Coles Group Supply Chain Pty Ltd

[2019] FWCA 1965

[2019] FWCA 1965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Applications for approval of single-enterprise agreements

Coles Group Supply Chain Pty Ltd
(AG2018/4874 and AG2018/4945)

Storage services
VICE PRESIDENT HATCHER	SYDNEY, 18 APRIL 2019

Applications for approval of the Coles Queensland (Forest Lake and Heathwood) Distribution Centre Enterprise Agreement 2018 and the Coles Eastern Creek (NUW) National Distribution Centre Enterprise Agreement 2018

Introduction

[1] Coles Group Supply Chain Pty Ltd (Coles) has lodged applications for the approval of two enterprise agreements pursuant to s 185 of the Fair Work Act 2009 (FW Act): the Coles Queensland (Forest Lake and Heathwood) Distribution Centre Enterprise Agreement 2018 (Qld Agreement) and the Coles Eastern Creek (NUW) National Distribution Centre Enterprise Agreement 2018 (NSW Agreement). The Qld Agreement covers employees at three Coles distribution centres in Brisbane which are adjacent to each other: Forest Lake, Heathwood Grocery and Heathwood Liquor. The NSW Agreement covers employees at Coles’ Eastern Creek National Distribution Centre (NDC) in Sydney.

[2] The application for approval of the Qld Agreement was accompanied by a Form F17 statutory declaration made by Nicole Jan Dodimead, People and Culture Manager, dated 31 August 2018. The application for approval of the NSW Agreement was accompanied by a Form F17 statutory declaration made by Sam Thornell, Distribution Centre Manager, which was also dated 31 August 2018

[3] The National Union of Workers’ (NUW) was a bargaining representative in respect of each agreement. Initially the NUW supported the approval of each agreement. In respect of the Qld Agreement, the NUW filed a Form F18 statutory declaration made by Godfrey Moase, Assistant General Branch Secretary, on 3 September 2018 which relevantly stated that the NUW supported the agreement’s approval and gave notice pursuant to s 183 of the FW Act that it wished to be covered by the agreement. A Form F18 statutory declaration to similar effect was made on 24 August 2018 in relation to the NSW Agreement by Sharon Morris, the President of the NUW’s NSW Branch.

[4] However the position of the NUW subsequently changed. In relation to the Qld Agreement, the NUW filed a second F18 statutory declaration made by Mr Moase on 22 October 2018 which indicated that the NUW now opposed the approval of the agreement. On 24 October 2018 an F18 statutory declaration made by Bruno Mendoca, Assistant Branch Secretary, was filed which indicated opposition to the approval of the NSW Agreement also.

[5] The Shop, Distributive and Allied Employees’ Association (SDAEA) was a bargaining representative for the Qld Agreement. On 31 August 2018 the SDAEA filed a statutory declaration made by Gerard Dwyer, its National Secretary, which stated that the SDAEA supported the approval of the Qld Agreement and gave notice that it wished to be covered by it. The SDAEA’s position in this respect did not subsequently change.

[6] The NUW’s reversal of position with respect to both agreements arose from an announcement made on 5 October 2018 by Coles’ then parent company, Wesfarmers Limited (Wesfarmers), 1 that it had entered into a heads of agreement for development of two new “automated ambient distribution centres” in Brisbane and Sydney over a five year period, and that provision would be made for redundancies at “a number of existing distribution centres that will be closed over a five year period”. The distribution centres to be closed included those at Forest Lake and Heathwood and the NDC. This announcement made public a business project, known as “Project Broccoli”, which Coles had been pursuing for some time. This caused the NUW to contend that the Qld Agreement and the NSW Agreement were not genuinely agreed to by the employees covered by them in accordance with that element of the “genuinely agreed” definition in s 188(1)(c) of the FW Act. This contention was based on the propositions that Coles had misrepresented to employees that their employment was secure, and had failed to inform them of Project Broccoli, whilst bargaining was proceeding in circumstances where the NUW had been claiming improved redundancy entitlements.

[7] Because the NUW’s ground of opposition to the approval of the two agreements was based on a substratum of facts that was to a significant degree common to both, and involved common submissions concerning the application of s 188(1)(c) to the applications, both applications were the subject of a common hearing and will be dealt with together in this decision. Before I turn to the NUW’s case in that respect, I will deal with the other issues which arose concerning the approval requirements in ss 186 and 187 of the FW Act. As explained below, these issues were resolved either with the benefit of further submission from Coles or by the provision of undertakings, and ultimately became non-controversial in the proceedings.

Qld Agreement - other approval requirement issues

[8] With respect to the QLD Agreement, on 24 December 2018 I caused to be issued a letter to Coles identifying five issues and concerns as to whether the Qld Agreement met the approval requirements in ss 186 and 187 (apart from the issue raised by the NUW). They were, in the terms communicated to Coles, as follows:

(1) Clause 24.2 of the Qld Agreement provides that ordinary hours are 40 per week for full-time team members, presumably for the purpose of accruing a rostered day off over the roster cycle provided for in cl 24.1. The wage rates in cl 12 are expressed in weekly terms only and not hourly terms. It is not clear whether the divisor for the purpose of calculating hourly rates is 40, 38 or some other number (noting that casuals may not work more than 36 hours per week under cl 7.3 and part-time employees may not work more than 32 hours per week under cl 7.8). That means that a determinative assessment as to whether employees are better off overall under the Agreement (having regard to its lower shift allowances and weekend and overtime penalty rates and wider span of hours) cannot be carried out, since overtime rates, other penalty rates, casual rates and part-time rates cannot be calculated. In respect of overtime, it is also unclear whether overtime is payable after 32, 36, 38 or 40 hours per week.

(2) Annual leave in clause 31 is not expressed as accruing progressively and may therefore be inconsistent with s 87(2) of the Fair Work Act 2009 (FW Act). In this respect, the provision may exclude the NES contrary to s 55(1) of the FW Act.

(3) Clause 24.14 of the Agreement provides that part-time employees are required to work in accordance with a roster specifying the commencing and finishing times on each day of the week. Clause 11.3(c) of the Storage Services and Wholesale Award 2010 (SSW Award) requires that the hours of work of a part-time employee, including actual starting and finishing times each day, be agreed in writing at the time of engagement, and clause 11.4(d) provides that any agreed variation to the regular pattern of work will be recorded in writing. A part-time employee under the Agreement may not be better off overall compared to the SSW Award because the employee’s hours may be altered in an unpredictable way by unilateral decision of the employer.

(4) Clause 24.22 of the Agreement allows a part-time employee to agree to work hours additional to their agreed ordinary hours at the casual rate. Under cl 11.3(f) of the SSW Award, all hours worked in addition to the mutually arranged hours of work (which, under cl 11.3(d) may be varied by written agreement) are to be paid at overtime penalty rates. Consequently part-time employees who work additional hours may not be better off overall under the Agreement as compared to the SSW Award.

(5) The severance pay entitlement in Schedule B.3(d)(i) is three weeks’ pay per completed year of service, calculated pro-rata for each month of service. Under s 119 of the FW Act, a retrenched employee who has completed at least 1 year but less than 2 years’ service is entitled to 4 weeks’ redundancy pay. Schedule B.3(d)(i) may exclude the NES to this extent contrary to s 55(1) of the FW Act.

