Application by Vickers

[2017] FWCFB 4295

[2017] FWCFB 4295

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, 17 AUGUST 2017

Application for termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 - applications for orders for production of documents

Introduction and background

[1] This decision concerns applications for orders for the production of documents made by Ms Penelope Vickers in her application 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).

[2] On 9 June 2017 this Full Bench issued a decision 1 (9 June decision) which dealt with, among other interlocutory issues, an application by Ms Vickers for an order requiring Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited (collectively Coles) and Wesfarmers Limited (Wesfarmers) to produce documents in a number of specified categories. Relevantly, we determined to issue an order upon Coles for the production of the following documents:

All documents (including but not limited to communication, reports, and financial statements) associated with the application to sanction the Coles Store Team Enterprise Agreement 2014-2017 (2014 Agreement) that fall within any of the following categories:

1. The Documents relating to the authorisation given to Mr Angelo Yoannidis to sign and file the Statutory Declaration declared by him on 18 May 2015 in relation to the application for the approval of the 2014 Agreement (Category 1). 


2. The Documents used or relied upon by Mr Angelo Yoannidis to assist or form his belief as to the truth and accuracy of the Statutory Declaration declared by him on 18 May 2015, and in particular with respect to the answer to question “3.6 Do you think the agreement passes the better off overall test?” (Category 2). 


3. The Documents relied upon by Mr Angelo Yoannidis to select the sample indicative rosters forming part of the said Statutory Declaration declared on 18 May 2015 (Category 3). 


4. In relation to the decision to file the application with the Commission for approval of the 2014 Agreement (Category 4)

(a) All Documents relied upon by any board of directors or any divisional board of directors or a steering committee, including the Audit and Risk Committee, within Coles Supermarkets Australia Pty Ltd (Coles) or Bi-Lo Pty Ltd (Bi-Lo).

(b) All Documents recording or concerning the financial impact of the proposed Enterprise Bargaining Agreement (EBA) showing the recommendation and/or decision of the board of directors or any divisional board of directors or a steering committee, including the Audit and Risk Committee, within Coles or Bi-Lo.

[3] The relevance to the proceedings of documents relating to the approval of the 2014 Agreement was explained in the 9 June decision as follows:

“... As earlier outlined, Ms Vickers’ case for retrospective termination of the 2011 Agreement (at least from 10 July 2015) is fundamentally based on the proposition that the erroneous approval of the 2014 Agreement on that day was the result of misleading conduct on the part of Coles in terms of the information it provided to employees and the Commission and prevented any termination application being made prior to 5 July 2016. The documents sought have (with some exceptions we will identify) apparent relevance to that aspect of Ms Vickers’ case. We do not accept that Ms Vickers’ case in that respect has been advanced without any reasonable basis for it. We consider that it is reasonably arguable, having regard to the conclusions of the Full Bench in determining that the approval of the 2014 Agreement should be quashed, that Coles ought reasonably to have known that the 2014 Agreement could not satisfy the BOOT when it applied for its approval.” 2

[4] Insofar as Wesfarmers was concerned, we said in the 9 June decision:

“[14] ... Any order for production should, at least at the initial stage, be directed at Coles (that is, Coles Supermarkets Australia Pty Ltd), and not Wesfarmers Limited. Coles is the employer under the 2011 Agreement and can be presumed to hold the relevant documents. There is nothing before us to indicate that any relevant documents are held by Wesfarmers Limited, and we were informed by senior counsel for Coles that Wesfarmers was not involved in the approval process for the agreements. If there is a failure by Coles to produce the required documents because they are held by another entity, this issue can be revisited then...”.

[5] An order for production giving effect to the relevant aspect of the 9 June decision was issued on the same date (9 June order). Coles subsequently produced a number of documents pursuant to the 9 June order, and they were made available for inspection by Ms Vickers at the Commission’s Brisbane Registry.

