Application by Vickers
[2017] FWCFB 4693
•8 SEPTEMBER 2017
| [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 | 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 involved was far smaller in extent than what was envisaged at the time that indication was given.
On 26 July 2017, a day before she was due to file her evidentiary case pursuant to the 19 May 2017 directions, Ms Vickers applied for an extension of time until 31 August 2017. This extension of time application, which was opposed by Coles, was the subject of a 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[5] (ultimately no further documents were produced by Coles). We dealt with her application for an extension of time in a decision issued on 28 July 2017[6] as follows:
“[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.”
The amended directions gave Mr Vickers the extension of time she sought to 31 August 2017, and changed the hearing dates to 6-10 and 20-24 November and 4-8 December 2017.
On 31 August 2017 Ms Vickers filed the following materials:
(1) an outline of submissions;
(2) a list of documents (most of which were not physically provided);
(3)a draft report entitled “Analysis of Coles Wages Data: BOOT purposes” prepared by Dr Truslove;
(4)a draft report entitled “Value of Choice of Superannuation Fund” prepared by Dr Truslove;
(5) a short witness statement made by an unidentified person.
Ms Vickers also indicated that she intended to file and serve at an unspecified time in the future:
(1) final versions of Dr Truslove’s reports;
(2)a report by an independent expert verifying Dr Truslove’s calculations (to answer any criticism that Dr Truslove, being Ms Vickers’ father, was not independent); and
(3)a further “confidential” (that is, anonymous) witness statement.
In correspondence dated 7 September 2017, Coles made the following complaints about the evidentiary material filed by Ms Vickers:
Dr Truslove’s reports had only been filed in draft and not final form;
his reports only stated bare conclusion and did not specify his qualifications, the assumptions that he used, or the process of reasoning or calculations used to arrive at his conclusions;
the anonymous statement was unable to be tested by Coles, and a further statement of this nature was foreshadowed;
further evidence, including a further expert report, was proposed to be filed outside the directions made by the Commission and this would prejudice Coles’ capacity to prepare its own case in accordance with the directions.
In light of these difficulties, a directions hearing was conducted before Hatcher VP earlier today. At that directions hearing, Ms Vickers ultimately applied for a further extension of time of eight weeks in order for her to be able to file the remainder of her evidence. She also sought, for the first time, an opportunity to file a further expert’s report in reply to Coles’ expert evidence, and sought a period of ten weeks to allow for this. Additionally she sought a direction that the parties’ experts confer before giving evidence to endeavour to resolve any disagreements between them.
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.
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.
As a result of a number of concessions by Coles, Ms Vickers and the other parties, we consider that it is practicable to vary the directions and the hearing dates in a way which allow the hearing to complete this year. The concessions relevantly include that:
· neither Coles nor any other party will object to Dr Truslove’s reports merely on the ground that he is Ms Vickers’ father;
· Ms Vickers will consequently not seek to file the foreshadowed verifying report from an independent expert;
· Ms Vickers will provide the witness statements of the “confidential” witnesses in proper form identifying their names and addresses, and will if necessary apply for confidentiality orders in relation to those witnesses;
· Coles is content for the witness statement of the second “confidential” witness to be filed by 5 October 2017;
· Coles will file the report of its expert in reply to Dr Truslove early, on 9 October 2017; and
· the parties accept that the matter can be heard in two weeks, and accordingly the hearing days listed for 6-10 November may be vacated to allow further time for preparation of Ms Vickers’ case.
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.
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.
There was a separate application made by Coles for confidentiality orders over a range of documents. We will make such orders in relation to:
(1)the data produced by Coles pursuant to the order for production dated 20 June 2017 under cover of a letter dated 27 June 2017, including that letter;
(2)the rosters and summaries produced by Coles pursuant to the order of 16 December 2016.
We consider that confidentiality orders covering these documents are appropriate because they contain either personal information pertaining to individual Coles’ employees or commercially sensitive information. There should also be confidentiality orders applying to any materials or submissions which refer to these documents
It is not necessary to make a confidentiality order in relation to the affidavit of Mr Shane McGilvray sworn on 27 April 2017, as sought by Coles. That affidavit has not and will not be read. The Commission will remove the affidavit from the file and return it to Coles. The other parties are directed to likewise return their copies of the affidavit to Coles. We decline to make a confidentiality order in relation to the witness statement of Mr Eshan Dissanayake dated 2 June 2017. That statement (except its annexures) has already been tendered in open court and been the subject of submissions, and has been referred in an earlier decision.[7] It is too late to make it confidential now.
