Australasian Meat Industry Employees Union (WA Branch) v Woolworths Limited [2007] FCA 389

FEDERAL COURT OF AUSTRALIA

Australasian Meat Industry Employees Union (WA Branch) v Woolworths Limited [2007] FCA 389 INDUSTRIAL LAW – certified agreement – provision for negotiations to renew agreement to commence two months prior to nominal expiration of agreement – whether respondent breached clause – effect of statutory provisions on date of cessation of operation of certified agreement – effect of delivery of notice to invoke statutory bargaining procedure Acts Interpretation Act 1901 (Cth) ss 15AA, 46 Workplace Relations Act 1996 (Cth) ss 27, 170LJ, 170LX(1), 170LX(2), 170MI, 170MO, 170MV, 178, 178(1), 347 Australian Industrial Relation Commission Rules 1998 (Cth) r 58 Asahi Diamond Industrial Australia Pty Ltd v Automotive, Food, Metals and Engineering Union (1995) 59 IR 385 Community and Public Sector Union v Australian Prudential Regulation Authority (1999) 95 IR 324 Kenross Contractors Pty Ltd v Warren (2005) 147 IR 390 AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION (WA BRANCH) v WOOLWORTHS LIMITED WAD 38 OF 2006

NICHOLSON J

21 MARCH 2007

PERTH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 38 OF 2006

BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION (WA BRANCH)

Applicant

AND: WOOLWORTHS LIMITED

Respondent

JUDGE: NICHOLSON J DATE OF ORDER: 21 MARCH 2007

WHERE MADE: PERTH

THE COURT ORDERS THAT:

The amended application filed on 28 March 2006 be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 38 OF 2006

BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION (WA BRANCH)

Applicant

AND: WOOLWORTHS LIMITED

Respondent

JUDGE: NICHOLSON J

DATE: 21 MARCH 2007

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application made by the applicant in reliance on s 178 of the Workplace Relations Act 1996 (Cth) (the Act). The applicant alleges that the conduct of the respondent in failing to negotiate a replacement certified agreement between the parties contravenes Pt VIII Div 1 of the Act by breaching the Woolworths Limited Western Australian Supermarkets and the Australasian Meat Industry Employees' Union Agreement 2002(the 2002 Agreement). 2 The applicant pleads and, subject to an exception, the respondent admits that the registered rules of the applicant at cl 4 allow membership of the applicant to those persons who are employed in any position in or in connection with, or who are usually employed in, or who are qualified and desire to be amongst other things the Butchering and Meat Industry or in any kindred industry handling meat products. The exception is that the Shop Distributive and Allied Employees' Association (the SDA) is an organisation of employees registered pursuant to s 27 of Sch 1B of the Act and is capable of enrolling as members the majority of the employees of the respondent who are employed in its supermarkets, including those employees who are engaged in the handling and preparation of meat products. 3 It is common ground that during 2002 and 2003 the applicant negotiated the 2002 Agreement with the respondent trading as Woolworths Limited Western Australian Supermarkets in accordance with the provisions of the Act. This Agreement was subsequently certified by the Australian Industrial Relations Commission (the Commission) pursuant to s 170LJ in Div 2 of Pt VIB of the Act and came into operation on the day of certification, being 19 November 2003. The 2002 Agreement was binding on the applicant, its officers and members and the respondent (the parties). 4 Clause 1.3 of the 2002 Agreement reads as follows: '1.3 DURATION AND RENEWAL 1.3.1 This agreement shall come into operation from the date of ratification and shall continue in force until 15 December 2005. 1.3.2 The parties to this agreement agree that negotiations to renew this Agreement will commence two months prior to its expiration. 1.3.3 Should negotiations not achieve agreement, the wages and conditions of employment shall continue as at the date of expiration.' The respondent admits this clause, save that it states the expiry date was nominal. 5 The heart of the applicant's claim against the respondent is that it alleges the respondent breached the terms of cl 1.3.2 of the 2002 Agreement in not entering into negotiations to renew the agreement, a breach of an agreement being contrary to s 178(1) of the Act. As a consequence the applicant also claims the respondent breached cl 1.3.3 of that agreement in not maintaining the wages and conditions contained within the 2002 Agreement, again contrary to s 178 of the Act. 6 The applicant relies on an affidavit of Mr Da Silva, Vice President of the applicant, sworn on 5 July 2006 and on Ms Atkinson's affidavit tendered by the respondent. The respondent relies on the affidavits of Ms Atkinson, Regional Human Resources Manager of the respondent, sworn on 30 August 2006; of Ms Tatasciore, a solicitor employed by the respondent's solicitors, sworn on 29 August 2006; and on a copy of a circular to members of the applicant sent in early February 2006.