[9] Coles responded to the above issues and concerns in correspondence dated 11 January 2019. In respect of the first issue, Coles’ response in full was as follows:

“To assist the Commission undertake the required calculations to assess compliance with the better off overall test (BOOT), please note the following:

Divisor

To determine the hourly rate of pay for each team member classification covered by the Agreement, divide the weekly rates of pay specified in clause 12 of the Agreement, by 38. For your information, the Agreement has historically always reflected its specified rates of pay in weekly, not hourly terms. This has long been the established and accepted practice.

The use of 38 as the divisor is evidenced within the Agreement in a number of clauses.

A full-time team member, as defined in clause 7.7 of the Agreement, is specified as a team member "engaged on a weekly basis to work 152 ordinary time hours over a 4 week cycle." This represents on an average weekly basis, a full-time team member working 38 ordinary hours per week (calculation: 152/4 = 38).

A full-time team member who works in accordance with a Rostered Day Off (RDO), arrangement as prescribed in clause 25 of the Agreement, is paid pursuant to clause

25.1 of the Agreement at an hourly rate "derived by taking 1/38th of the all-purpose weekly wage".

A part-time team member's hourly rate of pay, as prescribed by clause 24.18 of the

Agreement is calculated by "dividing the appropriate weekly wage by 38".

A casual team member's hourly rate of pay, as prescribed by clause 24.28 of the Agreement is calculated by dividing the appropriate weekly rate by thirty-eight (38), and then adding to that hourly rate either a 25% casual loading or applicable shift loading (where it is higher).

Whilst the number 38 is the divisor to determine hourly rates, the Agreement also sets out a number of terms prescribing numbers which form the foundation of the sites' rostering arrangements. These terms are primarily found within clause 24 (Rostering Principles) and clause 25 (RDO Guidelines) in the Agreement. These terms do not define the divisors, but rather are distinguishable from those terms in the Agreement identified above that do define the use of 38 as the divisor.

For example, the monthly (4-week cycle), weekly (40) and daily (8) ordinary working hours maximum limits for full-time team members are set out in clauses 24.1 and 24.2 of the Agreement.

Clause 24.1 of the Agreement states:

"The ordinary working hours for all team members shall be worked in accordance with an agreed roster which shall provide for not more than nineteen (19) working days or one hundred and fifty-two (152) hours per four (4) week cycle of twenty (20) working days"

Clause 24.2 of the Agreement states:

"The ordinary weekly working hours shall not exceed forty (40) hours per week or eight (8) hours per day and shall be worked continuously except for a meal break of not less than 30 minutes or more than one hour"

Clauses 24.1 and 24.2 facilitate a team member that works 8 hours per day or 40 hours per week meeting their monthly (152 hours) limit sooner than if that same team member had worked 7.6 hours per day or 38 hours per week.

Pursuant to clause 25.2 of the Agreement, a RDO arrangement is facilitated by permitting a full-time team member to work 40 ordinary hours per week on the basis that twenty-four (24) minutes of each day worked shall accrue as an entitlement to take the agreed rostered day in each cycle as a day off, with pay. Accordingly, the weekly 40 ordinary hours' provision permits work to be performed by a team member on 19 days but the payment they receive is equal to 20 days by virtue of the fact that 24 minutes is accrued per day.

A further example relates to clause 7.8 of the Agreement that provides a part-time team member with the ability to perform work "for not less than 12 ordinary hours per week and not more than 32 ordinary time hours per week".

Clause 7.8 of the Agreement simply sets the minimum and maximum weekly ordinary working hours that can be agreed with a part-time team member to form their contracted hours of work per week. Once again, neither 12 nor 32 are intended to act as the divisor by which to determine the hourly rate of pay. This conclusion is supported further by clause 24.19 of the Agreement that states that in the case of a part-time team member, "In no case will payment be no less than twelve (12) hours per week and not more than thirty-two (32) hours per week".

Finally, clause 7.3 of the Agreement provides that a casual team member cannot be engaged "for not more than 36 ordinary hours in any one week". This term sets a casual team member's maximum weekly ordinary hours. It does not act as the divisor for determining the casual team member's hourly rate of pay, but rather as previously referenced, this is achieved by clause 24.28 of the Agreement.

Overtime

To clarify when overtime is payable under the Agreement, I have set out the following:

Full-time team members

Clause No.	Term
26.2	Outside the time specified in clause 22 of the Agreement, that is work performed between Monday to Sunday 6:00pm to 5:00am.
26.2	In excess of the ordinary weekly working hours.
26.5 (iii)	In excess of their contracted hours.
24.24 and 26.2	Outside the hours specified in the team members roster including commencing and ceasing times in accordance with their roster.
26.1 (a) and 26.5	Working on a non-rostered day (ROO).
26.1 (a) and 26.5	Working on a non-working day.
24.5 and 24.7	Where a 10-hour break is not provided between the conclusion of one engagement (inclusive of overtime) and the commencement of the next engagement until such time that a 1 0-hour break is provided.
26.5 (ii)	Upon termination, in excess of 38 hours per week where the appropriate roster cycle has not been completed.

Part-time team members:

Clause No.

Term

26.2 (ii)

In excess of 8 hours on any day.

26.2 (ii)

In excess of 38 hours in any week.

26.2

In excess of the ordinary weekly working hours.

26.5 (iii) and

24.14

In excess of their contracted hours, with the exception of up to a maximum of 38 hours if a flex up arrangement is in place.

26.2

Outside the time specified in clause 22.1 of the Agreement, that is work performed between Monday to Sunday 6:00pm to 5:00am.

24.24, 26.2 and

24.1 4

Outside the hours specified in the team members roster including commencing and ceasing times in accordance with their roster unless a flex up arrangement has been agreed.

26.1 (a) and 26.5

Working on a non-rostered day (ROO).

26.1 (a)

Working on a non-working day.

24.5 and 24.7

Where a 10-hour break is not provided between the conclusion of one engagement (inclusive of overtime) and the commencement of the next engagement until such time that a 10-hour break is provided.

26.5 (ii)

Upon termination, in excess of 38 hours per week where the appropriate roster cycle has not been completed.

For casual team members:

Clause No.

Term

26.2 (i)

In excess of 8 hours on any day.

26.2 (i)

In excess of 36 hours in any week.

26.2(i)

In excess of 5 consecutive days (unless by agreement the team

member is willing to work 6 consecutive days)

26.2(i)

In excess of 6 consecutive days (where the team member has not

agreed to work 6 consecutive days)

26.2

Outside the time specified in clause 22.1 in the Agreement, that is work performed between Monday and Sunday 6:00pm to 5:00am

[10] On the basis of the explanation provided by Coles, I am now satisfied that the Qld Agreement does permit overtime rates, other penalty rates, casual rates and part-time rates to be calculated and does specify when overtime is payable, and thereby permits the agreement to be properly assessed for the purpose of the better off overall test (BOOT) approval requirement contained in s 186(2)(d) and explicated in s 193.

Issue 2

[11] Coles proposed the following undertaking:

“Annual leave in clause 31 of the Agreement accrues progressively during each year of service consistent with section 87(2) of the Fair Work Act 2009 (FW Act).”

[12] The above undertaking would resolve my concern.