[6] Having inspected the documents produced by Coles, on 3 July 2017 Ms Vickers filed in the Commission a further application for an order for the production of documents (3 July application) directed at Wesfarmers “and its controlled entities” (which were said to include Coles). The schedule to the proposed order was an amended version of schedule to the 9 June order as follows:

“All documents (including but not limited to communication, reports, and financial statements, including all legal advice and financial advice (Documents) associated with the application to sanction the Coles Store Team Enterprise Agreement 2014-2017 (2014 Agreement) that fall within any of the following categories:

1. The Documents relating to the authorisation given to Mr Angelo Yoannidis to sign and file the Application dated 18 May 2015 and the Statutory Declaration declared by him on 18 May 2015 in relation to the application for the approval of the 2014 Agreement.

2. The Documents used or relied upon by Mr Angelo Yoannidis to assist or form his belief as to the truth and accuracy of the Statutory Declaration declared by him on 18 May 2015, and in particular with respect to the answer to question“3.6 Do you think the agreement passes the better off overall test?”.

3. The Documents relied upon by Mr Angelo Yoannidis to select the sample indicative rosters forming part of the said Statutory Declaration declared on18 May 2015.

4. In relation to the decision to file the application with the Commission for approval of the 2014 Agreement

(a) All Documents relied upon by any board of directors or any divisional board of directors or a steering committee, including the Audit and Risk Committee, within Coles Supermarkets Australia Pty Ltd or Bi-Lo Pty Ltd.

(b) All Documents recording or concerning the financial impact of the proposed EBAs showing the recommendation and/or decision of the board of directors or any divisional board of directors or a steering committee, including the Audit and Risk Committee, within Coles or Bi-Lo.

A list of the above Documents, including: any document no longer in your possession or control; or for which there is objection to it being adduced into evidence, verified by Affidavit in accordance with rule 20.17 of the Federal Court Rules 2011.

Documents for which there is objection to it being adduced into evidence on the grounds that it contains confidential communication or is a confidential document within the meaning of section 118 (Legal Advice) of the Evidence Act 1995 (Cth) are to be produced to the Commission in a sealed envelope marked with reference to these orders, and is only to be opened by a member of the Commission.”

[7] Ms Vickers filed written submissions together with the 3 July application. In these submissions Ms Vickers contended that the documents produced by Coles in compliance with the 9 June Order were not satisfactory for the following reasons:

“1. The documents do not relate to the authorisation given to Mr Yoannidis in relation to the application and do not amount to a delegation of authority.

2. These documents could not have been relied upon to form a valid opinion for the Statutory Declaration that, ‘the agreement passes the better off overall test’. A valid opinion had to be based on a thorough analysis of Coles’ workforce. No such analysis has been produced.

3. Coles did not produce any documents that could have been validly relied upon, ‘to select the sample indicative rosters forming part of the said Statutory Declaration declared on 18 May 2015’. Two further sample rosters were produced. To assess whether the sample rosters forming part of the Statutory Declaration were ‘indicative’, regard had to be had to further information.

4. Coles did not produce any documents, ‘In relation to the decision to file the application…relied upon by any board of directors …,or …recording or concerning the financial impact of the proposed EBAs showing the recommendation and/or decision…’

a. even referencing the Award or the BOOT test; or

b. constituting a delegation of authority.”

[8] Upon ascertaining that Ms Vickers’ proposed order for production was opposed, a hearing concerning her application in that respect was listed for 17 July 2017. On 14 July 2017 Wesfarmers and Coles, who were represented by the same lawyers with respect to the matter, gave notice in writing that they intended to adduce evidence from Ms Linda Kenyon, the Company Secretary of Wesfarmers, and Mr David Brewster, the Legal Director of Coles Supermarkets Australia Pty Ltd, at the hearing, and filed and served witness statements made by Ms Kenyon and Mr Brewster.

