Application by Vickers
[2017] FWCFB 5279
•24 OCTOBER 2017
| [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
(AG2016/3797)
VICE PRESIDENT HATCHER | 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 May 2017. This included an order requiring the production of “financial reports, analysis, and advice produced or relied upon” with respect to the proposed 2011 Agreement prior to its submission for the Commission’s approval, documents relating to “the authorisation given to Mr Angelo Yoannidis to sign and file the Statutory Declaration ... declared by him on 14 July 2011” in relation to the application for approval of the 2011 Agreement, the documents and information provided to employees explaining the terms and effect of the 2011 Agreement “in satisfaction of sections 180(5) and 188 of the Fair Work Act 2009”, and other documents in relation to the decision to file the application for approval of the 2011 Agreement viewed or produced by or showing the recommendation of the “board of directors or any divisional board of directors or a steering committee, including the Audit and Risk Committee, within the Wesfarmers Group”.
[7] The issue of this order was opposed by Coles, and was dealt with along with a range of other interlocutory issues in a decision issued by us on 9 June 2017. 2 We determined as follows:
“We decline to make any orders for the production of documents relating to the approval process for the 2011 Agreement. Ms Vickers’ application for such documents to be produced appears to us to be a classic fishing expedition, in that the documents are sought merely for the purpose of exploring whether there is a basis to challenge the approval of the 2011 Agreement. To this point, Ms Vickers has not sought to advance a positive case that the 2011 Agreement should not have been approved or that its approval was obtained by misleading or deceptive conduct on the part of Coles.” 3
Ms Vickers’ first application for an extension of time
[8] On 26 July 2017, the day before she was due to file her evidentiary case pursuant to the 19 May directions, Ms Vickers applied for an extension of time to do so until 31 August 2017. This extension of time application was the subject of a directions hearing on 28 July 2017. At that hearing Ms Vickers gave an assurance that she would be able to file her case by 31 August 2017, subject to the timely provision by Coles of further documents which she had sought to be produced (noting that ultimately no further documents were produced by Coles).
[9] On 28 July 2017, after the directions hearing, we issued a decision concerning Ms Vickers’ application for an extension of time. 4 In that decision we said:
“[6] At the directions hearing, Ms Vickers accepted that the consequence of being granted the five week extension of time she sought was that hearing dates set in October 2017 would have to be vacated because the equivalent extension of time that would need to be granted to those parties opposing her application would mean that they would not be required to file their evidence and submissions until after the last of the listed hearing dates. No party challenged the reasons given by Ms Vickers for her non-compliance with the directions or opposed the grant of the extension sought by her, although Coles in particular emphasised its desire to have the matter heard and determined as quickly as possible.
[7] In the circumstances described we consider it appropriate to grant the extension of time sought by Ms Vickers. Regrettably, her inability to comply with the directions will have the result that the current hearing dates will have to be vacated and new hearing dates set. This will have the result that the determination of Ms Vickers’ application will be considerably delayed. However we consider that Ms Vickers, as a self-represented litigant, should be given the fullest opportunity to advance her case. Accordingly we vacate the directions made on 19 May 2017, and make the new directions contained in the Annexure to this statement.”
[10] The new directions relevantly required Ms Vickers to file her outline of submissions and evidentiary case by 31 August 2017. The new hearings dates were 6-10 November, 20-24 November and 4-8 December 2017.
Ms Vickers’ evidentiary case
[11] On 31 August 2017 Ms Vickers filed her outline of submissions, a list of documents, a draft expert’s report entitled “Analysis of Coles Wages Data: BOOT purposes” prepared by Dr Allen Truslove, an actuary and statistician, a further draft report by Dr Truslove entitled “Value of Choice of Superannuation Fund”, and a short witness statement made by an unidentified person. Ms Vickers indicated in covering correspondence that she intended to file and serve at an unspecified time in the future final versions of Dr Truslove’s reports, a report by an independent expert verifying Dr Truslove’s calculations, and a further anonymous witness statement.
