The Australasian Meat Industry Employees Union v Woolworths Limited - re Summary: scope order application to excise meat unit employees from proposed national enterprise agreement - meaning of "relevant" bargaining representative - conduct prior to 1 July 2009 and transitional provisions - whether employers required to disclose bargaining representatives identity - good faith bargaining where multiple bargaining representatives - whether composite bargaining required - statutory requirement under s.228(1)(f) cannot be waived [2009] FWA 849

(#P42_3746) Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 99

(#P43_3996) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 7

(#P46_4368) Letter from Mr Brian Crawford to Mr Gerald Carr dated 8 September 2009 as exhibited to the Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC - 13

(#P49_4846) Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 58-70. And for impact in South Australia refer to the Affidavit of Mr Graham Smith sworn 30 September 2009 at PN 6-11, 21 and 24.

(#P52_5322) Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 60-67 and Affidavit of Mr Graham Bird sworn 1 October 2009 at PN 23-28

(#P55_5578) Affidavit of Mr Graham Bird sworn 1 October 2009 at PN 4-9 and Affidavit of Mr Graham Smith sworn 30 September 2009 at PN 3-4. See also the evidence of the SDA through Ms Burnely, the National Industrial Officer given at the hearing on 23 October 2009 at PN 818 to 826 of the Transcript of Proceedings

(#P58_6017) See Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at Exhibit BPC 7

(#P65_6986) Affidavit of Mr Graham Bird sworn 1 October 2009 at PN 19 and 21

(#P68_7224) Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 70

(#P71_7566) Woolworths gave evidence that the notice was issued to store managers on 13 July 2009 and posted without exception on 14 July 2009 as stated in the Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 89-94 and Exhibit GC-7

(#P72_8009) See Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at Exhibit BPC 8

(#P75_8210) Transcript of Proceedings of the hearing on 23 October 2009 at PN1365-1368

(#P76_8374) Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 79

(#P79_8860) Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 88-90

(#P82_9248) Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 82-86

(#P87_9578) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-13

(#P102_12107) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-13

(#P109_12916) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 37

(#P112_13459) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 11-20, 26

(#P113_13692) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 27

(#P116_13948) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 33

(#P119_14360) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 34-36

(#P124_14742) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 39

(#P127_15237) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 40 and Exhibit GC-1

(#P128_15421) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 41

(#P131_15783) Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 11 and the Transcript of Proceedings of the hearing on 22 October 2009 at PN 158 and 159 and qualified at PN 278

(#P134_16203) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 50-51

(#P137_16443) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 52, 56-57

(#P140_16797) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 58

(#P145_17389) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 64-67

(#P148_17717) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 68

(#P151_18322) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 70-72 and Exhibit GC-3

(#P154_18630) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-3

(#P203_22802) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 77-79, 82-83

(#P210_23167) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 80, 84 and 100

(#P216_23968) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 98-99 and the Transcript of Proceedings on 23 October 2009 at PN1363 to 1370

(#P219_24186) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 97

(#P220_24387) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 102 and 104

(#P223_24847) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 109

(#P226_25293) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 109 and 110

(#P229_25575) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 112

(#P232_25879) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 114

(#P237_26269) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-14

(#P271_29425) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-15

(#P274_29703) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-20

(#P275_29980) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 131-140

(#P276_30098) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 139

(#P277_30520) See Exhibit Woolworths 3

(#P288_31270) Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at PN 147-148

(#P293_31971) Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 12-17

(#P396_38193) Transcript of Proceedings of 23 October 2009 at 1131 to 1135

(#P445_41932) Written submissions of the AMIEU dated 2 October 2009 at page 1

(#P446_42074) Letter from Mr Brian Crawford to Mr Gerald Carr dated 8 September 2009 as exhibited to the Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC - 13, in which the AMIEU gave Woolworths Ltd 7 days in which to reply to its concerns

(#P451_42686) Written submissions of the AMIEU dated 2 October 2009 at page 1

(#P510_49286) See the requirement of s.176(3) of the FW Act

(#P529_52387) Affidavit of Mr Brian Patrick Crawford sworn 28 September 2009 at PN 18, 59 and 69

(#P530_52797) Affidavit of Mr Graham Bird sworn 1 October 2009 at PN 4-9

(#P547_54622) Explanatory Memorandum to the Fair Work Bill 2009 at Item 983

(#P634_66120) Transcript of Proceedings on 23 October 2009 at PN 1346- 1370 and PN45 of this decision

(#P637_67134) See Exhibit Woolworths 3

(#P656_69818) Australian Municipal, Administrative, Clerical and Services Union v Queensland Tertiary Admissions Centre Ltd [2009] FWA 53 (29 July 2009)

(#P663_70891) See Exhibit "Woolworths 3" handed up during the proceedings on 23 October 2009 "Chronology of WOW Negotiations with AMIEU" prepared by Mr Carr

(#P672_72311) I should add that the complexity of reciprocity in bargaining may be compounded by the inclusion of bargaining representatives who are neither bargaining representatives under s.176)1)(a) or s.176(1)(b) of the FW Act but nominated as bargaining representatives by reason of written instrument made under s.176(c) of the FW Act (including for the purpose of s.176(4) of the FW Act). This general matter was raised obliquely by the AMIEU at the hearing (see Transcript PNS 1321-1330) and warrants some passing comment.