Issue 3

[13] In respect of the third issue, Coles provided the following response:

“We acknowledge that clause 24.14 in the Agreement is different to the Services and Wholesale Award 2010 (SSW Award), but should not be considered detrimental. Clause 24.14 of the Agreement provides that part-time employees are required to work in accordance with a roster specifying the commencing and finishing times on each day of the week. The roster referenced in clause 24.14 of the Agreement relates to part­ time team members as defined in clause 7.8 of the Agreement.

Under clause 7.8, a part-time team member is engaged as such and works a contracted number of hours. The reference to "contracted" by its very nature means a formal and legally binding agreement. The effect of clause 7.8 of the Agreement. whilst expressed differently contemplates and achieves the purpose of clause 11.3(c) of the SSW Award requiring that the contracted number of hours of work of a part-time employee, including actual starting and finishing times each day, be agreed in writing at the time of engagement. This reflects the site practice consistent with clause 7.8 of the Agreement.

The site also evidences in writing agreed variations to the regular pattern of work, in compliance with clause 11.4(d) of the SSW Award.

However, acknowledging that the Agreement could express more clearly mutual agreement requirements for part-time members, and to alleviate any concern the Commission may still hold, please see attached s.190 undertaking for your consideration.”

[14] Coles proposed the following undertaking:

“Consistent with clauses 11.3(c) and 11.4(d) of the Storage Services and Wholesale Award 2010 (SSW Award), the hours of work of a part-time employee, including actual starting and finishing times each day, will be agreed in writing at the time of engagement, and any agreed variation (whether it be ad hoc, a one off variation or permanent), to a part-time employee's regular pattern of work will be recorded in writing. For the avoidance of doubt, a part-time team member's contracted hours of work may be not be altered unilaterally by the employer.”

[15] I am satisfied that the above undertaking would resolve my concern.

Issue 4

[16] Coles proposed the following undertaking:

“A part-time employee may be offered and voluntarily accept to work additional hours(what is commonly known at the sites as 'flex up'), and be paid for those additional hours worked on each occasion pursuant to clause 24.22 and clause 26.2(i) (where overtime is applicable) of the Agreement. The part-time employee will be paid pursuant to the Agreement for additional hours worked, provided on each occasion the casual rate (and any applicable overtime payments) prescribed in the Agreement compensates the part­ time team member more favourably or at least equal to the equivalent payment the part­ time team member would have otherwise received under clause 11.3(d) of the SSW Award. On any occasion a part-time employee's agreed additional hours will not satisfy clause 11.3(d) of the SSW Award, the part-time employee's additional hours will be capped to a maximum amount of additional hours on each occasion or alternatively the part-time employee will receive the relevant overtime penalty rates pursuant to clause 11.3(d) of the SSW Award.”

[17] The above undertaking would resolve my concern.

Issue 5

[18] Coles proposed the following undertaking:

“The severance pay entitlement in Schedule B.3(d)(i) of the Agreement that refers to three (3) weeks' pay per completed year of service, calculated pro-rata for each month of service does not apply to a retrenched employee who has completed at least 1 year but less than 2 years' service. If a retrenched employee has completed at least 1 year but less than 2 years' service, the employee will be entitled to four (4) weeks' severance pay consistent with section 119 of the FW Act. For all other years of service, the severance pay calculation is based on three (3) weeks' pay per completed year of service pursuant to Schedule B.3(d)(i) of the Agreement.”

[19] The above undertaking would resolve my concern.

NSW Agreement

[20] On 24 December 2018, I caused correspondence to be issued to Coles identifying a number of issues and concerns as to whether the NSW Agreement met the approval requirements in ss 186 and 187. They were, in the terms communicated to Coles, as follows:

(1) Despite the answer given at Q2.9 of the Form F17 statutory declaration of Mr Thornell, the application was lodged on 5 September 2018, more than 14 days after the Agreement was made on 17 August 2018. An extension of time is therefore required under s 185(3)(b) of the Fair Work Act 2009 (FW Act). It is necessary for the Commission to be provided with details of the circumstances the Commission should take into account in deciding if it is fair to extend the time for lodging the application.

(2) Section 196 of the Fair Work Act 2009 (FW Act) requires the Commission to be satisfied that when an employee covered by the Agreement is covered by a modern award that defines or describes the employee as a shiftworker for the purposes of the NES, the Agreement also defines or describes the employee as a shiftworker for the purposes of the NES. Clause 26.4 of the Storage Services and Wholesale Award 2010 (SSW Award) contains a definition of shiftworker for the purpose of the NES. That definition appears to be potentially applicable to some employees covered by the Agreement. However there is no corresponding definition of shiftworker in the Agreement.

(3) Clause 7 of the Agreement, which deals with Introduction of change and consultation, does not expressly apply to change to employees’ regular rosters or ordinary hours of work, and therefore may not comply with s 205(1)(a)(ii) of the FW Act. Further, clause 7 does not require that employees be invited to give their views about the impact of changes covered by the clause, as required by s 205(1A)(b).

(4) Personal leave in clause 22.2 is not expressed as accruing progressively and may therefore be inconsistent with s 96(2) of the FW Act. Additionally, annual leave in cl 22.4 is not expressed as accruing progressively and may therefore be inconsistent with s 87(2) of the FW Act. In this respect, both provisions may exclude the NES contrary to s 55(1) of the FW Act.

(5) Clause 17.2.5 of the Agreement allows a part-time employee to agree to work hours additional to their agreed ordinary hours at ordinary rates plus the casual loading (up to 36 hours per week and 144 hours in a four-week cycle). Under cl 11.3(f) of the SSW Award, all hours worked in addition to the mutually arranged hours of work (which, under cl 11.3(d) may be varied by written agreement) are to be paid at overtime penalty rates. Consequently part-time employees who work additional hours may not be better off overall under the Agreement as compared to the SSW Award.

(6) Clause 18.8.6 of the Agreement provides for unused time of in lieu of overtime to be cashed out, but does not require that this be done at the overtime rate applicable to the time worked, unlike cl 24.3(f) of the SSW Award. This might result in employees who work overtime not being better off overall under the Agreement as compared to the SSW Award.

(7) Clause 30 of the SSW Award (as at the date the application was lodged) provided for family and domestic violence leave. The Agreement contains no provision for family and domestic violence leave. This may mean that any current or prospective employees who have been the victim of family and domestic violence may not be better off overall under the Agreement than under the SSW Award.

[21] The first matter raised was based on an error in the Commission’s records, and in fact the application for the approval of the Agreement was lodged within 14 days of the Agreement having been made. In respect of the other matters raised, Coles responded in correspondence dated 11 January 2019.

Issue 2

[22] Coles proposed the following undertaking:

“For the purpose of the additional week of annual leave provided for in the National Employment Standards (section 87(1)(b) of the Fair Work Act 2009), a shiftworker is a seven (7) day shiftworker who is regularly rostered to work on Sundays and public holidays.”

[23] The above undertaking would resolve my concern.

Issue 3

[24] I am satisfied by Coles’ response that the model consultation term provided by reg 2.09 of the Fair Work Regulations (FW Regulations) will operate pursuant to s 205(2) of the FW Act.

Issue 4

[25] Coles gave the following response:

“Clause 22.2.2 of the EA provides:

'...In their first year of employment, a full-time permanent team member shall accrue to a maximum 72 hours (10 days). A part-time or limited tenure team member shall accrue,in their first year of employment, at a pro-rata rate. In the second and subsequent years, the 72 hours (10 days) leave for full-time permanent team members shall be credited in advance on each anniversary date of the commencement of employment (pro-rata for part-time team members).'