[9] On 15 July 2017 (a Saturday), Ms Vickers sent a number of documents to the Commission, apparently at least partly in response to the evidentiary material filed by Coles. These included an amended application for an order for the production of documents (15 July application). The order was still sought against Wesfarmers and its controlled entities, including Coles. The schedule to the proposed order setting out the categories of documents sought was as follows:

“All documents (including but not limited to communication, reports, and financial statements, including all legal advice and financial advice (Documents) associated with the application to sanction the Coles Store Team Enterprise Agreement 2014-2017 (2014 Agreement) that fall within any of the following categories:

1. The Documents relating to the authorisation given to Mr Angelo Yoannidis, to sign and file the Application, and the Statutory Declaration declared by him on 18 May 2015 in relation to the application for the approval of the 2014 Agreement.

2. The Documents used or relied upon by Mr Angelo Yoannidis to assist or form the his belief as to the truth and accuracy of the Statutory Declaration declared by him on 18 May 2015, and in particular with respect to the answer to question “3.6 Do you think the agreement passes the11 better off overall test?”.

3. The Documents used or relied upon by Mr Angelo Yoannidis to select and/or produce the sample indicative rosters forming part of the said Statutory Declaration declared on 18 May 2015.

4. In relation to the decision to file the Application with the Commission for approval of the 2014 Agreement or to provide the undertakings given to the Commission:

(a) All Documents relied upon by any employee, director, board of directors or any divisional board of directors or a steering committee, including the Audit and Risk Committee, within Coles Supermarkets Australia Pty Ltd or Bi-Lo Pty Ltd.

(b) All Documents recording or concerning the financial impact of the proposed EBAs showing the recommendation and/or decision of any employee, director, the board of directors or any divisional board of directors or a steering committee, including the Audit and Risk Committee, within Coles or Bi-Lo.

(c) All Documents related to sanctioning or authorisation.

(d) All Documents related to advice provided or relied upon, including all documents produced for the purpose of obtaining or assisting in providing the advice.

A list of the above Documents, including: any document no longer in your possession or control; or for which there is objection to it being adduced into evidence, verified by Affidavit in accordance with rule 20.17 of the Federal Court Rules 2011.

Documents for which there is objection to it being adduced into evidence on the grounds that it contains confidential communication or is a confidential document within the meaning of section 118 (Legal Advice) of the Evidence Act 1995 (Cth) are to be produced to the Commission in a sealed envelope marked with reference to these orders, and is only to be opened by a member of the Commission.”

[10] The documents also included an application for an order requiring three persons to attend before the Commission and give evidence at the hearing on 17 July 2017: Angelo Yoannidis, Head of Employee Relations of Coles Supermarkets Australia Pty Ltd; John Durkan, Chief Executive Officer of Coles Supermarkets Australia Pty Ltd; and Richard Goyder, Chief Executive Officer of Wesfarmers Limited. The purpose of their proposed attendance to give evidence was described in the application as follows:

“1. Mr Angelo Yoannidis can give direct evidence as to the documents and authorization he relied upon before signing and filing the Application and Statutory Declaration on behalf of Coles.

2. Mr John Durkan, can give direct evidence as to the approval process for the Application and information relied upon.

3. Mr Richard Goyder, can give direct evidence as to as to the approval process for the Application and the oversight and involvement provided by Wesfarmers Limited and its related entities.”

[11] We infer that Ms Vickers intended to test the adequacy of Coles’ response to the 9 June order and to demonstrate that there were further documents capable of being produced by Coles and Wesfarmers to justify the grant of the 15 July application. In any event, the application was made too late in order for the Commission to consider the application let alone have the order issued and served before the hearing, which commenced at 4.00pm on Monday 17 July 2017.

[12] At the hearing, the witness statements of Ms Kenyon and Mr Brewster were tendered, and Ms Vickers cross-examined them. Coles and Wesfarmers submitted that the Commission should not consider the 15 July application because it was made too late and represented yet another attempt by Ms Vickers to obtain documents of a similar nature which was serving as a distraction from the task of preparing for the substantive hearing. Alternatively Coles sought further time to respond to the 15 July application. In the circumstances we directed the filing of further written submissions by the parties. Ms Vickers filed her submissions on 24 July 2017, and Wesfarmers and Coles filed their submissions on 31 July 2017.

