evidence.
The Commission erred in finding that Woolworths "took all reasonable steps to give relevant employees employed at the notification time the 2014 NERR" because that finding is contrary to the overwhelming weight of evidence.
The Commission erred by finding that Woolworths took all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who will be covered by the agreement and is employed at the notification time for the agreement in circumstances where Woolworths purported to give such notice on 6 February 2018 and the notification time was not later than 22 January 2018.
The Commission erred by finding that the notification time for a proposed agreement in 2014 was 21 October 2014 because there was no evidence before the Commission from which it could determine the notification time.
The Commission erred by reaching a state of satisfaction that the group of employees was fairly chosen in circumstances where a discrimen of coverage is the method by which an employee is remunerated.
The Commission erred by failing to find that cl 1.2(b) was not an unlawful term.
The Commission erred in holding that Woolworths "took all reasonable steps to ensure that the terms of the agreement, and the effect of those terms" were explained to the relevant employees for the purposes of s 180(5) and in finding that Woolworths did not misrepresent the meaning and effect of cl 5.2 of the proposed agreement.
[26] With respect to grounds 1 and 2, the RFFWUI submitted that the conclusion reached by the Deputy President that Woolworths took all reasonable steps to give relevant employees the 2018 NERR by employing the purported standard process of posting notices on the notice boards was factually incorrect because the weight of the evidence showed that the use of notice boards was not a standard process and Woolworths principally adopted other means of communication with its employees. These included the use of online programs and portals and electronic messaging services. Furthermore it said the evidence showed that the use of noticeboards was rarely employed, that employees did not scan the noticeboards which were in use and that the notice boards were "obscure".
[27] With respect to ground 3, the RFFWUI submitted that the notification time was not 2 February 2018 but in fact not later than 22 January 2018, by which date Woolworths had agreed to bargain. Woolworths' agreement to bargain was evidenced by the fact that it conveyed to the RFFWUI on 22 January 2018 that it proposed to cease the current bargaining process and commence a new bargaining process, and had communicated the same to the SDAEA in a meeting on 18 January 2018. Consequently the 14-day period for giving the 2018 NERR to employees expired on 5 February 2018, but the 2018 NERR was in fact not given until 6 February 2018 or later, contrary to the requirement in s 173(3).
[28] With respect to ground 4, the RFFWUI submitted that there was no evidence upon which the Commission could determine the notification time for a proposed agreement in 2014, and having accepted this, the Deputy President erred by making a finding that the notification time was on 21 October 2014. The RFFWUI also submitted the Deputy President erred by conflating the initiation of bargaining (the notification time) with the commencement of bargaining (the giving of the notification of representational rights), and by wrongly asking the question whether "a" notification time could be identified when in fact the question was whether "the" notification time could be identified.
[29] As to grounds 5 and 6, the RFFWUI firstly submitted that three of the considerations taken into account by the Deputy President in determining that the group of employees was fairly chosen were irrelevant to the formation of the state of satisfaction required in making such a determination. Those considerations were that the exclusion of salaried employees existed in the two predecessor agreements, that there was no evidence that the RFFWUI considered during the bargaining process that the proposed scope of the 2018 Agreement was not fairly chosen, and that the reason for the exclusion was the traditional specification of coverage within Woolworths. Further, the RFFWUI contended that the Commission failed to have regard to its argument that the group was not fairly chosen because the effect of cl 1.2.b of the 2018 Agreement in that employees otherwise falling within the classifications described in cl 3.3 and Appendix A to the 2018 Agreement are excluded from the coverage of the agreement solely by reference to the criterion of whether they are remunerated by way of wages or salary. In respect of its submission that cl 1.2.b of the 2018 Agreement was an unlawful term, it was submitted that the Deputy President erred by misunderstanding the statutory scheme, in that s 194(ba) is concerned with any clause the practical effect of which Woolworths, or the relevant employee, can elect to remove themselves from the coverage of the agreement while performing the same work. The Deputy President also erred in holding that an employee who accepts an offer to move to a salaried remuneration structure is either promoted or elects to accept an offer to move to another classification, in that the there is no new position or other classification, merely a different remuneration method for the same job. The matters taken into account by the Deputy President in this respect were, it was submitted, irrelevant to the proper construction of s 194(ba).
[30] As to ground 7, the RFFWUI said that, because "preferred dress" is not "special clothing", Woolworths made an untrue representation when it said that the laundry allowance provided for in clause 5.2 would be "payable to everyone in preferred dress". Woolworths likewise made an untruthful representation that the provision of gift cards would be a term of the 2018 Agreement when no term of the agreement provided for this. The Deputy President erred by taking into account irrelevant matters in his consideration of this issue, including that the RFFWUI could have but did not circulate corrective statements concerning the misrepresentations, there was no evidence of any employee being misled, and there was no evidence that any employee would have voted differently if the alleged misrepresentation had been corrected. Further, Woolworths' position in the approval process concerning the payment of the laundry allowance could not influence the construction of the provision itself.
