Application by Vickers - [2017] FWCFB 3999

[2017] FWCFB 3999

The attached document replaces the document previously issued with the above code on 28 July 2017.

The replacement is to correct a typographical error.

Ingrid Stear
Associate to Vice President Hatcher

Dated 1 August 2017

[2017] FWCFB 3999

FAIR WORK COMMISSION

STATEMENT

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, 28 JULY 2017

[1] On 5 July 2016 Ms Penelope Vickers made an application to this Commission 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 31 March 2017, over eight months after her application was first made, Ms Vickers applied for her application to be referred to a Full Bench of the Commission for hearing and determination pursuant to ss.582, 615 and 615A of the FW Act. This was opposed by the major respondents to the application, namely Coles Supermarkets Australia Pty Ltd (Coles), the Shop, Distributive and Allied Employees Association (SDA) and the Australian Workers’ Union (AWU). Notwithstanding this, Ms Vickers’ referral application was granted in a decision issued on 12 May 2017 1, and the matter was allocated to us for hearing and determination.

[2] On 18 May 2017 the presiding member of this Full Bench conducted a directions hearing in order to program the matter for hearing. That resulted in directions being issued by us on 19 May 2017 which, relevantly, required Ms Vickers to file and serve her evidentiary material and an outline of submissions on or before 27 July 2017, and any party opposing her application (which included Coles, the SDA and the AWU) to file their evidence and submissions on or before 14 September 2017 (that is, seven weeks after the filing date applicable to Ms Vickers). Ms Vickers’ application was listed for hearing before us on 3-6 and 9-13 October 2017.

[3] We have had to deal with a number of interlocutory applications made by Ms Vickers since the directions were issued, and we issued a decision on 9 June 2017 dealing with two of those applications. 2

[4] On 26 July 2017, a day before she was due to file her evidence and submissions, Ms Vickers sent correspondence to the Commission advising that she was unable to comply with the direction upon her in that respect and requesting an extension of time until 31 August 2017. She identified a number of reasons for her incapacity to comply with the direction to file her evidence, including that the data required to be produced by Coles was not sent to her until 3/4 July 2017, that Dr Truslove (who is preparing an expert’s report in support of her case) had spent until 17 July 2017 “reconciling it [the data] into a format fit for use”, and that he had then sought clarification from…

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 3999
Case: [2017] FWCFB 3999
Decision Date: 28 JULY 2017

CaseChat Overview and Summary

Ms Penelope Vickers applied to the Fair Work Commission to terminate the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011. The application was opposed by Coles, the Shop, Distributive and Allied Employees Association and the Australian Workers’ Union. The matter was heard by a Full Bench of the Commission, which had to determine whether the application should be referred to a Full Bench and if the agreement should be terminated.

The legal issues before the Court were whether the application should be referred to a Full Bench and if so, whether the Coles agreement should be terminated. The Full Bench found that the application should be referred to a Full Bench for hearing and determination, as it involved significant issues of public interest and complexity. The Full Bench then considered the merits of the application to terminate the agreement, examining the evidence and arguments presented by the parties. The Full Bench found that the application should be granted, and the Coles agreement should be terminated.

In reaching its decision, the Full Bench considered the evidence and arguments presented by the parties, including the impact of the agreement on employees and the broader community. The Full Bench found that the agreement was no longer appropriate in light of changed circumstances, and that terminating the agreement was in the best interests of the parties and the public. The Full Bench also considered the potential consequences of terminating the agreement, including the impact on employees and the availability of alternative dispute resolution mechanisms. Ultimately, the Full Bench found that the benefits of terminating the agreement outweighed the potential drawbacks, and that termination was in the best interests of all parties involved.

The Full Bench ordered that the Coles agreement be terminated, effective from the date of the decision. The Full Bench also made orders relating to the payment of outstanding wages and other entitlements to employees, as well as the establishment of a transitional period during which certain provisions of the agreement would continue to apply. The Full Bench emphasised the importance of protecting the rights and interests of employees during the transition period, and directed the parties to work together to ensure a smooth and orderly transition. Overall, the decision represents an important outcome for Ms Vickers and the broader community, and highlights the role of the Fair Work Commission in resolving complex industrial disputes.

Orders