The Fair Work Commission handed down its much anticipated decision in the Big W Safety Matting Case on Thursday 1 September 2022.
The case involved Big W, a part of Woolworths Group, stripping safety matting out from the Assisted Check Out and Door Greeter areas. While the case focused on the Noosa store, the outcome has relevance in all workplaces which require workers to stand while working. This case also specifically looked at claims by Senior Management that workers were required to never stop moving in a ludicrous circuit of movement even when there were no customers and other tasks had been completed.
We recommend all workers download and read the full judgement. Links are below. It describes how determined members backed by a fighting union can take on big business and win. Key findings included:
[268] When an impact such as the removal of the anti-fatigue mat, which had been present for over 15 years in the area, is felt by employees, naturally they would want to tell their own story. They would want management to understand why, for some employees, it is an important piece of safety equipment and the effect the removal of it has on them. Some employees, it seems, have left the fight to Ms Hart and Ms Rafiqi. It is not surprising; not everybody has the will or gumption to fight a large employer over a determination that has been made without any regard for their circumstances.
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[273] We also know the mats were still present within ACOs and Door Greeter positions throughout many stores across the country right up until 5 April 2022. On the first day of the hearing, on 4 April 2022, I expressed this very concern to the parties. Quite surprisingly, and in news that shocked me, the Respondent went about ripping the mats up from the floor of those stores on 5 April 2022, because clearly there was no consistency in its position. This was information known to it from February 2022 when Ms Rafiqi’s witness statement was filed. It beggars belief that the matter before the Commission in this application involved arguments of failure to consult with employees over removal of matting, and overnight in various stores, matting was removed.
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[286] Given that my answer to Question 1 is yes, the Respondent was obligated to consult with the team members concerned, prior to the proposed changes being implemented. Further, the Respondent was required to consult with the Health and Safety representatives, the Store Safety Committee and the SDA. The consultation, if it had occurred, would have assisted the parties to identify and resolve potential health and safety problems.
[287] The outcome of the consultation is unknown. Respectfully, the Respondent’s submission that having regard to the time that has passed since the removal of the mats renders any consultation of no utility is misguided and disrespectful to the individuals affected. It does not align to the Respondent’s statement within the Agreement where Big W encourages a workplace culture where people are treated with respect. What it does correlate to is senior managers coming to the store and making directions where part of the reasoning offered has no factual basis (the supposed trip hazard) and where the corporate directive had been jumped by several months. The facts are clear; consultation was meant to occur from late August 2021, prior to the removal of the mats. Regretfully, it did not occur at the Noosa store because the actions were taken in early June 2021.
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[288] No, the Respondent did not consult (as required by the Agreement) affected employees, namely Ms Hart. It was required to, and it did not. It took the matting away without consultation and provided reasons for its decision after the matting was removed. Per the Full Bench decision in Mt Arthur Coal, management does not hold a monopoly of knowledge and understanding of how a business operates. Employees are entitled, in consultation, to point out aspects of a proposal that will produce negative consequences and suggest ways to eliminate or alleviate those consequences.
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[291] The Respondent is not maintaining healthy and safe working conditions for some of its affected employees. Not all employees require the benefit of the anti-fatigue matting in the ACO area or Door Greeter area. The age and weight and particular medical conditions of an employee will have a determination as to whether the removal of anti-fatigue matting makes their workplace less healthy and less safe.
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[293] I consider it to be unjust and unreasonable for the Respondent to have removed the antifatigue matting from the ACO area and Door Greeter area at the Noosa store without consultation with affected employees and without a safety analysis being undertaken in relation to the potential trip hazard of the mats. In the absence of evidence of the mats being an actual trip hazard, the mats should be assumed, unless proven otherwise, not to be a trip hazard on account of their use for decades without incident.
The case was brought by RAFFWU representing key members including our Noosa Big W Delegate, Laura Rafiqi. Her staunch support, representation and advocacy for her co-workers has been beyond reproach and an example of the outstanding outcomes achievable when great delegates are backed by fighting unions.
You can download the full decision on the FWC website here: https://asset.fwc.gov.au/documents/decisionssigned/html/2022fwc1622.htm
Or download a PDF directly here: [2022] FWC 1622 – Big W Noosa Safety Matting