TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Woolworths (Victoria) Pty Limited
(T10261 of 2002)

and

The Australasian Meat Industry Employees Union, Tasmanian Branch

Shop, Distributive and Allied Employees Association, Tasmanian Branch

National Union of Workers, Tasmanian Branch

Australian Municipal, Administrative, Clerical and Services Union

Australian Liquor, Hospitality and Miscellaneous Workers Union
- Tasmanian Branch

Industrial dispute - mode, terms and conditions of employment - Order issued - matter settled - file closed

REASONS FOR DECISION

[1] On 21 June 2002, Woolworths (Victoria) Pty Limited (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with The Australasian Meat Industry Employees Union, Tasmanian Branch, the Shop, Distributive and Allied Employees Association, Tasmanian Branch, the National Union of Workers, Tasmanian Branch, the Australian Municipal, Administrative, Clerical and Services Union and the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the unions) relating to the mode, terms and conditions of employment.

[2] The matter was listed for hearing at `Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania on Friday, 28 June 2002 at 10.30 am.

[3] The purpose of the application was stated as follows:

• 1. The Applicant is a subsidiary of Woolworths Limited, and forms part of the Woolworths group of companies.

  2. The Woolworths group of companies is seeking to restructure its operations such that all employees currently employed by a range of subsidiaries, including the Applicant, will become employed by Woolworths Limited with effect from 1 July 2002.

  3. Woolworths Limited has offered employment to each employee currently employed by the Applicant. The offer of employment is on the same terms and conditions, and on a continuous service basis.

  4. Woolworths Limited concedes that it will become a successor to the business of the Applicant and a "new employer" for the purposes of section 47A of the Industrial Relations Act 1984 (Tas).

  5. Acceptance of employment with Woolworths Limited will, if anything, improve the position of the employees, in that they will become employed by a major public company with an even more significant asset backing than the Applicant.

  6. In the circumstances, the Applicant contends that it would be unreasonable and unfair to require it to make redundancy or severance payments to any employee who has been offered employment on a continuous service basis with Woolworths Limited (whether that employee accepts or declines the offer of employment with Woolworths Limited).

  7. The Applicant does not concede that it is under any obligation to make severance or redundancy payments to any employees. However, for the avoidance of doubt, the Applicant seeks an order that it is exempted from any requirement which may otherwise exist to make a redundancy or severance payment to any employee covered by any of the awards and/or agreements referred to in paragraph 8 of this application, where that employee has been offered employment on a continuous service basis with Woolworths Limited on the same terms and conditions as currently enjoyed with the Applicant.

  8. The Applicant currently engages employees in Tasmania under the terms of a number of State and Federal industrial instruments. The relevant industrial instruments made or approved by the Tasmanian Industrial Commission are as follows:

• Woolworths (Victoria) Pty Ltd Distribution Centre-National Union of Workers Enterprise Agreement 2000-2002

• Woolworths Tasmanian Retail Operations Enterprise Agreement 2001-2003

• Devenport (sic) Produce Warehouse Enterprise Agreement 2001/2004

• Woolworths Tasmanian Meat Rooms Enterprise Agreement 2001-2004

• The Hotels, Resorts, Hospitality and Motels Award

• The Clerical & Administrative Employees (Private Sector) Award

• The Baking Industry Award

  9. The applicant considers that a dispute in relation to an industrial matter is likely to arise if orders are not made in this matter.

[4] Mr SM Jauncey, of Henry Davis York, Lawyers, who sought and was granted leave to represent Woolworths (Victoria) Pty Limited (the applicant) and Woolworths Limited, presented detailed submissions relating to:

(a) the restructure of the Woolworths group of companies;

(b) the purpose and benefits of the restructure; and

(c) how the proposed corporate restructure is to be achieved.

[5] Mr Jauncey emphasised that in the restructure, employees of Woolworths (Victoria) Pty Limited had be offered employment on a continuous service basis with Woolworths Limited and on the same terms and conditions as those applying at the date of this hearing.