The Applicant provides an undertaking to ensure compliance with section 96(2) of the Act in relation to a permanent team member's first year of employment. Given in subsequent years personal leave is credited in advance, these provisions are more generous than the accrual rate under the National Employment Standards. The undertaking therefore need not apply to subsequent years of service as the provisions are permissible terms that supplement the National Employment Standards within the meaning of subsection 55(4) of the Act.

In respect of the Commission's concern regarding clause 22.4.1 of the EA, the Applicant provides an undertaking to ensure compliance with section 87(2) of the Act.”

[26] The undertaking proposed by Coles is as follows:

“(a) a permanent team member's entitlement to personal leave will accrue progressively during their first year of employment according to the team member's ordinary hours of work.

(b) the entitlement to annual leave under clause 22.4.1 of the Agreement will accrue progressively during each year of service according to a team member's ordinary hours of work.”

[27] The above undertaking would resolve my concerns.

Issue 5

[28] Coles provided the following response:

“In accordance with clause 17.2.5 of the EA. the rates paid to team members working additional hours are as follows:

EA classification	EA hourly rate (ordinary rate plus casual loading)	Storage Services and Wholesale Award 2010 hourly overtime rates (calculated by reference to the minimum wage rate of pay for a full-time adult for the highest classification shown in the table at 3.3 of the Form F17
Team Member in Training	$34.93 *(undertaking to be provided as outlined below)	$30.71 for the first two (2) hours $40.94 for subsequent hours
Team Member	$43.53 *(exceeds highest overtime hourly rate)	$32.30 for the first (2) hours $43.06 for subsequent hours
Team Leader	$46.00 *(exceeds highest overtime hourly rate)	$33.24 for the first (2) hours $44.32 for subsequent hours

The Applicant will provide an undertaking in relation to clause 17.2.5 of the EA to ensure that the employees will be better off than under the Storage Services and Wholesale Award 2010 (Award), such that part-time team members engaged in the Team Member in Training classification may only agree to work additional hours at ordinary rates plus the casual loading in accordance with clause 17.2.5 of the EA up to a maximum of three (3) hours on each occasion the team member is rostered to work ordinary hours.”

[29] The undertaking given by Coles is as follows:

“…it will limit the application of clause 17.2.5 of the Agreement to ensure that a part-time team member engaged in the Team Member in Training classification does not work any more than three (3) additional hours on each shift the team member is rostered to work ordinary hours.”

[30] The above undertaking would resolve my concern.

Issue 6

[31] Coles responded to this concern by stating that it intended to ensure that TOIL cashed out in accordance with clause 18.8.6 of the Agreement is paid at the applicable overtime rates. The following undertaking was proposed to give effect to this:

“…it will apply clause 24.3(f) of the Storage Services and Wholesale Award 2010 ("the Award") (as at 10 January 2019) so that time off in lieu cashed out in accordance with clause 18.8.6 of the Agreement will be paid at the overtime rate applicable to the overtime as if worked.”

[32] The above undertaking would resolve my concern.

Issue 7

[33] Coles posited that an undertaking was not required in relation to this issue given that employees are now entitled to five days’ unpaid family and domestic violence leave per year in accordance with the NES. Nonetheless the following undertaking was proposed:

“…employees will be entitled to 5 days' unpaid family and domestic violence leave per year in accordance with clause 30 of the Award (as at 10 January 2019) as if it were a term of the Agreement.”

[34] As at the “test time” (the date of the lodgement of the application for approval of the NSW Agreement), the entitlement to five days’ unpaid family and domestic violence leave was not yet a NES entitlement under the FW Act, so an undertaking is necessary to address my concern. The proposed undertaking would resolve my concern.

Issue in contest: whether “genuinely agreed” – s 186(2)(a) and s 188(1)(c)

[35] As earlier explained, the sole issue in contest is whether the Qld Agreement and the NSW Agreement satisfy the approval requirement in s 186(2)(a) of the FW Act that they must have been “genuinely agreed to by the employees covered by the agreement”. Section 188 defines when employees have genuinely agreed to an enterprise agreement as follows:

188 When employees have genuinely agreed to an enterprise agreement

(1)  An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a)  the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i)  subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii)  subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b)  the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c)  there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

(2)  An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a)  the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b)  the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.

[36] It was not in dispute that those elements of the definition in s 188(1)(a) and (b) were satisfied (and accordingly s 188(2) is not relevant to the applications). However, as earlier stated, the NUW submitted that the Commission could not be satisfied as to s 188(1)(c).

[37] The key principles concerning the interpretation and application of s 188(1)(c) (then s 188(c)) were stated in the Federal Court Full Court decision in One Key Workforce Pty Ltd v CFMEU. 2 The Full Court said:

“[141] Turning then to the language utilised in ss 186(2)(a) and 188(c), the word “genuinely” in the phrase “genuinely agreed”, indicates that mere agreement will not suffice and that consent of a higher quality is required. We reject OKW’s contention that the phrase is only directed at requiring an absence of fraud, coercion or duress in the process of employees providing their agreement. The word “agreed” on its own, suffices to achieve those ends. The word “genuinely” must be given some additional work to do. A court construing a statutory provision must strive to give meaning to every word of it: Project Blue Sky at [71]. The limits OKW seeks to put on para 188(c) are too narrow. The requirement for genuine agreement in the Fair Work Act prescribes some, but not all, factors that must be taken into account. In this respect, in contrast to its predecessor, s 170LT(6) of the Workplace Relations Act, paras 188(a) and (b) direct the Commission’s attention to a number of discrete matters. Paragraph 188(c), however, it is not at all prescriptive.

[142] Paragraph 188(c) is cast in very broad terms. It is intended to pick up anything not caught by paras (a) and (b). Thus, any circumstance which could logically bear on the question of whether the agreement of the relevant employees was genuine would be relevant. One obvious example is the provision of misleading information or an absence of full disclosure (see, for example, Re Toys “R” Us (Australia) Pty Limited Enterprise Flexibility Agreement 1994 (1995) 37 AILR 3-068 (Print L9066) (C No 23663 of 1994)). Another is the likelihood that the relevant employees understood the operation of the various awards that would be affected by the agreement and the extent to which the wages and working conditions for employees under each of those awards would change, for better or worse, under the terms of the agreement. Thus, if we be wrong to conclude that the Commission is bound by s 180(5) to consider the content of the employer’s explanation of the terms of the Agreement and their effect, in order to be satisfied that the Agreement was “genuinely agreed to” having regard to s 188(a)(i), then for similar reasons we would hold that this was a matter which was not only relevant to the question raised by para 188(c), but was a mandatory consideration.

[143] Furthermore, contrary to OKW’s submission, authenticity is not irrelevant to para 188(c). To the contrary, it goes to the heart of the matter. Recourse to a standard dictionary of the English language tells us that “authentic” is a synonym for “genuine”. The editor of the Oxford English Dictionary online notes that “[t]he distinction which the 18^th [century] apologists attempted to establish between genuine and authentic ... does not agree well with the etymology of the latter word, and is not now recognised”.

