Application by Vickers
[2017] FWCFB 3999
•28 JULY 2017
[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
(AG2016/3797)
VICE PRESIDENT HATCHER | 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 Coles’ lawyers about “discrepancies he had identified” to which he had not received a response until 19 July 2017. She also stated that because there was an outstanding interlocutory issue concerning the production of documents that was yet to be determined by the Full Bench, she was unable to prepare her outline of submissions.
[5] In response to this correspondence, a directions hearing before the presiding member of this Full Bench was conducted on 28 July 2017. That directions hearing was attended by Ms Vickers, Coles, the SDA, the AWU and the Australasian Meat Industry Employees’ Union. Mr Josh Cullinan, who represents two individual Coles employees who support Ms Vickers’ application, was notified of the hearing but did not attend.
[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.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code A, AE888094, PR594970>
AMENDED DIRECTIONS |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
(AG2016/3797)
VICE PRESIDENT HATCHER | SYDNEY, 28 JULY 2017 |
The Commission makes the following directions:
1. The Applicant, and any other party supporting the Applicant’s application, shall file in the Commission and serve on the other parties an outline of submissions and any witness statements and other documentary material on which the Applicant/party seeks to rely by 5.00pm Thursday 31 August 2017.
2. 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 by 5.00pm 19 October 2017.
3. The matter will be the subject of a further directions hearing before Vice President Hatcher at 9.00am on 26 October 2017 (location to be advised).
4. The matter will be listed for hearing before the Full Bench from 6 - 10 November 2017, 20 – 24 November 2017 and 4 – 8 December 2017 in Brisbane (video-links available on request).
5. Liberty to apply to vary these directions is granted.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code C>
1 [2017] FWC 2609
2 [2017] FWCFB 3131
2
0