[12] In her outline of submissions Ms Vickers contended, among other things, that the 2011 Agreement never passed the BOOT and was only approved due to “false information” supplied by Coles. In support of these propositions, Ms Vickers’ submissions included the following:
“32. In response to the email from the Commission dated 17 August 2011, Coles self selected ten employee rosters (five for employees starting ‘B’ and five for employees starting with ‘C’) covering a two week period. Coles selected the 10 rosters from two different stores. None of these employees were paid less than the Coles Award.
33. The Applicant will provide expert evidence as to:
a. the percentage of workers paid below the Coles Award on approval of the 2011 EBA;
b. the probability that Coles could have randomly selected ten workers not paid below the Coles Award.
34. The Applicant will also provide witness evidence as to the existence of employees who:
a. predominantly worked nights and weekends at the time of application for approval of the 2011 EBA;
b. were not told they may be paid less under the 2011 EBA than the Coles Award, or other information in satisfaction of section 180(5) of the FWA.”
[13] The email referred to in paragraph 32 of the above submission was one sent by the Associate to Vice President Watson to Coles in the course of his consideration as to whether the 2011 Agreement passed the better of overall test (BOOT) set out in s.193 of the FW Act and was thus capable of approval by Fair Work Australia (as the Commission was then known). The email, which was sent on 17 August 2011 (17 August 2011 request), requested the following information:
“For people covered by the Coles Supermarkets Australia Pty Ltd Retail Award 2002 a comparison of the total earnings over the last two week period, under the Award compared to under the proposed agreement for the first five people appearing on the roster with surnames beginning with the letter B and the first five people appearing on the roster with surnames beginning with the letter C, in order to demonstrate the impact of the more or less beneficial provisions set out in the application.”
[14] The “Coles Award” referred to in the submission was the Coles Supermarkets Australia Pty Ltd Retail Award 2002 (Coles Award), which was the primary reference instrument for the purpose of the application of the BOOT to the 2011 Agreement.
[15] The draft report of Dr Truslove entitled “Analysis of Coles Wages Data: BOOT purposes” among other things compared remuneration payable under the 2011 Agreement at the date of its approval to that payable under the Coles Award. Dr Truslove’s conclusion was that 63% of Coles’ employees would receive less under the 2011 Agreement than under the Coles Award. The report also compared remuneration under the final rates in the 2011 to remuneration under the General Retail Industry Award 2010 (Retail Award), and concluded that 71% of employees would be worse off under the 2011 Agreement.
Ms Vickers seeks a further extension of time
[16] On 7 September 2017, Coles sent correspondence to the Commission raising a number of complaints, including that Dr Truslove’s reports were filed only in draft form, the reports only stated bare conclusions and did not specify his qualifications, the assumptions that he used, or the process of reasoning or calculations used to arrive at his conclusions, and Ms Vickers had foreshadowed filing further evidence outside the Commission’s directions of 28 July 2017. As a result there was a further directions hearing on 8 September 2017, at which Ms Vickers ultimately applied for a further extension of time of eight weeks to file the remainder of her evidence and sought for the first time an opportunity to file a further expert’s report in reply to Coles’ expert evidence. She sought a period of ten weeks to allow for this to occur. In a decision issued later that day 5, we rejected that application for the following reasons:
“[11] It is apparent, and Ms Vickers accepted, that the grant of the extension of time which she sought would require the current hearing dates to be vacated and the matter relisted for further hearing at some time in 2018. Such a course was strenuously resisted by Coles, the SDA and the AWU, who were anxious to have the current hearing dates maintained.
[12] We do not propose to accede to Ms Vickers’ application for the following reasons:
(1) There has been no proper explanation for Ms Vickers’ failure to comply with the current directions. She was, as earlier explained, granted an extension of time to 31 August 2017, a date nominated by her. The excuse that Dr Truslove was delayed by other professional commitments is unacceptable. He has been present at the directions hearings before us to date, and this difficulty has never been raised before. The directions to date have been made in reliance upon indications by Ms Vickers and Dr Truslove as to the time they require to prepare their case.
(2) Ms Vickers’ application was filed on 5 July 2016. It has been repeatedly delayed, in large part because of numerous interlocutory applications made by Ms Vickers which have generally not served to progress the matter.
(3) The application is of public importance, because it concerns the pay rates and conditions applicable to a major Australian corporation and its approximately 75,000 employees.
