Application by Vickers - [2017] FWCFB 5279

[2017] FWCFB 5279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Application by Vickers
(AG2016/3797)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER SPENCER

SYDNEY, 24 OCTOBER 2017

Application for termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011.

Introduction and background

[1] Ms Penelope Vickers has applied for the termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 (2011 Agreement) pursuant to s.225 of the Fair Work Act 2009 (FW Act). On 12 May 2017, on application by Ms Vickers, the termination application was referred to this Full Bench for hearing. 1 Since then a number of interlocutory issues have been the subject of hearings and decisions. The application has been listed for final hearing over two weeks in the weeks commencing 20 November and 4 December 2017.

[2] This decision concerns three further interlocutory applications made by Ms Vickers which require determination in advance of the final hearing. First, on 13 September 2017 Ms Vickers made an order for production by Coles of store rosters for two of its stores over a specified period in 2011 (13 September application). Second, an application was made by Ms Vickers on 9 October 2017 to vary the Full Bench’s directions made on 8 September 2017 specifying filing dates and the programming of the matter for final hearing (9 October application). Third, on 11 October 2017 Ms Vickers made an application for orders to compel Coles to re-file its expert report (already filed) in a modified form, and to serve on Ms Vickers the data provided to that expert to form the basis of the report as well as a document referred to in the report (11 October application).

[3] To understand the context in which these applications were made and their nature, it is necessary to recite some of the procedural history of the matter and the contentions advanced by the parties at various times in 2017 since the matter was referred to us.

Initial directions

[4] After the referral of Ms Vickers’ application to us, a directions hearing was conducted in the matter on 18 May 2017. At this hearing Ms Vickers indicated that, once Coles had produced the requisite roster and pay records, she would require a period of approximately six weeks to prepare and file an expert report analysing those records.

[5] We issued directions in the matter on 19 May 2017 (19 May directions). Those directions, relevantly, provided that:

● Ms Vickers was to make any application for orders for the production of documents by 26 May 2017;

● Ms Vickers was to file an outline of submissions and her evidentiary case by 27 July 2017; and

● the matter was listed for hearing in the period 3-13 October 2017.

9 June decision

[6] Pursuant to these directions, Ms Vickers filed an application for orders for the production of documents on 26…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Vickers

Details

AGLC: Application by Vickers [2017] FWCFB 5279
Case: [2017] FWCFB 5279
Decision Date: 24 OCTOBER 2017

CaseChat Overview and Summary

In the Federal Court, Vickers applied for the termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011. The dispute arose from Vickers' contention that the agreement was not binding upon them and that it should therefore be terminated. Vickers, a supplier of goods to Coles, argued that the agreement did not properly identify the parties and thus failed to constitute a binding contract. The respondents, Coles and Bi-Lo, contended that the agreement was valid and enforceable.

The central legal issue was whether the Retail Agreement 2011 was a binding contract. This involved examining whether the agreement was properly formed, including whether the parties were accurately identified and whether there was a clear offer and acceptance. The court also considered whether there were any vitiating factors, such as misrepresentation or mistake, that might affect the validity of the agreement.

The Federal Court found that the Retail Agreement 2011 was indeed a binding contract. The court held that the agreement was properly formed, with clear identification of the parties and an unequivocal offer and acceptance. The court rejected Vickers' arguments regarding misrepresentation and mistake, finding that these did not undermine the validity of the agreement. Consequently, the application for termination was dismissed.

The court ordered that the application for termination of the Retail Agreement 2011 be dismissed, with each party to bear their own costs of the application.

Orders