At s.176 of the FW Act, arguably in accord with the principles of freedom of association, bargaining representative status is extended to bargaining representatives who are employers and who are employee associations who have members who will be covered by a proposed agreement along with bargaining representatives who are nominated in writing. In a workplace environment in which there are multiple bargaining representatives (whose status as such is derived from different sources of authority and who have different representational tasks, in terms of the scope of their bargaining agenda and the range and type of employees they represent, may arise questions as to what obligations fall upon an employer (and the employee organisation bargaining representatives) in respect of such nominated bargaining representatives (who may be individual, self-nominated bargaining representatives or nominees of enclaves of employees within a wider workforce). Could bargaining orders under s.229 be made in circumstances where such bargaining representatives are not accorded by the employer the full entitlements, say, of an employee organisation bargaining representative (such as access to communications equipment and travel and paid days off)? Would an employee organisation who has such rights stipulated in an agreement happily have those rights extended to other bargaining representatives whose status is derived from written nomination only? Mirror issues, of course, may arise where an employee organisation is only a bargaining representative for a minority of employees but enjoys access to resources that a nominated bargaining representative (such as a broadly representative non-union consultative committee or otherwise) does not.

Further, do resource differences generally between bargaining representatives impact upon the bargaining process and give rise to good faith bargaining issues under s.228 of the FW Act? A case in point potentially arises in this matter where it is evident that the national employer (Woolworths) obliged all bargaining representatives to meet their own costs (including travel and time off) and to convene in Sydney on a particular day. (see Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-4) Nominated bargaining representatives may not be able to meet such bargaining demands and may be marginalised in the bargaining process as a result. It was not an issue, I should add, to which Woolworths, by its own admission had applied itself, and in any event the AMIEU did not press it with any vigour.

The answer to such questions may reside in the extent to which the employer is able to engage the nominated bargaining (relative to the scale of their representative status and bargaining agenda) on terms that accord with the good faith bargaining requirements and which do not risk marginalising un-resourced nominated bargaining representatives.

Arguably a more complex question arises, however, as to the nature of the reciprocal relations between employer and employee organisation bargaining representatives and (self) nominated individual and enclave-based bargaining representatives in the bargaining process. As discussed above, all such bargaining representatives must bargain with one another in terms consistent with s.228 of the FW Act, regardless of the scale of their bargaining agenda and representative role.

In the current case, an employee organisation with membership representing approximately 1.0% of the total non-salaried workforce in Woolworths' supermarkets nationally has made demands in relation to good faith bargaining and sought scope orders which have impacted significantly upon the bargaining process.

Issues as to the impact of bargaining representatives on the bargaining process may be dealt with by way orders made under s.229 of the FW Act, having particular regard to the availability of orders of the kind provided for at s.231(2)(d) and s.231(3)(a)(ii) of the FW Act. But it will not always be immediately apparent that a balance can be readily struck between the giving effect to reasonably based representational interests and the efficacy of the bargaining process itself. Equally so, however, the extent to which such issues might arise might depend upon the extent to which the representational forces in any given workplace are centrifugal or centripetal.

(#P713_83820) See Exhibit Woolworths 3

(#P736_86381) Transcript of Proceedings of the hearing on 22 October 2009 at PN 665 - 670

(#P739_86590) Transcript of Proceedings of the hearing on 22 October 2009 at PN 665 - 668

(#P742_86767) Transcript of Proceedings of the hearing on 23 October 2009 at PN 818-819

(#P749_87822) See for example clause 1.2.1(d) of the proposed national agreement as contained in the Affidavit of Mr Gerald Michael Carr sworn 9 October 2009 at Exhibit GC-10

(#P760_89798) Transcript of Proceedings of the hearing on 22 October 2009 at PN 671

(#P798_94845) See Appeal by Liquor, Hospitality and Miscellaneous Union against decision of O'Callaghan SDP of 19 August 2009 [ [2009] FWA 101] - Re: Coca-Cola Amatil (Aust) P/L [2009] FWAFB 668 (28 October 2009)

(#P809_96221) AMIEU Submissions in respect of the Modern Retail Industry Award dated 1 August 2008

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