(4) Ms Vickers’ seeks termination of the 2011 Agreement retrospective to the date of its approval in 2011. If her contention that a significant proportion of Coles’ employees are paid less under the 2011 Agreement than under the relevant modern award (a matter yet to be established in these proceedings) is correct, that may create a contingent back payment liability on the part of Coles which will continue to grow as a result of the delays occasioned by Ms Vickers’ default in complying with the directions.
(5) Coles has initiated bargaining for a new agreement, and the uncertainty surrounding its current industrial position occasioned by Ms Vickers’ application may impede the orderly and expeditious conduct of the bargaining.”
[17] However we determined to make new directions (8 September directions) allowing Ms Vickers until 19 September 2017 to file the expert reports of Dr Truslove in final form, and until 5 October 2017 to file her further “confidential” witness statement. In that respect we said:
“[14] Accordingly we make the attached directions. Those directions make it clear that there will be no further opportunity afforded to Ms Vickers beyond the dates specified to prepare her case. Under those directions, Ms Vickers’ is granted liberty to apply for a direction that the experts confer once Coles’ expert evidence has been filed. At that stage, the parties will be better positioned to understand what matters, if any, are in dispute between the parties.
[15] Ms Vickers has been placed on notice by Coles as to the deficient form of the draft reports prepared by Dr Truslove. The directions provide her and Dr Truslove with an opportunity to attend to those deficiencies when they file the reports in their final form. It is a matter for her whether she takes advantage of that opportunity. However it should be made clear that if Dr Truslove’s reports do not conform to the fundamental requirements of an expert’s report, they may be regarded as having no probative value or not admitted into evidence at all. Those fundamental requirements are that the report must set out the expert’s qualifications, the assumptions used (that is, the facts and grounds relied upon), and the process of reasoning or calculation used to reach the stated conclusions or opinions.”
Ms Vickers files a further report of Dr Truslove
[18] On 13 September 2017 Ms Vickers filed a further statement made by Dr Truslove dated 11 September 2017 which attached an expert report made by him. In that report Dr Truslove referred to the 17 August 2011 request, and also stated the conclusion that 53% of Coles’ employees were paid less under the 2011 Agreement than under the Coles Award. On this basis Dr Truslove concluded that, in relation to the 17 August 2011 request, the chance of 10 random employees being paid more under the 2011 Agreement than under the Coles Award was 1 in 1,900, and therefore that:
“The reported outcome, of all 10 sampled employees having a wage greater than the Award, is inconsistent with any assumption that the employee rosters were selected at random or were produced under the method sought by the Fair Work Commission.”
13 September application
[19] In her 13 September application Ms Vickers sought production by Coles of documents falling within the following description: “Store rosters covering the period Monday, 1 August 2011 to Sunday, 14 August 2011 for the following stores: i ‘Essendon Fields, VIC’; ii. ‘Albury, NSW’”. In support of this application Ms Vickers referred to the approval process for the 2011 Agreement and the provision by Coles of pay records for rosters for five employees from Essendon Fields, Victoria and five employees from Albury, New South Wales in response to the 17 August 2011 which we have earlier set out. Ms Vickers contended that:
● none of the employees whose rosters were provided to the Commission worked after 11pm, at a time when Coles employed persons predominantly working night work;
● it was probable that the rosters provided by Coles were carefully selected from two separate stores to avoid producing rosters which highlighted that some workers would be worse off under the 2011 Agreement;
● the affidavit of a Coles employee (who we will refer to a witness AB for confidentiality reasons) sworn on 12 September 2017 confirmed that when Coles sought approval of the 2011 Agreement, it employed persons predominantly working nights;
● a “standard nightfill hours analysis” which compared the 2011 Agreement to the Coles Award as at August 2011 showed that employees working 8pm to midnight on Monday to Friday and 6pm to 10pm Saturdays and Sundays were worse off under the 2011 Agreement than under the 2002 Award;
● Dr Truslove’s expert report dated 11 September 2017, based on five complete Coles sample rosters, showed that 53% of Coles’ employees were worse off under the 2011 Agreement than under the 2002 Coles Award;
● the odds that Coles could randomly select a single store where the first five employees with surnames beginning with “B” and “C” were less than 1 in 1,900;
● Coles probably did not have a single store roster which complied with FWA’s request;
● Ms Vickers foreshadows contending that Coles went to substantial and deliberate efforts to conceal from the Commission that they were aware that the 2011 Agreement could not pass the BOOT; and
● the documents were sought to be produced to remove any “residuary doubt” that this was the case.