[6] Mr Jauncey also placed on record an undertaking by Woolworths Limited, that it would recognise service accrued with Woolworths (Victoria) Pty Limited as service with Woolworths Limited.

[7] In addition, he submitted that Woolworths Limited would honour all accrued employee entitlements that have accrued with the relevant subsidiaries as at midnight 30 June 2002, and

(a) accepts that it will become bound by all relevant industrial awards and agreements binding the relevant subsidiaries; and

(b) there was no intention to change any terms and conditions for employees of the applicant as part of the restructure.

[8] Mr Jauncey tendered a draft Order which, simply stated, sought an exemption for Woolworths (Victoria) Pty Limited from making any redundancy or severance payments to any employee who has been offered employment on a continuous service basis with Woolworths Limited.

[9] Mr Griffin, for Shop, Distributive and Allied Employees Association, Tasmanian Branch, the Australian Municipal, Administrative, Clerical and Services Union and the National Union of Workers, Tasmanian Branch, and Mr G Courtney, for The Australasian Meat Industry Employees Union, Tasmanian Branch, supported the submissions of the applicant and the request that the Commission issue an Order in the form outlined in the draft tendered by Mr Jauncey.

[10] I adopt the decision of the Full Bench of the Australian Industrial Relations Commission in Stepps v ALHMWU1 wherein it stated:

"In normal circumstances if the Commission is satisfied that credits based on length of service have been transferred to the transmittee or the acquirer of a business, it would be inappropriate to require that employees who transfer their employment from the vendor to the purchaser should also receive severance payments."

[11] Having considered the detailed submissions of the applicant, I am satisfied that employees of Woolworths (Victoria) Pty Limited have been offered acceptable alternative employment with Woolworths Limited from 1 July 2002, without any loss of entitlements whatsoever.

[12] For that reason I am prepared to issue the following Order.

ORDER

I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984 (the Act), that Woolworths (Victoria) Pty Limited is not required to make any redundancy or severance payment to any employee subject to this Order whose employment may come to an end in circumstances where he or she had been offered employment with Woolworths Limited on the same terms and conditions, and on a continuous service basis.

This Order applies in respect of any employee whose terms and conditions of employment are governed by any award made, or industrial or enterprise agreement approved, by the Tasmanian Industrial Commission, including employees whose terms and conditions of employment are governed by the following awards and agreements:

• Woolworths (Victoria) Pty Ltd Distribution Centre-National Union of Workers Enterprise Agreement 2000-2002;

• Woolworths Tasmanian Retail Operations Enterprise Agreement 2001-2003;

• Devonport Produce Warehouse Enterprise Agreement 2001/2004;

• Woolworths Tasmanian Meat Rooms Enterprise Agreement 2001-2004;

• The Hotels, Resorts, Hospitality and Motels Award;

• The Clerical and Administrative Employees (Private Sector) Award;

• The Baking Industry Award;

This Order will have no application to any subsequent decision by Woolworths Limited to terminate the employment of any employee by reason of redundancy.

This Order shall come into operation from 28 June 2002 and shall remain in force for a period of six months.

R J Watling
DEPUTY PRESIDENT

Appearances:
Mr SM Jauncey of Henry Davis York, Lawyers, for Woolworths (Victoria) Pty Limited and Woolworths Limited
Mr P Griffin for the Shop, Distributive and Allied Employees Association, Tasmanian Branch; the Australian Municipal, Administrative, Clerical and Services Union; and the National Union of Workers, Tasmanian Branch
Mr G Courtney for The Australasian Meat Industry Employees Union, Tasmanian Branch

Date and place of hearing:
2002
June 28
Hobart

1 Steppes Pty Ltd t/a The Beaufort Darwin v Australian Liquor, Hospitality and Miscellaneous Workers Union, IR 86 at 337 - Giudice J (President), Polites SDP, Bacon C - 22 September 1998