Woolworths accuses its own workers of holding ‘metaphorical gun’ at the company in fiery hearing
Woolworths says picket lines disrupting supplies to its supermarkets are a “metaphorical gun” aimed at the company by its own workers.
The retail giant has made fiery submissions during a Fair Work Commission hearing into an ongoing strike centred in Victoria, which has led to empty shelves around the nation and what it says is at least $50 million in lost sales.
The strike by members of the United Workers Union is a legally protected action, meaning workers can’t be sacked for taking part in it. (They are not paid while they are not working).
Woolworths is applying to the commission for a bargaining order to move along picket lines outside distribution hubs at the centre of the strike.
The supermarket’s legal counsel Marc Felman KC has called these picket lines “obstructive” and “capricious or unfair” and described them as a “metaphorical gun”, that is having the effect of not allowing workers who may want to continue working to enter the site.
“It is an obvious pressure point for Woolworths, who are struggling.”
Negotiations between the UWU and the supermarket are continuing as the strike enters its third week.
The UWU will respond in the hearing to the submissions.
‘Novel’ legal argument by Woolworths
Labour law professor Shae McCrystal is surprised, saying Woolworths is in uncharted territory with a novel argument it is trying to get the commissioner to accept.
Essentially, Woolworths is arguing that the union is undermining its own attempts to bargain with the company because it is promoting a picket line.
“The underlying strike action, not going to work, is a legally protected action,” Professor McCrystal said.
“The picket itself is not, it doesn’t fall into the definition of an industrial action in the Fair Work Act (laws that govern work and disputes).
“So it’s neither protected or unprotected.”
Normally, companies that are being hindered by picket lines — protests outside sites — ask the courts for an injunction. Sometimes, they will use arguments about, for example, interrupting traffic or access.
But there’s one big problem with that.
“There’s nothing inherently unlawful about standing on public land.”
The Fair Work Commission is not a court, and that is not what Woolworths is doing.
Instead, it is seeking to establish that the union is breaching “good faith bargaining” — the process by which parties negotiate with the best of intentions to reach an agreement — and it is doing it through actions that have long been practised as part of collective bargaining and union activity.
“Woolies’s argument is a novel use of bargaining provisions, we’ve not seen them used like this before,” Shae McCrystal explained, adding, “and I’m not entirely sure what Commissioner Boyce will do with it.”
“What they’ve got to try and do is argue the picket is undermining collective bargaining … that the actions of unionists in asserting their claims undermines the bargaining process — that’s quite a novel argument.”
Even if Woolworths is successful, it’s unclear how it would end the dispute.
“If he accepts the argument, he can only make an order against bargaining officials — the union, that is — not the workers,” Professor McCrystal.
This could lead to a situation where the union is forced to tell workers not to picket the company but would have no impact if the workers just decided to continue picketing anyway.
Farmers caught in the ‘crossfire’
The strike action has so far avoided fresh produce distribution, but Victorian Farmers Federation president Emma Germano said some farmers have been caught in the crossfire as demand drops from Woolworths, as consumers shop elsewhere due to shortages created by the strike.
“If you’re a shopper and you go into Woolworths and there’s nothing there other than fresh produce, the next time that you go shopping, you don’t go to Woolworths,” Ms Germano said.
“And Woolworths are having to cancel orders to farmers, or massively cut down orders to farmers.
“I spoke to two growers this morning, [and] they’ve been impacted by a number of other problems this year, and now this on top of it.”
She said affected supermarket suppliers have few options to offload the perishable produce, such as sending it to central markets, because supermarkets have different packaging.
Ms Germano said the government should step in at this point.
“When it impacts fresh fruit and vegetables, fresh produce, essential items, it shouldn’t be allowed,” she argued.
“And we need to see the government step up and change some of the rules here, because anything that impacts essential items for families shouldn’t be allowed.”
No other major supermarkets are affected by the industrial action at the Woolworths distribution centres, meaning consumers can buy goods elsewhere if they are unavailable at Woolworths.
Woolworths has been contacted for comment.