The evidence

[13] Ms Kenyon gave the following evidence in her witness statement:

• Wesfarmers owned a range of businesses operated by subsidiary companies, which included Coles;


• Wesfarmers’ board of directors approved the strategic directions of the Wesfarmers Group, guided and monitored the management of Wesfarmers and its business in achieving its strategic plans, and oversaw the Wesfarmers Group’s governance practices;


• the Audit and Risk Committee was a standing committee which assisted the board to fulfil its responsibilities in overseeing the company’s financial reporting, compliance with legal and regulatory requirements, setting the risk parameters of the Wesfarmers Group and overseeing its systems of internal control and risk management;


• the Audit and Risk Committee had six scheduled meetings per year, for which agenda and committee papers were prepared, and minutes of each meeting were prepared by the company secretary;


• in relation to the documents sought in the proposed order in the 3 July application, Ms Kenyon had reviewed the agenda, board papers and minutes of the Wesfarmers Board over the relevant period, including reports prepared by Mr Durkan as the managing director of Coles, and the agenda, board papers and minutes from the Audit and Risk Committee; and


• there were no documents relating to the board or the Audit and Risk Committee sanctioning or authorising the decision to file the application for approval of the 2014 Agreement or sanctioning or authorising the 2014 Agreement in any other way.

[14] Ms Kenyon gave the following evidence of relevance during cross-examination by Ms Vickers:

• the “relevant period” for her search for documents ended on 31 July 2015;


• she was not aware of any whistleblower’s report which Ms Vickers had lodged with Wesfarmers on 8 October 2015;


• there might be other relevant documents held by Wesfarmers other than in agendas, board papers and minutes, but she did not think there would be;


• the Audit and Risk Committee did not hold any documents relating to the 2014 Agreement, and had never seen any information concerning the approval of the 2014 Agreement;


• it was possible that there might be relevant documents in other areas of Wesfarmers, but she had not searched for them;


• the Wesfarmers Group contained over 300 companies, and it was possible but unlikely that they held documents relating to the application for approval of the 2014 Agreement;


• all the businesses in the Coles division of the Wesfarmers Group reported to the divisional board, which was the board for Coles Supermarkets Australia Pty Ltd;


• there was no realistic probability that relevant documents might be held in an entity outside of Coles Supermarkets or its divisional board;


• the documents relating to the approval of the 2014 Agreement might well have never been presented to the Coles Supermarkets board; and


• any documents would be within Coles Supermarkets Australia Pty Ltd.

[15] Mr Brewster gave the following evidence in his witness statement:

• he reported to Coles’ managing director (Mr Durkan), was part of the Coles Executive team, and sat on meetings of the Coles divisional board;


• the Coles divisional board had quarterly meetings;


• the director for each business unit in the division prepared monthly reports which were distributed to members of the Executive team;


• in response to the 9 June order, Coles produced reports from the former operations director, Andy Coleman, for the months of December 2014, January 2015, February 2015, March 2015 and April 2015;


• where any issue was to be the subject of substantive discussion or approval at a Coles divisional board meeting, a formal board paper was prepared and circulated in advance of the meeting;


• agendas and minutes are also prepared for each Coles divisional board meeting;


• on his review of the materials of the Coles divisional board for the period 1 January 2014 to 31 July 2015, no papers were submitted concerning the sanctioning or authorising in any way of the 2014 Agreement or the decision to file the application for its approval, the board was not asked to sanction or authorise the decision to make the application, and the board did not in fact sanction or authorise the 2014 Agreement; and


• in relation to the 3 July application, Coles did not have any documents in the categories identified other than those produced in response to the 9 June order.

