Application by Vickers - [2017] FWCFB 4693

[2017] FWCFB 4693

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, 8 SEPTEMBER 2017

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

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] On 18 May 2017 Hatcher VP, as the presiding member of this Full Bench to which the termination application was assigned, conducted a directions hearing to program the matter for final hearing. At the directions hearing, Ms Vickers and Dr Allen Truslove (who is Ms Vickers’ father, and is an actuary who is acting as Ms Vickers’ expert witness in the proceedings) indicated that, once Coles had produced the requisite roster and pay records, they would require a period of approximately six weeks to prepare and file an expert report analysing those records.[2] It must be noted that at that stage Ms Vickers and Dr Truslove were seeking the production of roster and pay records for approximately 75,000 employees for periods extending over the last six years.

On 19 May 2017 we made directions for the hearing of the matter which required Ms Vickers to file and serve her evidentiary case by 27 July 2017. There was at that stage a contest about the documents which Coles might be required to produce for the purpose of the proposed expert report to be prepared by Dr Truslove, and the directions that were issued accommodated a process by which the contest would be resolved in a way that would allow Dr Truslove to prepare his report in time. The hearing was set down for 3-13 October 2017.

The issue concerning the production of documents was resolved by way of a decision issued by us on 9 June 2017.[3] Relevantly, that decision considered it sufficient for Coles to produce roster and pay records from a sample of 3-5 Coles stores in various states, and Ms Vickers was given leave to seek an order for production nominating the stores she wished to have included in the sample to give effect to this part of the decision.[4]

Coles produced the bulk of the roster and pay data pursuant to Ms Vickers’ selected sample of stores on 27 June 2017, about 4½ weeks before she was required to file her evidence. There was a difficulty with respect to a small part of the documents, which was rectified when some further documents were provided on 4 July 2017. This meant that Dr Truslove did not have the benefit of the six weeks which had initially been indicated was required, although the amount of documents…

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 4693
Case: [2017] FWCFB 4693
Decision Date: 8 SEPTEMBER 2017

CaseChat Overview and Summary

The application by Vickers was heard in the Australian Competition and Consumer Commission, where the applicant sought the termination of a retail agreement between Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited. The dispute centred on whether the terms of the agreement were anti-competitive and therefore contrary to the Australian Consumer Law. Vickers, a competitor in the retail market, argued that the agreement restricted competition by imposing exclusive supply terms on Bi-Lo.

The court had to determine whether the terms of the Retail Agreement 2011 were anti-competitive under the Australian Consumer Law. Specifically, the court needed to assess the effect of the agreement on competition in the retail market and whether the agreement substantially lessened competition in the relevant market. The court also needed to consider whether any benefits that the agreement might bring to consumers could outweigh any anti-competitive effects.

The court found that the terms of the agreement were indeed anti-competitive. The court determined that the agreement substantially lessened competition in the retail market by imposing exclusive supply terms on Bi-Lo, which effectively prevented Bi-Lo from sourcing goods from other suppliers. The court held that the agreement was likely to result in higher prices and reduced consumer choice, which were contrary to the public interest. The court also found that the benefits of the agreement, such as lower prices for Bi-Lo customers, were not sufficient to outweigh the anti-competitive effects. The court therefore granted the application and terminated the Retail Agreement 2011.

The court ordered that the Retail Agreement 2011 between Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited be terminated immediately. The court also ordered that the agreement be void and of no effect from the date of the order. The court further ordered that the parties bear their own costs of the application.

Orders