[38] The Full Court reference to “authenticity” in paragraph [143] of the above passage hearkens back to the earlier Federal Court Full Court decision in CFMEU v Australian Industrial Relations Commission 3 (Gordonstone), in which the Court said that the then s 170LT(6) of the Workplace Relations Act 1996 (which was the equivalent of the current s 186(2)(a)) “plainly betokens a concern with the authenticity and, as it were, the moral authority of the agreement”.

[39] The NUW contended that s 188(1)(c) could not be satisfied because:

● bargaining in relation to both sites commenced in or around April 2018, and a major claim advanced on behalf of workers was for improved redundancy provisions;

● securing fair and/or improved redundancy is often a key industrial claim in the warehousing/logistics industry, particularly so in an industry facing outsourcing and prospective job losses due to automation;

● the workers at both sites sought to improve their redundancy provisions to ensure their financial security in the case of their worksite closing down;

● Coles’ announcement on 5 October 2018, after employees had voted to approve the agreements in August 2018, was that it would close five of its warehouses including the Forest Lake/Heathwood site and the NDC, and replace them with two new, highly-automated distribution centres;

● there was material non-disclosure by Coles during bargaining for the two agreements, in that it knew of the impending closure of the Forest Lake/Heathwood sites and the NDC prior to the making of both agreements but deliberately failed to disclose this to employees;

● the result of this was that the employees did not give informed consent to the agreements;

● there were also statements made by Coles’ managers during bargaining that misrepresented the situation with respect to site closures and gave false assurances about employees’ job security; and

● Coles failed to exhibit trustworthiness throughout bargaining, meaning that there was a lack of authenticity and moral authority in respect of the two agreements.

[40] The NUW adduced evidence from the following persons, who all made witness statements and were subject to cross-examination by Coles:

● Gary Strauss, NUW organiser with the responsibility for members at the Heathwood distribution centre;

● Futi Anesone, picker and loader employed by Coles at the Heathwood distribution centre;

● Glen Crosbie, an employee of Coles at the Heathwood distribution centre;

● Sloan Rourke, an employee of Coles at the Heathwood distribution centre;

● Than Ly, an employee of Coles at the Heathwood distribution centre;

● Callum McColl, an employee of Coles at the Heathwood distribution centre;

● Ghazi Noshie, NUW Organiser with responsibility for NUW members at the NDC;

● John Kot, NUW union delegate and employee of Coles at the NDC; and

● Christopher Dundon, a Team Member employed by Coles at the NDC.

[41] Coles tendered witness statements made by the following persons:

● David Brewster, the Chief Legal Officer for Coles Group Limited (of which Coles is a subsidiary) and a director of Coles Supermarkets Australia Pty Ltd (a subsidiary of Coles Group Limited);

● Kara Bryant, Employee Relations Manager for Coles Supermarkets Australia Pty Ltd;

● Robert Rondinelli, Head of Employee Relations and Compliance for Coles Supermarkets Australia Pty Ltd;

● Sam Thornell, employed by Coles Supermarkets Australia Pty Ltd as Distribution Manager for the NDC;

● Joanna Hammond, employed by Coles Supermarkets Australia Pty Ltd as General Manager - Supply Chain – North Zone (i.e. NSW and Queensland); and

● Nicole Dodimead, employed by Coles Supermarkets Australia Pty Ltd as People and Culture Manager for the Forest Lake and Heathwood Distribution Centres.

[42] The above persons were required by the NUW to attend the hearing for cross-examination except for Mr Brewster and Mr Thornell.

Project Broccoli

[43] The progress of Project Broccoli was described in the witness statement of Mr Brewster and in a number of documents, and was not in factual sense the subject of any significant contest. Some of the contents of Mr Brewster’s statement are commercially sensitive and the subject of a confidentiality order, but it will not be necessary to refer to those parts of his evidence for the purpose of this decision.

[44] By way of background, the retail operations of Coles Group Limited (Coles Group) are supported by 20 distribution centres, which include the Forest Lake and Heathwood distribution centres and the NDC. The parent company of the Coles Group was previously Wesfarmers, but a demerger was announced in March 2018 and took effect in November 2018. The Coles Group operates in highly competitive and dynamic retail markets, and the retail industry has been significantly affected by the rapid take-up of online purchasing by customers. In this context, the Coles Group constantly reviews its operations, develops business plans and submits for board approval proposals for capital and operating expenditure. Prior to 2016 the Coles Group had developed advanced plans to automate parts of its supply chain, but these were ultimately rejected. A further proposal was considered in November 2016 but was also rejected.

[45] In October 2017 a new project commenced to evaluate the possible construction of automated distribution centres (also known as ambient technology centres) in New South Wales and Queensland. Key decisions were made by a group of Coles Group senior executives which included Mr Brewster. The project had three main streams: (1) the identification and engagement of an appropriate supplier for the supply and installation of two large-scale distribution centres; (2) the identification of appropriate sites and engagement with appropriate landlords and/or developers for the construction of two new warehouses; and (3) the preparation, review and ongoing management of the business case for the project and the negotiation of commercial arrangements with relevant counterparties.

[46] In relation to the first stream, in early 2018 the Coles Group commenced discussions with Witron Australia Pty Ltd (Witron) concerning the development of a commercial agreement for the supply and installation of equipment for the new automated distribution centres should they ultimately be approved at the board level. On 1 May 2018 the business case for the project was discussed at a Coles Divisional Board meeting. The minutes of that meeting do not disclose any decision to proceed with the new automated distribution centres, and suggest that alternative options remained under consideration. A draft Supply and Installation Agreement between Coles and Witron had been prepared by late June 2018, and negotiations between Coles and Witron concerning this agreement continued throughout July and August 2018.

[47] In early July 2018, the Coles Group engaged a project management specialist on a six-month contract to lead the three project streams earlier described. At this time, the project had a limited budget which was subject to further sign-off by the CFO. On 25 July 2018, a report concerning the project (now known as Project Broccoli) was presented at the Coles Divisional Board. Again, the minutes of the meeting do not disclose any positive decision to proceed with the new automated distribution centres, although support in-principle for the proposal being evaluated was recorded.

[48] In mid-August 2018 the Coles Group executives responsible for Project Broccoli decided that if there was a prospect of an agreement being reached by the end of the year, it would be preferable to try to expedite negotiations so that a public announcement could be made concerning what would be the largest capital investment the Coles Group had ever made before the date of the demerger. To that end, a Coles team met with Witron’s parent company in Germany from 28 to 31 August 2018. When the team returned from Germany, it became apparent that it would not be possible to negotiate final agreements with Witron and put them before the Coles Divisional Board and the Wesfarmers Board prior to the demerger. Accordingly the executives responsible for Project Broccoli decided to try to negotiate a heads of agreement with Witron, in which the parties would seek to negotiate final agreements by a drop dead date, with the objective of making an ASX announcement about this by 5 October 2018 (the date of the first court hearing concerning the demerger). However there remained some doubt whether this could be completed and approved by that date.

[49] The proposed heads of agreement was negotiated with Witron throughout September 2018 and, at the same time, there were discussions with three potential property developers who had submitted proposals for the sourcing of land for the new sites and leasing terms. On 14 September 2018 there was a Wesfarmers Board meeting. A report was made to the board concerning Project Broccoli, but the minutes do not disclose that any positive decision was made to proceed with the new automated distribution centres. On 19 September 2018 the Coles Group Divisional Board met and noted that negotiations on a heads of agreement with Witron were continuing.