[16] Mr Brewster gave the following evidence during cross-examination by Ms Vickers:

[17] Mr Yoannidis had advised him that he had never received formal authorisation to file the application for approval of the 2014 Agreement and to make his accompanying statutory declaration, and had acted on his own initiative as an inherent part of his job as manager of employee relations;

[18] Mr Yoannidis had also advised that he believed that his statement in his declaration that the 2014 Agreement passed the BOOT was true, once all the monetary and non-monetary factors were taken into account;

[19] Mr Yoannidis said there had not been any modelling in relation to the matters he attested to, and the documents he had relied upon had already been produced;

[20] no-one within Coles formally approved Coles entering into the 2014 Agreement;

[21] he had not asked Mr Coleman what documents were produced or relied upon for the 2014 Agreement application;

[22] Mr Coleman was one of the three directors involved in the 2014 Agreement approval;

[23] Mr Brewster was satisfied on the basis of his own enquiries that Coles did not possess further documents, because the process was relatively clear as to how the 2014 Agreement had been reviewed by the relevant directors;

[24] he had asked Mr Durkan whether there were any meetings where the Coles divisional board or the Wesfarmers board had signed off on the 2014 Agreement, and he said no;

[25] he had not asked Jenny Bryant, who had formerly been the Human Resources Director for Coles, Rob Scott, the former finance director for Coles, David Rae, a general manager within Coles’ Human Resources division, Craig Taylor, Martin Lord, Jon Church, John Di Tirro, or Matt Swindells whether they had any relevant documents, because Mr Yoannidis had primary responsibility for searching documents responsive to the orders and was the lead on the steering committee, and Mr Yoannidis had conducted searches and had advised there were no responsive documents;

[26] he had not made enquiries of the Corporate Affairs, Store Planning Activity, Workforce Planning, Operations Finance, Payroll Operations, Workforce Management (IT) or the Central HR Advisory departments concerning the documents sought;

[27] Mr Yoannidis had searched all his personal files, the relevant computer directories and other hard copy records in ascertaining whether there were any documents to be produced;

[28] there had been no modelling done as to whether the 2014 Agreement passed the BOOT, although there had been financial modelling of the cost to Coles of the 2014 Agreement; and

[29] there was no legal advice relevant to the application to approve the 2014 Agreement.

Ms Vickers’ submissions

[30] In her written submissions, Ms Vickers pressed the order proposed in her 15 July application. She submitted that Coles had produced “incredibly few documents of any relevance” pursuant to the 9 June order, and that Mr Brewster’s evidence demonstrated that it had not made a reasonable effort to comply with that order because of his failure to make relevant enquiries of identified persons and areas of the business and his reliance on Mr Yoannidis undertaking the search. Ms Vickers also submitted that there was no basis for any order for production upon Wesfarmers to be limited to the board and the Audit and Risk Committee, since there may have been relevant documents held by Wesfarmers which did not reach the board level, and Ms Kenyon did not search beyond the board and the Audit and Risk Committee. More widely expressed orders were necessary in order to ensure that Coles’ lack of production was not due to unduly narrow wording, and to capture documents considered by any director or employee. It was also necessary to include legal and financial advice particularly as Coles had engaged lawyers at least between 9 June 2015 and 10 July 2015. It was also submitted that the decisions taken by Coles to limit the scope of undertakings offered in relation to the 2014 Agreement were relevant to establish Coles’ “culpability”. It was not conceivable that Coles had still not conducted a BOOT analysis when submitting its undertakings in response to concerns that the 2014 Agreement did not pass the BOOT. In relation to the application of the proposed orders to “controlled entities”, Ms Vickers submitted that neither Ms Kenyon or Mr Brewster had sworn that no other Wesfarmers controlled entity held relevant documents, the basis of opposition to an order applying to controlled entities had never been detailed, and their inclusion would avoid unintended complications associated with the principles in Briginshaw v Briginshaw 3at the hearing.

[31] Finally, Ms Vickers submitted that Mr Yoannidis, Mr Durkan and Mr Goyder could give “direct evidence” concerning the documents held by Coles and Wesfarmers and thereby “avoid the need for examination during the trial of the matter”.