[20] Accompanying the 13 September application was the affidavit of witness AB which stated that she was employed by Coles prior to 2010 as a service assistant, attached a roster which was issued to her in 2010, and said that she was working the same or similar hours in 2011 based on the fact that “these were the standard hours employees like myself were working at the time”. She also averred that prior to the vote for the 2011 Agreement it was never explained to her that the 2011 Agreement could pay her less that what she might otherwise be entitled to “under the Award”. The 13 September application was also accompanied by the “standard nightfill hours analysis” referred to in that application.
The 20 September Coles letter
[21] On 20 September 2017 Coles sent a lengthy letter to the Commission (20 September Coles letter) contending that the Commission should, as a preliminary question, “determine whether it ought further consider Ms Vickers’ application”. In support of this proposition, Coles submitted, among other things, that based on the evidence filed by Ms Vickers her case for retrospective termination of the 2011 Agreement was “very weak”. In this connection Coles submitted that the reports prepared by Dr Truslove were “deeply flawed” and had “no probative value”. In particular, Coles submitted, Dr Truslove’s comparison of the 2011 Agreement and the Coles Award in his 31 August 2017 report (earlier referred to) did not disclose its methodology, contained obvious errors including that it used incorrect penalty rates for the Coles Award calculations, and its results were “implausible on their face”. Coles also pointed to the fact there was an unexplained departure from the result of the 31 August 2017 report in the Dr Truslove’s later 11 September 2017 report, in that the former calculated that 63% of employees were better off under the Coles Award than under the 2011 Agreement whereas in the latter the figure used was 53%.
[22] The 20 September letter also set out reasons why the order for production sought in the 13 September application should not be made. Coles submitted that, first, Dr Truslove’s probability calculation in his 11 September 2017 report was founded on a baseless 53% underpayment figure, second, the production of the documents would likely prompt Dr Truslove to prepare a new wages analysis and thus cause further delay, and, third, Ms Vickers was trying to “second-guess” the method used by FWA to apply the BOOT to the 2011 Agreement in 2011.
Further Dr Truslove reports filed on 29 September 2017
[23] On 29 September 2017 Ms Vickers sent an email to the Commission which attached and purported to file a letter of Dr Truslove dated 27 September 2017“commenting on changes to expert opinion” and an “amended Report of Dr Truslove” dated 26 September 2017. In the former document Dr Truslove identified difficulties in the data provided to him by Coles, noted that in respect of his earlier analysis of the 2011 Agreement compared to the Coles Award he had “noticed that a Sunday loading was set at 200% rather than 150%”, and concluded that 27% of Coles employees were paid less under the 2011 Agreement than under the Coles Award. In the latter document Dr Truslove set out the calculation he used to arrive at the 27% figure, and on that basis calculated that the probability of randomly producing 10 rosters where the employee was paid more under the 2011 Agreement than the Coles Award was 1 in 23. He maintained his conclusion that this was inconsistent with the selection of the employee rosters in response to FWA’s request of 17 August 2011 being at random.
Full Bench’s response of 5 October 2017
[24] Having considered the 20 September letter and the additional material purported to be filed by Ms Vickers on 29 September 2017, we caused the following correspondence to be sent to the parties by the Associate to the presiding member on 5 October 2017 (formal parts omitted):
“I refer to Seyfarth Shaw’s correspondence dated 20 September 2017 and the response thereto of Ms Vickers dated 29 September 2017.
Having considered the correspondence, the Full Bench has decided it will not summarily dismiss Ms Vickers’ application, and the matter will proceed to hearing on the dates listed, being 20-24 November 2017 and 4-8 December 2017.