[50] On 21 September 2018 an article appeared in the Courier Mail newspaper under the headline “Coles shops around for new hub” which stated that:

● Coles was seeking to consolidate its Brisbane distribution facilities under the one roof;

● it had a confidential requirement for an initial 50,000-60,000 square metre “automated distribution centre” on a 15-20 hectare greenfield site;

● if built, the “24/7 distribution centre” will eventually replace Coles’ Parkinson and Heathwood facilities; and

● Yatala and Redbank were the favoured sites.

[51] On 26 September 2018 the heads of agreement was finalised subject to board approvals and, at about the same time, a preferred developer for the two sites was selected and heads of agreement for the development and leasing of the two sites were executed. On 4 October 2018 the documents were put to the Coles Divisional Board and the Wesfarmers Board, and the Wesfarmers Board approved the entry into the heads of agreement that day (subject to a condition relating to court approval for the demerger which was satisfied the following day). The public announcement was made the same day (5 October 2018).

[52] A binding supply and installation agreement with Witron and leases for the development sites for the new automated distribution centres were announced to the ASX on 24 January 2019. The locations for the new centres were Redbank in Brisbane and Kemps Creek in Sydney.

[53] In his witness statement Mr Brewster said:

“…the precise effect and timing that Project Broccoli will have on jobs at the Eastern Creek National Distribution Centre and the Forest Lake and Heathwood Distribution Centre is still to be determined, given the facilities will not be operational for up to 5 years and the New Enterprise Agreements (if approved) will expire prior to that time. The likely impacts were even less certain prior to Coles entering into the HOA [the heads of agreement entered into on 4 October 2018].”

[54] In his oral evidence, Mr Rondinelli said that the anticipated timeframe for the opening of the new automated distribution centres and the closure of the existing distribution centres covered by the Qld Agreement and NSW Agreement remained some time in 2023, but he “assumed” that“ramping down” of the existing distribution centres would occur “towards the back end of 2022 or early stages of 2023”.

Bargaining for the Qld Agreement

[55] The Forest Lake, Heathwood Grocery and Heathwood Liquor distribution centres are currently covered by the Coles Queensland Distribution Centre’s Enterprise Agreement 2014 (2014 Agreement), which has a nominal expiry date of 5 August 2018. As at August 2018 there were 508 employees covered at the Forest Lake distribution centre and 204 employees covered at the two Heathwood distribution centres. It appears that at or about this time the NUW had about 200 members amongst the employees and the SDAEA probably had significantly more, with the NUW having the preponderance of membership at Heathwood and the SDAEA at Forest Lake.

[56] Coles initiated bargaining for a replacement agreement on 12 April 2018 by issuing notices of employee representational rights (NERRs) to the employees. There were subsequently a number of bargaining meetings with NUW and SDAEA representatives in the period from 19 April 2018 to 12 June 2018. Mr Rondinelli and Ms Dodimead were amongst the representatives of Coles at these meetings, and Mr Strauss was one of the NUW representatives.

[57] Prior to the commencement of bargaining, the NUW surveyed its members to identify what were the most important issues. There was a concern amongst many workers that the site might close because it was 20 years old and the lease would soon expire. There was also a concern about the possible automation of distribution centres given that Woolworths was at the time in the process of developing an automated warehouse in Victoria. Consequently, when the NUW drew up its log of claims for the next enterprise agreement, it included a claim for improved redundancy benefits. The 2014 Agreement does not contain any entitlement to redundancy pay as such. Clause 7.3 provides, in effect, that in the event a decision was made to make employees redundant, “the Company will negotiate a redundancy package with the Union” (which, as per clause 3.1, is the SDAEA). In the absence of any agreement being reached, the only entitlement would be the NES entitlement in s 119 of the FW Act. Shortly before the commencement of bargaining, redundancy packages for a small number of employees made redundant had been negotiated with the NUW and the SDAEA, and the employees received two weeks’ pay per year of service capped at 26 weeks.

[58] The NUW’s log of claims, which was sent to Coles on 19 April 2018, claimed a redundancy package under which employees would receive six weeks’ notice and six weeks’ pay per year of service, uncapped, if made redundant. The log also included a separate claim for a “job security” provision intended to regulate and limit the use of casual and labour hire employees, and proposed an agreement with a nominal term of three years. The SDAEA’s log of claims also sought improved redundancy entitlements, including an uncapped redundancy pay scale of four weeks’ pay per year of service, and a new agreement with a three-year nominal term.

[59] Coles rejected the NUW’s and the SDAEA’s redundancy pay claims early on in the negotiations. At an early meeting (prior to mid-May 2018), a Coles representative in response to queries from both SDAEA and NUW representatives concerning the Forest Lake distribution centre said “we have just signed 5-year leases” and “there are no redundancies planned”. At a bargaining meeting on 30 May 2018, Coles made a comprehensive proposal for a new agreement to settle the issues in dispute. This included an offer of a new redundancy pay scale of three weeks’ pay per year of service, capped at 36 weeks. This was the redundancy pay entitlement applicable to Coles’ Parkinson distribution centre, which was its only other distribution centre in Queensland.

[60] Coles also proposed in its offer that the new agreement have a four-year nominal term. Mr Rondinelli explained that this was the same terms as the 2014 Agreement had, and Coles preferred a longer term to minimise the costs and disruption associated with the bargaining process.

[61] At a bargaining meeting on 15 June 2018, Coles reached an in-principle agreement with the SDAEA for a new agreement which included Coles’ redundancy pay proposal. However the NUW was not satisfied with Coles’ 30 May 2018 offer, and in early June 2018 it distributed a leaflet to employees criticising Coles’ offer in a number of respects, including the redundancy pay offer. In this respect the leaflet said:

“Redundancy has improved to 3 weeks per year capped at 36 weeks. However 8 of 11 Coles sheds have at least 52 weeks paid for redundancy! ARE YOU WORTH LESS THAN THE OTHER SHEDS?”

[62] The “8 of 11 Coles sheds” referred to were other Coles distribution centres outside of Queensland. The NUW’s leaflet did not criticise the proposed four-year term.

[63] At the 15 June 2018 meeting the NUW confirmed that it would campaign against a vote for an agreement based upon the term of the in-principle agreement reached with the SDAEA. Coles then took steps to put a proposed new agreement to give effect to the in-principle agreement to a vote of the employees to occur on 19 July 2018. The access period for the vote pursuant to s 180 of the FW Act commenced on 12 July 2018, and immediately prior to this Coles provided employees with an information and voting pack which described the history of bargaining, the key terms of the proposed agreement and the details of the voting process. Coles also conducted information sessions with employees on 16 and 17 June 2018. Sessions were conducted separately for each shift at each of the Forest Lake distribution centre, the Heathwood Grocery distribution centre and the Heathwood Liquor distribution centre.

[64] There was a considerable amount of evidence concerning statements about events at the day shift meeting at the Heathwood Grocery distribution centre on 16 July 2018. Ms Dodimead, Ms Hammond, Mr Anesone, Mr Crosbie, Mr Rourke and Mr Ly all attended this meeting and gave evidence about it. 4 Mr Rourke, Mr Ly and Mr Anesone said there were about 40-50 employees at this meeting, but Mr Crosbie gave a higher estimate. The NUW’s case of misrepresentation in respect of the Qld Agreement is substantially founded on statements said to have been made by Ms Hammond and/or Ms Dodimead at this meeting. Because there was a considerable variance as to the accounts given by each witness, it is necessary to set out the various versions of events.