[31] The RFFWUI submitted that permission to appeal should be granted because:
the appeal was concerned with whether the statutory scheme was properly applied to the approval of an agreement affecting a very large number of employees;
it is in the public interest that employees and their representatives have confidence in the supervisory jurisdiction of the Commission in relation to the approval of such agreements;
grounds 1-3 of the appeal are concerned with whether the notice provisions of the statutory scheme, which are a fundamental part of the scheme concerning the provision of notice of representational rights, were complied with; and
the appeal raises, in some instances, new questions of law which have not previously been the subject of Full Bench determination including the proper construction and application of ss 186(4) and 194(ba) of the FW Act.
[32] For the reasons which follow, we have decided to refuse permission to appeal. Although, in determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal,[10] it is necessary for us to engage with those grounds to a limited degree in order to explain why we have determined to refuse permission to appeal and, in particular, to demonstrate that the grounds lack sufficient merit to justify the grant of permission to appeal.
[33] The RFFWUI's first four grounds of appeal relate to whether the requirements in s 173 for the issue of the notice of employee representational rights in respect of bargaining for the 2018 Agreement were complied with. The purpose of the notice of representational rights required to be issued by those provisions is to ensure that employees receive timely advice, in a prescribed form, concerning the rights conferred by s 176 for them to be represented by a bargaining representative in bargaining for a proposed agreement.[11] The first and fundamental point which must be made about these grounds of appeal is that they do not disclose that, in bargaining for the 2018 Agreement, there was any impairment in the achievement of that statutory purpose. In that respect:
there was no evidence that any employee did not actually receive, read or have the opportunity to read the notice of employee representational rights;
there were four bargaining agents (the three unions and the RFFWUI) actively and vigorously representing the interest of employees in the bargaining process;
there was no evidence that any employee was not represented by the bargaining agent of their choice (whether that be the RFFWUI or anybody else) in the bargaining process; and
the representation of employees referred to commenced at the very first bargaining meeting convened by Woolworths and continued throughout (albeit that in the later stages of the process Woolworths met with the RFFWUI separately from the three unions on a number of occasions).
[34] Secondly, we consider that the specific appeal grounds lack merit and, in at least one instance, raise issues which were not properly agitated in the proceedings before the Deputy President. In respect of appeal ground 1, the RFFWUI accepts that compliance with the prescribed method of giving the notice of employee representational rights in reg 2.04(7) would be sufficient to comply with s 173(1).[12] It is not in dispute that Woolworths directed that the 2018 NERR be posted on noticeboards in prominent locations in each Woolworths store. There was no evidence that, in any Woolworths store, the 2018 NERR was not posted on a noticeboard capable of being accessed by employees. The RFFWUI's case on appeal is based only on the proposition that the 2018 NERR was not displayed on noticeboards which were "in a conspicuous location at the workplace" and were "known and readily accessible to the employee" such that reg 2.04(7) was not complied with.
[35] Appeal ground 1 contends that the Deputy President's conclusion that Woolworths complied with s 173(1) and reg 2.04(7) in respect of the 2018 NERR was contrary to the "overwhelming weight of evidence". However the only evidence which supported the RFFWUI's position was that of Loukas Kakogiannis, who is employed on a part-time basis by Woolworths at its Moorabbin store in Victoria. His evidence was to the effect that:
Woolworths communicated to him in a number of ways, including by messages conveyed by managers in person or by two online portals which he could access;
the online portals were used for undertaking regular training modules, new contracts for staff members, leave requests, rosters and other communications;
pop-up notices at the point of logging into a point of sale were also used for communications;
he "expect[ed] all required communications from Woolworths Group to be either communicated to me in person by a manager, or online through the mechanisms regularly used by Woolworths Group";
he had never been directed by a manager or directed anyone as a supervisor to read printed notices on the walls in the team room;
in-store communications were made using online tools and the service area desk diary;
he had not seen the 2018 NERR in his store before being asked by representatives of the RFFWUI to find it;
he found it on 26 February 2018 on the top right of the board in the store team room "at least 5 feet from the ground";
"from speaking with co-workers", many staff did not use the team room, and it was not required to be used for clocking on and off, accessing the toilets or for conducting team meetings; and
it had not occurred to him that a notice would be put on this board, he had never been told what the board was for, he had never told the staff he supervised what the board was for, and he had never used the board to receive information.