Additionally it is noted that in her email response to Seyfarth Shaw’s correspondence, Ms Vickers attached and purported to file a “letter of Dr Truslove dated 27 September 2017 commenting on changes to expert opinion” and an “amended Report of Dr Truslove (amended 26 September 2017)”, in contravention of direction 4 of the Full Bench’s directions made on 8 September 2017. That direction provided: ‘The Applicant will not be entitled to rely upon, as evidence in chief, any expert report, witness statement or other evidentiary material which was not filed and served either on or before 31 August 2017 or in accordance with direction 2’. Accordingly the attached documents will not be accepted for filing. If Ms Vickers wishes to file the documents, it will be necessary for her first to apply for a variation to the Full Bench’s directions of 8 September 2017.”
9 October Application
[25] On 9 October 2017, pursuant to our 5 October 2017 correspondence, Ms Vickers applied for a variation to our directions of 8 September 2017 such as to permit her to file the following documents:
● the amended report of Dr Truslove dated 26 September 2017;
● Dr Truslove’s letter of 27 September 2017“commenting on changes to expert opinion”;
● a new expert report of Dr Truslove dated 8 October 2017; and
● the Report of the Senate Education and Employment References Committee concerning Penalty Rates of October 2017.
[26] The new expert report of Dr Truslove concerned comparisons between employee pay under the 2014 Agreement and the 2011 Agreement compared to the Retail Award. In this report Dr Truslove concluded that 61% of Coles employees were paid less under Coles’ current pay arrangements than under the Retail Award, and that 91% of Coles employees would earn less under the wage rates in the 2011 Agreement than under the Retail Award. This report appears to revise calculations made in Dr Truslove’s 31 August report.
[27] The Senate Report concerned the following terms of reference:
“(a) claims that many employees working for large employers receive lower penalty rates under their enterprise agreements on weekends and public holidays than those set by the relevant modern award, giving those employers a competitive advantage over smaller businesses that pay award rates;
(b) the operation, application and effectiveness of the Better Off Overall Test (BOOT) for enterprise agreements made under the Fair Work Act 2009;
(c) the desirability of amending the Fair Work Act 2009 to ensure that enterprise agreements do not contain terms that specify penalty rates which are lower than the respective modern award;
(d) the provisions of the Fair Work Amendment (Pay Protection) Bill 2017; and
(e) any other related matter related to penalty rates in the retail, hospitality and fast-food sectors.”
[28] In written submissions accompanying the 9 October application, Ms Vickers submitted that she had complied with all case management directions with the exception only of the production of expert reports, which “were not within her personal power” and were not delayed “due to any deliberate disregard or indifference”. The delays, she explained, were due to anomalies within Coles’ payment data, which required standardisation, start and finish times which were required to be combined to reflect single shifts and random duplicate data entries. She contended that data and hard drive issues experienced by Dr Truslove served to frustrate the nomination of a genuine completion date.
11 October application
[29] On 9 October 2017, in accordance with direction 6 of the 8 September directions, Coles filed the expert report of Mr Martin Langridge of Deloitte Risk Advisory Pty Ltd (Langridge report). On 11 October 2017 Ms Vickers wrote to the Commission claiming that the Langridge report did not comply with the Commission’s requirements regarding expert reports, namely that the reports did not contain individual employee calculations. Ms Vickers protested further that Coles had analysed data for different periods to those analysed by Dr Truslove, that the data which the Langridge reports were based upon had not been served on her and that the Langridge report did not include every employee shift in its analysis. Ms Vickers sought that the following orders be made:
1. Coles shall file in the Commission and serve on the other parties the expert reports of Mr Martin Langridge in final form on or before 5:00 pm, 19 October, including:
a. a full analysis for all employees;
b. individual employee calculations for all employees.
2. Coles shall file in the Commission and serve on the Applicant:
a. the same data (including the format) provided to Mr Langridge for his report;
b. The ‘wage schedule workbook’ referred to in para 5.19 (p.30) of Mr Langridge’s report of 9 October 2017.
3. Coles will not be entitled to rely upon, as evidence in chief, any expert report, witness statement or other evidentiary material which was not filed and served on or before 5:00pm 19 October 2017.
Submissions in response to the 9 October application and the 11 October application
[30] Coles submitted that the 9 October application should be refused on the papers on the following grounds:
1. Ms Vickers had repeatedly caused delays, sought extensions of time and breached the Commission’s directions, and the explanations for her delays were either non-existent or unsatisfactory.