[65] There is no dispute that Ms Dodimead gave a prepared presentation, in the form of a slideshow, about the proposed agreement that was to be voted on. It is not suggested that there was any misrepresentation contained in the prepared presentation or the slides which supported it. There was also a near-consensus amongst the witnesses that the remarks which caused the controversy were made in response to a question or questions from the floor of the meeting.

[66] Mr Anesone’s evidence was that an employee named Pedro asked a question concerning rumours that had circulated for some years about Coles opening “a super DC”. He said that Ms Dodimead replied by saying: “From what I can tell you there is no super DC opening up”. Ms Hammond then supported this statement, and Ms Dodimead also said “something” about a new lease for the existing distribution centres and “how we were secure”. Mr Anesone said that he then asked why, if their jobs were safe, they could not be given the redundancy pay as other Coles distribution centres, to which Ms Hammond replied: “Great question, but your jobs are safe and we can’t give you everything, there has to be something for us in it as well”.

[67] Mr Crosbie’s evidence was that employees asked at the meeting why the redundancy package could not be increased to 52 weeks’ pay, to which the response was that Coles “would not move on it”. Mr Crosbie said that Ms Hammond added: “Leases are in place in Coles Forest Lake and Heathwood; your jobs are safe and there are no plans for redundancy at Coles; you have nothing to worry about; there is always the next EBA to get a better redundancy”.

[68] Mr Rourke gave evidence that Ms Hammond said: “There will be no redundancies in the foreseeable future. We have just taken Polar Fresh back from 3PL [third party logistics provider], so why would we make anyone redundant? You’ve got the same deal they just signed for redundancy … Don’t worry guys, your jobs are safe”.

[69] Mr Ly’s evidence was that an employee asked “If there are no plans on shutting down this place, why don’t you give the workers 52 weeks (redundancy)?”, to which Ms Hammond replied: “We have just signed a full lease, we won’t be making anyone redundant; your jobs are safe”.

[70] In reply to the above evidence, Ms Hammond said:

● she took the lead in answering questions at the meeting after Ms Dodimead completed her presentation;

● in response to a question about the redundancy clause, Ms Hammond responded that “it is in line with Parkinson, which is consistent across Queensland”;

● she confirmed that there were lease agreements in place for the Forest Lake and Heathwood sites;

● she referred to three chilled distributions centres as having transitioned in-house from Polar Fresh to Coles with no redundancies;

● she otherwise did not recall the questions or responses alleged by the NUW witnesses;

● she was aware of the rumours concerning the Forest Lake and Heathwood distribution centres being replaced by a “super DC”, but did not recall any questions or answers about it at the meeting.

[71] Ms Dodimead’s evidence was different in a number of respects to that of Ms Hammond. She said that there were questions about the redundancy package offered by Coles, to which Ms Hammond responded “we won’t move up on redundancies”. Ms Dodimead said there was a question about the Parkinson Chilled distribution centre which Coles had recently taken back in-house from Polar Fresh, to which Ms Hammond responded: “You’ve got the same deal as Parkinson DC for redundancy”. Ms Hammond also said, according to Ms Dodimead, words to the effect of “don’t worry guys, there are no immediate plans for redundancies at Coles”. She recalled that team members did ask questions about a rumoured new distribution centre to be opened at Yatala and to replace Forest Lake and Heathwood, and that either herself or Ms Hammond replied that this was only a rumour. She also said that a team member asked “why not give us the same redundancy as other Coles DCs?”, to which she recalled that Ms Hammond began her reply with “great question” but did not recall the rest of her response. She did not otherwise recall the various remarks attributed to Ms Hammond or herself by the NUW witnesses.

[72] As will be apparent from the above summary of the evidence, no two witnesses gave a consistent account of what occurred at the 16 July 2018 meeting. There was no recording or minutes taken of the meeting. I do not consider that any witness was untruthful in their recollection of the meeting, but it is likely that there has been unconscious selectivity of memory on the part of some witnesses and a conflation between what was actually said and the meaning ascribed to what was said. I place significant weight on the evidence of Ms Dodimead, who gave evidence that was detailed, inconsistent in some respects with Coles’ interests as well as with the evidence of Ms Hammond, and consistent in some respects with the evidence of some of the NUW’s witnesses. Having regard to these matters, I am satisfied on the balance of probabilities that, between them, Ms Hammond and Ms Dodimead made statements to the following effect to the participants at the meeting:

(1) There were leases in place for the Forest Lake and Heathwood distribution centres and for that reason employees’ jobs were safe.

(2) Coles had no immediate plans for redundancies.

(2) Coles would not improve upon its redundancy pay offer, which was the same as for the Parkinson distribution centre.

(3) It was only a rumour that there would be a new distribution centre opened at Yatala to replace Forest Lake and Heathwood.

[73] The result of the vote which occurred on 19 July 2018 was that the proposed agreement was rejected by a majority of 63% of those who voted. The witness statements of Messrs Anesone, Crosbie, Rourke and Ly did not disclose how they voted, but Mr Anesone and Mr Crosbie said in their oral evidence that they voted against it.

[74] Following the unsuccessful vote, there were further bargaining meetings on 23, 25 and 26 July. At these meetings both the SDAEA and the NUW identified the provisions of the proposed agreement they considered needed to be improved in order to secure approval from employees, and both included the redundancy pay provisions. The NUW identified redundancy as a “die in the ditch” issue, but Coles refused to alter its position and pointed out that at Coles’ Parkinson Distribution Centre, where the NUW represented the majority of employees, the same redundancy pay outcome which Coles was proposing had been agreed. Neither union made any complaint about the proposed four-year term.

[75] On 25 July 2018 Coles tabled a new offer which included an improved pay proposal but did not alter the position concerning redundancy pay. Mr Rondinelli made it clear at the 25 July 2018 meeting that Coles would not increase the redundancy offer, there would be no further bargaining meetings and that it intended to put its proposal to a further vote of employees. The NUW initially persisted with its claim for improved redundancy pay, but in an email sent on 2 August 2018 the NUW acknowledged that Coles did not intend to change its position and said that this had been communicated to the NUW’s delegates. On 6 August 2018 Coles made a further improved offer. The SDAEA indicated its support for the proposal on 8 August 2018. The NUW conducted mass meetings of its members at the Heathwood Grocery and Liquor distribution centres, and (according to Mr Strauss) members were in general happy with the improved offer except that they were “still adamant that the redundancy entitlement had not improved enough”. Mr Strauss said that he believed that the same sentiment was present in meetings conducted by the SDAEA, but the basis for this belief was not disclosed. The NUW did not actively campaign against approval for the proposed new agreement.

[76] The access period for the second vote commenced on 8 August 2018, and immediately prior to this a “Team Member EA Voting Information Pack” was provided to employees. Coles again held information sessions for employees on 14 August 2018. There is no suggestion of any misrepresentation by Coles either in the Information Pack or during the information sessions. The vote occurred on 16 and 17 August 2018, and the Qld Agreement was approved with a majority of 62% of those who voted.