[36] Taking this evidence as its highest, it is we consider incapable of demonstrating non-compliance with reg 2.04(7) even at the single store with which Mr Kakogiannis' evidence was concerned. That there were other conceivable ways in which the 2018 NERR might have been given to employees is not relevant to whether reg 2.04(7) was complied with, nor is Mr Kakogiannis' subjective belief about how Woolworths should communicate with him. The evidence does not in terms address whether the noticeboard was in a "conspicuous location", and it does not seem to us that the fact that some employees might choose not to use the team room (which, it appears, is reserved for the use of "team members", that is employees working in the store) is relevant to this issue. It was not suggested by Mr Kakogiannis that the existence of the noticeboard in the team room was not "known" to employees, and the team room was clearly "readily accessible" to employees. Regulation 2.04(7) does not require that the notice actually be read or even seen by all employees, let alone that it be read or seen by them at a particular time, as the Deputy President found.
[37] Against the very limited evidence of Mr Kakogiannis was that of Ms Jannifer Kerr, Woolworths' Workplace Relations Manager, upon which the Deputy President placed reliance. Paragraphs [90]-[92] of the Decision, which we have earlier quoted in full, summarise the effect of that evidence. That evidence included the important fact that the method used by Woolworths to give the 2018 NERR was the same as used by it in previous bargaining rounds since the FW Act was enacted. Ms Kerr's evidence clearly provided an evidentiary foundation for the conclusion reached by the Deputy President that the 2018 NERR was given as required by s 173(1) and reg 2.04(7). For these reasons, we consider that appeal ground 1 is entirely without merit, and that the overwhelming weight of the evidence supported the conclusion reached by the Deputy President.
[38] Dealing with appeal ground 3 next because it also concerns the validity of the 2018 NERR, we would not grant permission to appeal in respect of this ground because the issue it raises was never agitated in the proceedings before the Deputy President. We have earlier set out the contentions concerning the 2018 NERR advanced by the RFFWUI at first instance. The RFFWUI did not contend that the 2018 NERR was given later than 14 days after the new notification time in 2018 constituted by Woolworths' re-initiation of bargaining after it communicated the cessation of the 2014 bargaining round, with the result that the precise date of the notification time was not the subject of detailed attention in the proceedings or in the Decision. Permission to appeal will not usually be granted to allow a party to agitate a point which it did not raise at first instance and which might have been affected by further evidence which may have been adduced had the point been raised.[13]
[39] In any event, appeal ground 3 is without merit. The RFFWUI now seeks to contend that Woolworths initiated bargaining at a meeting which it attended on 22 January 2018, at which Woolworths foreshadowed that it intended to cease the 2014 bargaining round because of its doubt as to the validity of the 2014 NERR and the 2015 NERR, and then recommence bargaining using a new notice of representational rights. However Woolworths did not actually terminate the existing bargaining round until it formally communicated this to the three unions and the RFFWUI in the period 29 January - 2 February 2018. Self-evidently Woolworths could not recommence bargaining until it had terminated the previous bargaining. The 2018 NERR was given to all employees by 12 February 2018, 14 days after 29 January 2018. Section 173(3) was clearly complied with.
[40] The RFFWUI did not in its grounds of appeal challenge the correctness of the Deputy President's conclusion in paragraphs [66]-[68] of the Decision (quoted in full above) that Woolworths was entitled under the FW Act to terminate in 2018 the bargaining which commenced in 2014, and this conclusion was consistent with the Full Bench decisions in Re Uniline Australia Limited[14] and AMWU v Broadspectrum (Australia) Pty Limited.[15] That renders appeal grounds 2 and 4, which concern whether the 2014 NERR was given in accordance with s 173, entirely irrelevant. In any event, those appeal grounds are likewise without merit. Appeal ground 2 is concerned with the method adopted by Woolworths to give the 2014 NERR to employees. Since the evidence demonstrates that Woolworths gave the 2014 NERR to employees in substantially the same way as with the later 2018 NERR but with the additional step of posting it in another conspicuous location in each store, there is no basis to impugn the Deputy President's conclusion in paragraph [74] of the Decision (earlier set out) that the 2014 NERR was given in accordance with reg 2.04(7) and hence in accordance with s 173(1). Mr Kakogiannis' evidence did not even address the 2014 NERR. Appeal ground 4 invites a conclusion that the Deputy President's finding that the notification time in 2014 was on 21 October 2014 was in error without the RFFWUI identifying any evidence pointing to a different date or even contending that a different date was the correct date. The documentary evidence referred to in paragraphs [7]-[11] of the Decision, which we have earlier quoted in full, support the inference drawn by the Deputy President that Woolworths initiated bargaining when it sent the 2014 NERR to store managers to be posted on noticeboards. We see no reason why, where an employer unilaterally "initiates" - that is, starts - bargaining, this cannot be done by the act of issuing a notice of representational rights. Finally, the RFFWUI's contention that the Deputy President erred by referring, in paragraph [7] of the Decision, to "a" notification time rather than "the" notification time in 2014 has no substance; read in context, it is clear that the Deputy President used the indefinite article because he was seeking to distinguish the 2014 notification time from the 2018 notification time.
