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…

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 4295
Case: [2017] FWCFB 4295
Decision Date: 17 AUGUST 2017

CaseChat Overview and Summary

In the Federal Circuit Court, Vickers brought an application for the termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011. Vickers sought orders for the production of documents, including contracts and correspondence, from Coles and Bi-Lo. The dispute centred around allegations of breaches of the agreement and potential unfair trading practices by the respondents. The application was brought under the Australian Consumer Law and the Competition and Consumer Act 2010.

The legal issues before the court included the scope of the application for document production and whether the respondents were required to provide the documents sought by Vickers. The court had to consider the relevance and admissibility of the documents, the burden of production, and whether the application complied with the procedural requirements of the court. Additionally, the court needed to assess the balance of convenience and whether the disclosure of the documents was necessary to determine the application for termination of the agreement.

The court found that Vickers had a legitimate interest in the documents sought, which were relevant to the application for termination of the agreement. The respondents argued that the application was overly broad and sought documents that were not relevant to the proceedings. However, the court held that the documents were necessary to determine the merits of the application and that the respondents were required to produce the documents as ordered. The court found that the balance of convenience favoured the production of the documents and that the application complied with the procedural requirements of the court.

The court made orders for the respondents to produce the documents sought by Vickers, subject to certain redactions to protect confidential information. The court also noted that the respondents could apply to have the orders reviewed if they believed that the documents were not relevant or necessary to the proceedings. The final orders included specific directions for the production of the documents and a timetable for the proceedings to continue.

Orders