The Fair Work Commission has again found Woolworths failed to meet the Good Faith Bargaining Requirements when refusing to provide documents exchanged in secret negotiations with SDA. The FWC ordered Woolworths to hand over the secret clauses SDA provided the company as part of negotiating their deal.

[2024] FWC 1242 – GFBO RAFFWU v WW & SDA (Decision)

[2024] FWC 1242 – GFBO RAFFWU v WW & SDA (Order)

Extracted:

[114] Woolworths claims that the log of claims from the SDA and the AWU and the SDA draft clauses are confidential on the basis the SDA and the AWU communicated them in confidence. A document in the context of bargaining is not confidential simply because a party or certain parties say that it is confidential. As noted by the Full Bench in Endeavour Coal Pty Ltd v APESMA (Endeavour Coal), what is confidential or commercially sensitive will involve a decision on a question of fact in each case where that quality is asserted.

[115] The extent of Woolworths’ evidence on this point is that the log of claims and SDA draft clauses are confidential because the SDA says they are. The SDA made submissions that how they approach their claims is confidential as it is tied to their industrial strategy. Further, that confidentiality is required as the SDA must manage the expectations of a huge number of members and negotiate in order to achieve the best outcome for them. The SDA says it would hinder bargaining if the SDA had to limit its communications to Woolworths because anything said to Woolworths would be passed onto other bargaining representatives. However, the SDA did not lead any evidence to this effect, and so these submissions lack weight.

[116] Though each case will turn on its own facts, I agree with Commissioner Roe’s findings in NUW v Linfox at [37] where he stated:

“…Regard has to be had for the nature of the document including its purpose and its content.
The purpose of an initial log of claims is to set out the objective sought by a party in bargaining.
By its very nature this is a document which must be available to the bargaining parties otherwise
it cannot be properly used for its purpose which is to facilitate collective bargaining. It may be
reasonable to put some conditions on the distribution or publication of the document or parts of
it but it is not reasonable to impose a restriction which prevents other bargaining representatives
from being aware of the essential nature of the claims being made and the response to them.”

[117] Having perused the SDA and AWU log of claims in this matter, there is nothing in there to persuade me that the log of claims contains confidential information. This is supported by the fact the log of claims was made publicly available on the SDA website by 19 December 2023 at the latest.

[118] I similarly find that the draft clauses provided by the SDA thus far in bargaining do not contain confidential information.

[119] Though it was not raised by Woolworths, the Woolworths Business Update contains the words “Privileged & Confidential” on the cover page. To the extent that it discloses any commercially sensitive information, I find that it was material that was appropriate to share with bargaining representatives other than the SDA and the AWU.

Was the information disclosed in a timely manner?

[120] I find that all of the information outlined in the table in [103], except for the Updated Consolidated Bargaining Summary, was not disclosed in a timely manner. I am satisfied that the information has now been disclosed, but that is a matter for consideration of whether any order is appropriate.

[121] I find that Woolworths has breached the obligation in s 228(1)(b).