[41] These appeal grounds arise from the coverage term in clause 1.2 of the 2018 Agreement, which provides as follows:
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."
[42] In respect of ground 5 of the notice of appeal, which concerns whether the Deputy President erred in reaching a state of satisfaction pursuant to s 186(3) that the group of employees covered by the 2018 Agreement was fairly chosen, it is necessary to remember that the assessment required by s 186(3) involves a degree of subjectivity and the exercise of a very broad judgment or value judgment, and in a broad sense can be characterised as a discretionary decision.[16] We do not consider that appeal ground 5 discloses any arguable case of error in the exercise of the discretion by the Deputy President. The Deputy President found that the coverage of the 2018 Agreement was not geographically, operationally or organisationally distinct[17], but this did not preclude him from concluding that the coverage was fairly chosen, and the RFFWUI does not contend otherwise. It is not clear to us on what basis it is or could be contended that the considerations taken into account by the Deputy President were necessarily irrelevant to the exercise of the discretion, which was not apart from s 186(3A) guided by the terms of s 186. That the coverage chosen for the 2018 Agreement is the same as in previous Woolworths agreements that were approved by the Commission on the basis that they satisfied the requirements of s 186 of the FW Act is a self-evidently relevant matter which assists in explaining the business rationale for that coverage.[18] The attitude of the parties (such as the RFFWUI) during bargaining as to the coverage chosen was also plainly relevant.[19] It was never suggested during the proceedings before the Deputy President or before us that the coverage was chosen in order to manipulate the process to Woolworths' advantage.[20] The RFFWUI's contention that the exclusion from coverage of salaried employees was unfair never rose beyond the level of assertion.
[43] In relation to whether clause 1.2.b constituted an unlawful term within the meaning of s 194(ba), we consider that the reasoning of the Deputy President on this question in paragraphs [129]-[133] (set out above) is clearly correct, and appeal ground 6 does not raise any reasonably arguable contention of error. The 2018 Agreement is fundamentally structured on the basis that employees will be paid weekly or hourly rates of pay as applicable (clause 4), will be paid overtime rates for work in excess of specified daily, weekly or roster cycle limits (clause 10), and will receive penalty rates for work on evenings and weekends (clause 6) and public holidays (clause 19.2). It does not accommodate in any way the remuneration of employees on a salaried basis, and consistent with this salaried employees are excluded from coverage. The acceptance by an employee of an offer of a salaried position does not involve an election to opt-out of the coverage of the 2018 Agreement, but rather an election to accept a type of employment arrangement that was never covered by the 2018 Agreement and which is fundamentally different in its mode of remuneration than that for which the 2018 Agreement provides. Clause 1.2.b does not itself provide any means by which the employee or the employer may elect not to be covered by the 2018 Agreement.
[44] The correct position concerning the interpretation and application of s 194(ba) has been made clear in the recent Federal Court Full Court decision in CPB Contractors Pty Limited v CFMMEU[21] as follows (per O'Callaghan and Wheelahan JJ, with whom Flick J concurred):
"[66] There are a number of ways in which an employee might conceivably cease to be covered by an enterprise agreement, including by a change in the employee's particular employment. That might occur if an employee transfers from one geographically, operationally, or organisationally distinct area of an employer's business to another, in circumstances where there are different enterprise agreements in place which cover different employment: cf s 186(3A) of the FW Act. To cease coverage in this way would not need to depend upon any method of election provided for in an enterprise agreement.
[67] Focussing on the text of s 194(ba) in the context of the mischief to which it was directed, and in the context of other provisions of the FW Act, we consider that the provision is directed to a term of an agreement which itself provides the method by which an employee or employer may elect (unilaterally or otherwise) not to be covered by the agreement. The election must be by an employee or the employer. Newlands Coal provides an illustration, where the method provided for by the opt-out clauses in the agreement was an election in writing. In our view, it is essential to engage s 194(ba) that the term itself provide the method by which the employer or employee can make an effective election (unilaterally or otherwise) not to be covered by the agreement. Section 194(ba) is not engaged if there is no method of election provided for by a term of the agreement."