2. Ms Vickers had been provided with a more than sufficient opportunity to provide her evidence-in-chief, having been permitted to “drip feed” her material in multiple tranches, with adjournments of the final hearing and concessions having been made by Coles to avoid further adjournments.
3. The reports of Dr Truslove filed on 29 September 2017 and 9 October 2017 were either inadmissible or had no probative value in that they failed to properly disclose Dr Truslove’s assumptions and methodology and in their assumptions and repeated revisions of figures demonstrated that Dr Truslove lacks credibility. The Senate Inquiry Report proposed to be filed was inadmissible as it was not relevant to the issues in the proceeding.
4. Case management and procedural fairness considerations required the dismissal of the application, because the likely impact of granting the application would be the requirement to further adjourn the final hearing which would result in turn in a waste of the Commission’s resources, delay in Coles’ 2017 Agreement proceeding to a vote, and prejudice to Coles and the other parties.
[31] The SDA likewise opposed the granting of the 9 October application on similar grounds to those pressed by Coles, with the further submission that the expert report of Dr Truslove dated 8 October 2017 included an irrelevant analysis, being the comparison between the 2011 Agreement and the Retail Award. The purpose of that analysis was not stated and was an artificial construct given that it was not disputed that the Retail Award was not the reference instrument for the purposes of the BOOT at the time of the approval of the 2011 Agreement.
[32] In relation to the 11 October application, Coles submitted that it had complied with the directions of the Commission and that the Langridge report did exactly what Ms Vickers contended that it did not do, that is, it analysed each Coles team member based upon the hours that they worked. Coles did not oppose the Commission making the order numbered 2, provided that the making of any such order did not give rise to a delay in the hearing, and with the caveat that it was not for Ms Vickers to dictate what evidence Coles led in the matter. The final order was unnecessary given Coles had complied with all directions to date and intended to file the remainder of its materials in accordance with the directions of the Commission.
Consideration
[33] We will deal with the 13 September application, the 9 October application and the 11 October application in that order.
[34] With respect to the 13 September application, we accept that the position has changed since we rejected Ms Vickers’ application for an order requiring the production of documents concerning the making and approval of the 2011 Agreement in our 9 June decision. Ms Vickers, as earlier set out, has articulated in her outline of submissions filed on 31 August 2017 a case to the effect that the 2011 Agreement did not pass the BOOT at the time Coles made application for its approval, and that Coles acted improperly in its provision of requested information to FWA concerning the BOOT. In support of that case, she has filed reports of Dr Truslove on 31 August and 11 September 2017 which have expressed the conclusion that a majority of Coles’ employees were paid less under the Agreement than the Coles Award at the time the application for approval of the 2011 Agreement was made, and that it was not possible that the sample of employee pay rosters provided to FWA at the time showing that all employees were better off under the 2011 Agreement was randomly generated. In short Ms Vickers has now squarely advanced a case (albeit belatedly) challenging at least one aspect of the approval process for the 2011 Agreement. That case is clearly critical to her position that the 2011 Agreement should be terminated retrospective to its date of approval. We are therefore satisfied that pertinent documents relating to how Coles responded to the 17 August 2011 request for the provision of randomly selected rosters has the necessary apparent relevance to an issue in contest in the proceedings.
[35] Of course, to say that Ms Vickers has advanced a case of that nature is not to express any view about its merits, and as earlier stated Coles’ position is that the reports of Dr Truslove upon which that case is founded are fundamentally flawed and have no probative value. However we are not in a position at this stage, without having heard the evidence, to determine that Ms Vickers’ case in this respect is entirely without merit.
[36] The actual documents sought by Ms Vickers are the entire rosters for the relevant period for the two stores from which the actual ten rosters were provided in 2011. It is not apparent to us how the provision of those documents would resolve one way or the other any question concerning whether the ten rosters which were actually provided were randomly selected as requested by FWA, or were the product of some manipulation as alleged by Ms Vickers. We are concerned that the provision of such documents will rather be used for the different purpose of undertaking a new series of pay comparisons, for the rosters provided, between the 2011 Agreement and the Coles Award, and that the attempted provision of yet another expert’s report shortly before the hearing will be the ultimate result. We will not permit that to occur, and accordingly we will not make the order for production sought by Ms Vickers. We consider that the better course to resolve Ms Vickers’ allegation that Coles’ response to the 17 August 2011 request was manipulated would be require Coles to:
(1) provide an affidavit from the person who oversaw the response to the 17 August 2011 request (presumably Mr Yoannides) describing how the rosters provided to FWA were selected; and
(2) produce all documents recording or concerning Coles’ response to the 17 August 2011 request.