Coles’ submissions

[32] In relation to the 3 July application, Coles consented to the proposed order insofar as it applied to it, but contended that the steps it had already taken to date were sufficient to comply with the obligations that would apply to it should the order be made. Wesfarmers also consented to the 3 July application, except that categories 1-3 in the Schedule should only extend to documents that were in the possession of the board or its Audit & Risk Committee, which is the only place where such documents would be kept. The proposed orders were opposed insofar as it was addressed to Wesfarmers’ “controlled entities”.

[33] Coles characterised the 15 July application as altering the order sought in the 3 July application as follows:

(a) the amendment of categories 1 to 3 such that they no longer specifically referred to Mr Yoannidis;

(b) the expansion of category 4 such that it extended to the decision by Coles to provide undertakings in relation to the 2014 Agreement;

(c) the further expansion of category 4 such that it included all documents relied on by (inter alia) any employee or director (of Wesfarmers or any of its 320 controlled entities) in relation to the decision to file the application to approve the 2014 Agreement or provide undertakings in relation to it;

(d) the further expansion of category 4 such that it captured “all documents related to sanctioning or authorisation” of the 2014 Agreement and “all documents related to advice provided or relied upon, including all documents produced for the purpose of obtaining or assisting in providing the advice.”

[34] Wesfarmers and Coles characterised the orders for production sought by Ms Vickers as lacking a legitimate forensic purpose, in that her case that Coles deliberately misled the Commission in relation to the approval of the 2014 Agreement was misconceived. Coles’ role in the process was to provide prescribed information, which it did, and to express an opinion about the BOOT. The determination as to whether the 2014 Agreement passed the BOOT was a matter for the Commission, not Coles. Ms Vickers had no basis to advance the serious allegations that she had made against Coles, and she had continually asked the Commission to countenance fishing expeditions in the hope of happening upon circumstantial evidence that might support her allegations. In relation to the specific alterations sought in the 15 July application (set out above), Coles submitted that:

(a) Ms Vickers had provided no reason for the proposed expansion in categories 1-3. It was not controversial that Mr Yoannidis had signed the application to approve the 2014 Agreement and the accompanying statutory declaration. Therefore there was no utility to expand it to include the authorisation of any person, and it would create ambiguity.

(b) Ms Vickers had unsuccessfully sought documents relating to the undertakings in her application for orders for production that was the subject of the 9 June decision, and now sought to re-litigate this. She had not demonstrated any nexus between her allegation that Coles had misled the Commission and documents relating to the undertakings, and there was no such nexus.

(c) The extension in category 4 to any “employee or director” was unwarranted and oppressive, since the evidence of Mr Brewster demonstrated that only Mr Yoannidis and Mr Durkan were involved in the decision to apply for the approval of the 2014 Agreement.

(d) The further broadening of category 4 lacked particularity, amounted to a requirement for general discovery, and was oppressive. Coles had already consented to orders which covered legal advice, and the proposed further extension lacked particularity or any coherent rationale.

Consideration

[35] We will consider first the question of whether any order should be made requiring the production of documents by Wesfarmers. The starting point is to indicate that we accept the evidence of Ms Kenyon and Mr Brewster. On the basis of their evidence, we make two findings in connection with Wesfarmers. First, the decision to enter into and apply for the approval of the 2014 Agreement was made internally within Coles, and did not involve any authorisation or approval on the part of the board or the Audit and Risk Committee of Wesfarmers. Second, there are no documents pertaining to the authorisation or sanctioning of the 2014 Agreement and the application to approve it in the minutes, agendas or papers for the Wesfarmers board or the Audit and Risk Committee in the period up to 31 July 2015. We accept that Ms Kenyon admitted that it was possible that there might be relevant documents held in other areas of Wesfarmers. However we do not consider that this admission itself justifies the making of an order against Wesfarmers. Given the extent of the searches undertaken by Ms Kenyon, and the demonstrated lack of involvement at the Wesfarmers level in decisions pertaining to the 2014 Agreement, we consider that the possibility that there might be relevant documents held somewhere in Wesfarmers is merely a theoretical and not a realistic one. Ms Vickers contended, as we understand it, that Wesfarmers’ consideration of the “whistleblower’s report” that she said she lodged with Wesfarmers on 8 October 2015 might have resulted in the generation of documents concerning the 2014 Agreement. That is possible, although we know nothing about the contents of the alleged “whistleblower’s report” which would cause us to conclude that this was likely to have happened. But Ms Vickers left entirely unexplained how the “whistleblower’s report” could have led to the generation of any documents in the four categories identified in either the 3 July application or the 15 July application. The document there described must, it appears to us, necessarily be contemporaneous with decisions to enter into and apply for the approval of the 2014 Agreement. They were events which occurred prior to 31 July 2015.