[45] The approach taken by the Deputy President was consistent with CPB Contractors.
[46] Appeal ground 7 alleges two misrepresentations on the part of Woolworths. The first concerns the laundry allowance provided for in item 1 of clause 5.2 of the 2018 Agreement, the terms of which we have earlier set out. The RFFWUI's position in relation to this provision is, we consider, as opportunistic as it is misconceived. It is common ground that Woolworths has a "preferred dress" policy which governs the standard of clothing which employees may wear at work without requiring that an actual uniform be worn. Woolworths represented to employees prior to the vote which approved the 2018 Agreement that the laundry allowance would apply to all employees except bakery employees (whose uniforms are laundered by Woolworths), and the RFFWUI contends that this representation would be understood as applying to those employees who wore "preferred dress". Woolworths' position at all relevant times has been that its representation was correct, that the clause does apply to preferred dress, and that its intention is to pay employees accordingly. The RFFWUI, against the interests of the employees whom it purports to represent, seeks that clause 5.2 be given a narrow construction so that it is read as not applying to preferred dress in order to endeavour to establish that there was a misrepresentation on the part of Woolworths. Such a construction would, for employees wearing preferred dress, deprive them of the benefit of the allowance, which amounts to $6.25 per week for full-time employees and $1.25 per shift for part-time and casual employees. We see no reason to grant permission to appeal to allow the RFFWUI to argue that employees should not receive a monetary benefit which Woolworths is willing to pay, merely to aid the RFFWUI's bid to overturn the whole agreement. Additionally, we consider that the expression "special ... dress or clothing" in clause 5.2 is readily capable of being read as encompassing preferred dress (particularly as the clause expressly distinguishes this from the narrower concept of a "uniform"). To the extent that Woolworths represented prior to the vote that clause 5.2 was applicable to preferred dress, that may legitimately be called in aid of a wide interpretation of the clause.[22]
[47] The second alleged misrepresentation concerned the gift cards. However, the evidence does not support the proposition that Woolworths expressly represented that gift cards were a benefit provided for in a provision of the 2018 Agreement; rather, as the Deputy President found (in paragraphs [151]-[152] of the Decision, set out above), they were represented to be benefits that eligible employees would receive if they approved the 2018 Agreement. It is not suggested by the RFFWUI that any eligible employee has not received the benefit of the gift card consistent with the representation made by Woolworths. Again, the RFFWUI's contentions in respect of this issue have an ersatz quality and are entirely lacking in substantive merit.
[48] For the reasons given, we order that permission to appeal is refused.
S. Kelly of counsel on behalf of the Retail and Fast Food Workers Union Incorporated
H. Dixon SC and A. Gotting of counsel on behalf of Woolworths Group Limited and Woolworths (South Australia) Pty Ltd
W. Friend QC and D. Bruno of counsel on behalf of the Shop, Distributive and Allied Employees Association
[3] The Deputy President's shorthand description of the RFFWUI
[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[11] See Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042, 242 IR 210 at [20]- [22]
[12] Transcript 19 March 2019, PNs 14-15
[13] See Nilsen (SA) Pty Ltd v CEPU [2016] FWCFB 3119 at [13]- [15] and the cases there cited.
[14] [2016] FWCFB 4969, 263 IR 255 at [53]- [54]
[15] [2018] FWCFB 6556, 282 IR 427 at [30]- [31]
[16] Aerocare Flight Support Pty Ltd v TWU [2017] FWCFB 5826, 270 IR 385 (affirmed on judicial review in Aerocare Flight Support Pty Ltd v TWU [2018] FCAFC 74, 261 FCR 175, 278 IR 211) at [26]
[18] See CFMEU v John Holland Pty Ltd [2015] FCAFC 16, 228 FCR 297, 247 IR 55 at [33]; MUA v Toll Energy Logistics Pty Ltd [2015] FWCFB 7272, 254 IR 353 at [65]; Re OneSteel Recycling Pty Limited [2014] FWCFB 7560, 246 IR 1 at [26]- [27]
[19] Re OneSteel Recycling Pty Limited [2014] FWCFB 7560, 246 IR 1 at [26]- [27]
[20] See CFMEU v John Holland Pty Ltd [2015] FCAFC 16, 228 FCR 297, 247 IR 55 at [33]
[22] See AMWU v Berri Pty Ltd [2017] FWCFB 3005, 268 IR 285 at [114(13)]
Printed by authority of the Commonwealth Government Printer
Retail and Fast Food Workers Union Incorporated
Woolworths Group Limited; Woolworths