[37] We will make orders to give effect to this conclusion.
[38] In relation to the 9 October application, we decline to vary the 8 September directions as sought by Ms Vickers. As our earlier procedural summary of this matter demonstrates, Ms Vickers has been granted two significant extensions of time to file her expert evidence. On both occasions this resulted in hearing dates set in this matter having to be vacated. On the latter occasion the extension was granted despite us not being satisfied that Ms Vickers had a proper explanation for her failure to comply with our earlier directions, and on the basis that it was made clear to Ms Vickers that she would not be afforded a further opportunity to file her evidentiary case.
[39] Ms Vickers seems to consider that she is entitled to continually adjust and evolve her evidentiary case notwithstanding the directions the Commission has made. This is seen most particularly in the way she has sought to file reports of Dr Truslove which set out different conclusions on each occasion, so that he has become somewhat of a “moving target”. For example, as we have earlier set out, it appears that he has quantified the percentage of Coles employees allegedly paid less under the 2011 Agreement as compared to the Coles Award at 63%, then 53%, and then 27%. This makes it difficult for Coles and the other respondents to Ms Vickers’ application to pin down the evidentiary case which they are required to meet. If Dr Truslove’s latest reports are permitted to be filed, the likelihood is that, as a matter of procedural fairness, it would be necessary to further adjust the directions to allow the respondents an adequate opportunity to file evidence in reply or at least give them time to analyse those reports. The risk is that the latest hearing dates which have been set might need to be vacated, thus causing further delay in the matter.
[40] As our earlier procedural decisions demonstrate, we have made every allowance for the fact that Ms Vickers is a self-represented litigant whose application raises factual issues of considerable dimension and complexity. As a result of the previous extensions of time granted to her to file her evidence, Ms Vickers has had from 27 June 2017, when the bulk of Coles pay data was produced to her, until 13 September 2017 (under the 8 September directions) to file her expert’s report. That is a period of eleven weeks, in circumstances where the initial indication of Ms Vickers and Dr Truslove was that the report would take six weeks to prepare. Expert reports were actually filed in accordance with the 8 September directions, and the primary basis for the variation to the directions sought by Ms Vickers appears to us to be to allow Dr Truslove to change his conclusions in response to the criticisms advanced in the 20 September Coles letter. That is not a proper approach. As to the Senate Report, even if it is admissible (noting that it may be subject to parliamentary privilege), we do not consider that it could be probative of any issue in contest before us.
[41] Section 577 of the FW Act requires us to hear and determine Ms Vickers’ application in a manner that is, relevantly, fair, just and quick. We consider that Ms Vickers has been afforded a more than adequate opportunity by our previous directions to file her evidentiary case, and any further extension of time to allow her to file more material would not be fair or just and would be conducive of further delay in the matter. The 9 October application is therefore rejected.
[42] We also reject Ms Vickers’ 11 October application. Ms Vickers may request that Coles provide to her any supporting documents or underlying calculations in respect of the Langridge report, and if such a request is made we would expect that Coles would respond to it promptly. If any dispute arises about the provision of such information, Ms Vickers may apply for an order for the production of documents. Further, it is open for Ms Vickers at the hearing to advance for determination any objection as to the admissibility of the Langridge report and to make submissions about the weight to be assigned to it.
Orders
[43] We make the following orders:
(1) Coles shall, on or before 7 November 2017, file and serve an affidavit made by a person with the requisite direct knowledge which deposes as to the steps taken by Coles to respond to the 17 August 2011 request.
(2) Coles shall, on or before 7 November 2017, produce to the Commission at its Sydney registry all documents recording or concerning the steps taken by Coles to respond to the 17 August 2011 request.
VICE PRESIDENT
1 [2017] FWC 2609
2 [2017] FWCFB 3131
3 Ibid at [14](3)
4 [2017] FWCFB 3999
5 [2017] FWCFB 4693
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