[36] We are not satisfied that there is any realistic possibility that Wesfarmers has any documents to produce if we made any order directed to it as proposed either in the 3 July application or the 15 July application. We therefore decline to exercise our discretion in favour of making the orders sought by Ms Vickers in respect of Wesfarmers.

[37] Insofar as Ms Vickers also sought orders for production directed to the “controlled entities” of Wesfarmers other than Coles, we likewise decline to make any such orders. On the evidence, there is no basis to conclude that any entity outside of Coles had any involvement in the making or the application for approval of the 2014 Agreement. Ms Kenyon’s evidence was that there was no realistic possibility that any controlled entity outside the Coles division of the Wesfarmers Group held any document in the categories identified in Ms Vickers’ application. We accept this evidence. Nor is there anything in the evidence to suggest that, even within the Coles division, any subsidiary would hold documents in the categories sought.

[38] Coles, as earlier noted, was prepared to consent to the issue of the order for production sought against it in the 3 July application, but contended that it had no further documents to produce in addition to those produced in response to the 9 June order. We accept that the evidence before us tends to bear that out. The only additional documents sought in the 3 July application were “legal advice and financial advice ... associated with the application to sanction the [2014 Agreement]”. Mr Brewster made it clear that there was no such legal advice, nor was there any modelling undertaken in relation to whether the 2014 Agreement passed the BOOT. However, for more abundant caution and to leave it beyond doubt that all the documents sought will be produced, we will issue an order for production of the documents specified in the 3 July application. In respect of legal advice, we will deal with any claim of legal professional privilege if and when it is made.

[39] The 3 July application also contained an additional proposed requirement that Coles provide a list of the documents identified, including documents no longer in Coles’ possession or control, verified by affidavit. The proposed requirement is in the nature of an order for general discovery, and is not appropriate to be included in an order for production made under s.590(2)(c). We will instead require Coles to file an affidavit made by an authorised officer affirming that all documents required to be produced under the 9 June order and the order we will issue in conjunction with this decision have been produced. This requirement will also, we consider, adequately dispose of Ms Vickers’ application to have Mr Yoannidis, Mr Durkan and Mr Goyder give evidence concerning the production of documents prior to the hearing.

[40] We will not issue the order sought in the 15 July application. In relation to the first three paragraphs of the schedule to the proposed order, we think the removal of the reference to Mr Yoannidis creates uncertainty as to what is required to be produced. It is also pointless, because it is quite clear from the evidence that Mr Yoannidis was responsible for the preparation and making of the application to approve the 2014 Agreement and the accompanying statutory declaration, so that the proposed order would not result in any documents being produced additional to those already produced. In relation to the fourth paragraph, the proposed requirement to produce documents concerning the provision of undertakings given to the Commission in connection with the proceedings for the approval of the 2014 Agreement has no apparent relevance to Ms Vickers’ case that Coles provided misleading information to the Commission which caused the 2014 Agreement, initially, to be approved. The proposed additional subparagraphs (c) and (d) are too broadly and vaguely expressed, do not identify with any specificity the documents required to be produced in a manner which permits proper compliance, and amount to a fishing expedition.