Coles also sought an order that if any person who is not a party to the proceedings seeks access to the Commission’s file in this matter, they should first make an application for leave to do so, which should be made on notice to the other parties to the proceedings. We consider that such an order is unnecessary. Access to the file will ordinarily be granted to members of the public in the interests of open justice, but this will obviously not extend to documents that are the subject of confidentiality orders. Where there is a pending application for a confidentiality order in relation to a document, access to that document will not be granted before the application has been determined.
Coles is directed to file a draft confidentiality order to give effect to our decision.
VICE PRESIDENT
Appearances:
P Vickers on her own behalf with Dr A Truslove.
S Wood QC and M Felman of Counsel with G Simmonds on behalf of Coles Supermarkets Australia Pty Ltd.
D Macken on behalf of the Shop, Distributive and Allied Employees Association.
T McKernan on behalf of the Australian Workers Union.
C Buckley on behalf of the Australian Meat Industry Employees Union.
J Cullinan on behalf of Mr Smith and Mr Suter – employees of Coles.
Hearing details:
2017.
Sydney:
8 September.
| amended DIRECTIONS |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Mrs Penelope Vickers
(AG2016/3797)
| Vice President Hatcher | SYDNEY, 8 SEPTEMBER 2017 |
The Commission makes the following directions:
The directions made on 28 July 2017 are vacated.
The Applicant shall file in the Commission and serve on the other parties:
(a)any further application for the production of documents, together with a written submission in support of the application, on or before 5.00pm Wednesday 13 September 2017;
(b)in relation to the anonymous witness statement filed on 31 August 2017, a version of the statement which identifies the name and address of the maker of the statement and is signed, but is not otherwise amended, on or before 5.00pm Wednesday 13 September 2017;
(c)any application for confidentiality orders in relation to the witness statement in (b) on or before 5.00pm Wednesday 13 September 2017;
(d)copies of documents in the list of documents filed on 31 August 2017 which have not already been provided on or before 5.00pm Friday 15 September 2017;
(e)the expert reports of Dr Truslove in final form on or before 5.00pm Tuesday 19 September 2017;
(f) the further “confidential” witness statement foreshadowed by the Applicant on or before 5.00pm Thursday 5 October 2017;
(g)any application for confidentiality orders in relation to the witness statement in (f) on or before 5.00pm Thursday 5 October 2017;
If an application for confidentiality orders is made pursuant to direction 2(c) and/or direction 2(g), the statement the subject of the application may be served (but not filed) in a form which redacts the name, address and signature of the maker of the statement until such time as the confidentiality application is determined.
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.
Coles Supermarkets Australia Pty Ltd (Coles) shall file a written submission in respect of any application made by the Applicant pursuant to direction 2(a) on or before 5.00pm Wednesday 20 September 2017.
Any party opposing the application shall file in the Commission and serve on the Applicant an outline of submissions and any witness statements and other documentary material on which the party seeks to rely on or before 5.00pm 19 October 2017, provided that Coles shall file and serve the expert report of Mr Martin Langridge on or before 5.00pm Monday 9 October 2017.
The Applicant shall file and serve any expert report in reply on or before 5.00pm Monday 6 November 2017.
Liberty to apply is granted for a direction to be made that the expert witnesses are to confer with each other concerning their evidence prior to the hearing of the matter. Any such application shall be made after 19 October 2017.
The matter will be the subject of a further directions hearing before Vice President Hatcher at 9.00am on 10 November 2017 in Sydney (video-links available on request).
10.The matter will be listed for hearing before the Full Bench from 20-24 November 2017 and 4-8 December 2017 in Brisbane (video-links available on request).
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
[1] [2017] FWC 2609
[2] Transcript 18 May 2017, PNs 31-59
[3] [2017] FWCFB 3131
[4] Ibid at [14], [16]
[5] Transcript 28 July 2017 PNs 84-87
[6] [2017] FWCFB 3999
[7] [2017] FWCFB 3131
Printed by authority of the Commonwealth Government Printer
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