Conclusion and orders

[41] We issue the order for production attached to this decision. We direct that, on or before 5.00pm on 24 August 2017, an authorised officer of Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited shall file in the Commission and serve on Ms Vickers an affidavit verifying compliance with the attached order for production and the order for production issued on 9 June 2017.

VICE PRESIDENT

Appearances:

P Vickers on her own behalf with Dr A Truslove.
M Felman of Counsel and C Gardner on behalf of Coles Supermarkets Australia Pty Ltd and Wesfarmers Limited.

2017.
Sydney:
17 July.

Final written submissions:

Submissions of Penelope Vickers, 24 July 2017.
Submissions of Coles Supermarkets Australia Pty Ltd and Wesfarmers Limited, 31 July 2017.

Form F52 Order Requiring Production of Documents etc. to the Fair Work Commission

Fair Work Act 2009, s.590(2)(c)
Fair Work Commission Rules 2013, Rule 54

FAIR WORK COMMISSION

Commission Matter No.: AG2016/3797

Applicant: Penelope Vickers

Respondent(s):

Coles Supermarkets Australia Pty Ltd and another
First Respondents (Coles)

The Shop, Distributive and Allied Employees Association
Second Respondent (SDA)

The Australian Workers’ Union
Third Respondent (AWU)

The Australasian Meat Industry Employees Union
Fourth Respondent (AMIEU)

TO:

Coles Supermarkets Australia Pty Ltd ABN 45 004 189 708 and Bi-Lo Pty Limited ABN 75 002 805 094)

C/- Chris Gardner, Partner
Seyfarth Shaw Australia
Level 27, 55 Collins Street
Melbourne Vic 3000

Pursuant to s.590(2) of the Fair Work Act 2009 you are ORDERED to provide to the Fair Work Commission the documents, records and other information specified in the Schedule to this order before the Fair Work Commission at the following time, date and place:

Time:	4.00pm
Date:	Wednesday 23 August 2017
Place:	Fair Work Commission 111 Exhibition Street Melbourne Vic 2000

Dated: 17 August 2017

VICE PRESIDENT

Note:

• This order has been issued at the request of the Applicant
• Instead of attending to provide the documents etc. covered by this order at the time and place specified above, you may produce them to an officer of the Commission at the place specified above not later than 4.00 pm on the day before the day mentioned above.
• If you have any queries in relation to this order please contact the associate to Vice President Hatcher on 02 9308 1812.

SCHEDULE

All documents (including but not limited to communication, reports, and financial statements, including all legal advice and financial advice (Documents) associated with the application to sanction the Coles Store Team Enterprise Agreement 2014- 2017 (2014 Agreement) that fall within any of the following categories:

1. The Documents relating to the authorisation given to Mr Angelo Yoannidis to sign and file the Application dated 18 May 2015 and the Statutory Declaration declared by him on 18 May 2015 in relation to the application for the approval of the 2014 Agreement.

2. The Documents used or relied upon by Mr Angelo Yoannidis to assist or form his belief as to the truth and accuracy of the Statutory Declaration declared by him on 18 May 2015, and in particular with respect to the answer to question “3.6 Do you think the agreement passes the better off overall test?”.

3. The Documents relied upon by Mr Angelo Yoannidis to select the sample indicative rosters forming part of the said Statutory Declaration declared on18 May 2015.

4. In relation to the decision to file the application with the Commission for approval of the 2014 Agreement

(a) All Documents relied upon by any board of directors or any divisional board of directors or a steering committee, including the Audit and Risk Committee, within Coles Supermarkets Australia Pty Ltd or Bi-Lo Pty Ltd.

(b) All Documents recording or concerning the financial impact of the proposed EBAs showing the recommendation and/or decision of the board of directors or any divisional board of directors or a steering committee, including the Audit and Risk Committee, within Coles Supermarkets Australia Pty Ltd or Bi-Lo Pty Ltd.

 1  [2017] FWCFB 3131

 2   Ibid at [14]

 3   [1938] HCA 34; 60 CLR 336; 12 ALJR 100; (1938) ALR 334

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