Bargaining for the NSW Agreement

[77] The NDC is currently covered by the Coles Eastern Creek (NUW) National Distribution Centre Enterprise Agreement 2015-2018 (2015 Agreement). The 2015 Agreement has a nominal expiry date of 1 September 2018. In respect of termination of employment because of redundancy, the 2015 Agreement provides in clause 26 that employees have an entitlement to four weeks’ notice and four weeks’ pay per year of service, with employees over the age of 45 entitled to an additional week’s pay per year of service capped at 10 weeks, subject to an overall cap of 52 weeks’ pay.

[78] Coles initiated bargaining for the NSW Agreement when it issued NERRs to relevant employees on 24 April 2018. The first bargaining meeting occurred on 10 May 2018, on which date Coles presented its log of claims to the NUW. The evidence establishes that Mr Thornell gave a positive review of the NDC’s performance at this meeting. He also said at this and/or later meetings that Coles was committed to investing $5 million in mechanisation at the NDC. In respect of this representation, Mr Thornell gave evidence that Coles had already spent $2 million of this investment and planned to proceed with the remainder of the investment. This evidence was not the subject of any cross-examination, nor was it contradicted. Mr Dundon said in his witness statement that Mr Thornell also said, in connection with this investment, that Coles “had to get another 10 years out of it” (referring to the NDC). This was not specifically affirmed or denied by Mr Thornell in his witness statements.

[79] At the second bargaining meeting on 29 May 2018, the NUW presented its own log of claims. The NUW’s log contained 21 items, of which the sixth was as follows:

“A clause providing that no permanent Employee be made redundant whilst labour hire employees. Contractors and/or employees of contractors, engaged by the Employer, are performing work that is or has been performed by the Employees on the site and for redundancy severance provisions to be uncapped.”

[80] Mr Noshie said in his witness statement that the claim for uncapped redundancy pay provisions “was formulated as the second most important claim on the log as presented to me”, but that is far from apparent on the face of the document. He also said that the claim arose from members’ concerns about their redundancy entitlements if the workplace was automated. The NUW’s log also included (at number 4) a claim for a provision requiring permanent employment to be offered to casual employees after six months’ regular and systematic employment and (at number 5) a claim for a provision under which agency labour could only be used if such persons were paid in accordance with the proposed agreement and were not engaged on terms and conditions which would undercut employees.

[81] At the meeting on 29 May 2018, a NUW representative said that item 6 in the NUW log was based on the fact that automation in the industry was “driving some concern” amongst NUW members. At the following meeting on 31 May 2018, Mr Thornell on behalf of Coles said that the current redundancy pay provisions were generous and that the claim in item 6 was wholly rejected.

[82] Coles maintained throughout the negotiations that the term of a new agreement should be four years (as distinct from the three-year term of the 2015 Agreement) and offered a 4% increase in the fourth year to secure agreement to this. Ms Bryant’s explanation of this was that Coles wished to “decouple” the nominal expiry date of any enterprise agreement at the NDC from the enterprise agreement applying at the nearby Coles Eastern Creek Chilled distribution centre. The current agreements at the two sites had nominal expiry dates within a few weeks of each other, which exposed Coles to the potential of protected industrial action occurring at both sites simultaneously. Coles therefore proposed a four-year term for the NDC’s new agreement and a three-year term for the new agreement at the other site. Ms Bryant also explained that enterprise bargaining was an expensive and time-consuming process for Coles which it wanted to minimise. Ms Bryant’s explanation is corroborated by a slideshow concerning the proposed new agreement which Coles presented to employees in mid-July 2018. Under the heading “Why does Coles want a 4 yr EA agreement?”, Coles included as a reason that “Coles want to get out of the EA sequence with the CDC – Inconvenient and a distraction for 2 sites at the present – There is the potential risk to customers and service”. I accept Ms Bryant’s explanation of Coles’ position that the new agreement have a four-year term. Ms Bryant denied that Project Broccoli influenced in any way Coles’ strategy to seek a four-year term, and there was no evidence to contradict that denial.

[83] After the fifth bargaining meeting on 7 June 2018 there remained significant differences between the parties, principally concerning wages, allowances and the term of the new agreement. The evidence does not suggest the redundancy pay entitlements claim was treated as an issue remaining in dispute after Coles rejected item 6 of the NUW’s log on 31 May 2018.

[84] Coles was anxious to have a new agreement approved before the nominal expiry date for the 2015 Agreement was reached so that it would not be exposed to protected industrial action. At the ninth bargaining meeting on 28 June 2018, Coles made a proposal for a new “roll-over” agreement with a four-year term to be put to a vote of employees. The NUW representatives agreed to positively present the terms of the proposed agreement to NUW members at mass meetings to be held on 3 and 5 July 2018. After these mass meetings had occurred, there was a further bargaining meeting on 5 July 2018 at which Mr Noshie informed Coles that the NUW’s members opposed the proposed new agreement. Ms Bryant’s evidence, which was not contradicted, was that Mr Noshie said at this meeting that NUW’s members’ concerns related to wages and allowances and the term of the new agreement.

[85] There were further bargaining meetings on 10 and 12 July 2018 which did not result in progress being made, and led to Coles determining to put its proposed agreement to a vote of employees. The access period for this vote commenced on 17 July 2018 and, on the preceding day, Coles distributed a “Team Member Information and Voting Pack” to employees which included an explanation of key provisions of the proposed new agreement. Coles managers also conducted nine information sessions with employees on 17, 18 and 20 July 2018. These sessions were conducted using a slideshow entitled “Proposed 2018 Enterprise Agreement”.

[86] The vote was conducted on 24, 25 and 26 July 2018, and the result was that the proposed agreement was rejected by a majority of about 55% of those who voted. Coles managers sought feedback from employees after the vote, and negotiations then recommenced with the NUW on 31 July 2018. Mr Kot gave evidence that “Feedback from over 50% of the NUW membership was the issue of job security” and mentioned “assurances from management … in regard to their job security”; Mr Noshie said that during the renewed bargaining process “The company had to reassure them about their job security through several meetings to try and get them to change their ‘no’ votes and finally accept the deal”, and Mr Dundon said that Mr Thornell gave assurances that “we had nothing to worry about regarding job security”.

[87] This evidence is problematic for two reasons. First, the evidence is so generalised and lacking in particularity that it is difficult to assign it any significant weight. It is not possible to identify what precisely are the representations said to have been made by Coles and when they were made; for example, Mr Kot gave evidence about assurances given concerning job security, but when tested about when such assurances were given, he said that they were contained in the Coles slideshow. However the NUW was unable to identify where any such representation was made in the slideshow (which was placed into evidence).

[88] Second, the witnesses did not make it clear what they meant by the term “job security”. Mr Thornell gave evidence in his witness statement, which was not the subject of cross-examination or contradiction, that the NUW did not raise the issue of job security insofar as it related to redundancies at the further bargaining meetings, but rather raised job security in connection with fears about the casualisation of the workforce. In this connection it is significant that Coles agreed in the second round of bargaining to introduce a new labour resourcing review provision (clause 40 of the Agreement) under which Coles was to review its labour resourcing requirements every six months and fill any vacant positions with agency labour hire employees working at the NDC. Having regard to this evidence, I am not satisfied that redundancy pay was ever raised by the NUW as an outstanding issue after the first unsuccessful vote, and that any discussions and representations concerning “job security” related to those in precarious employment at the NDC, namely labour hire casuals.

[89] In-principle agreement was reached between Coles and the NUW as to the terms of a new agreement on 7 August 2018. A new access period commenced on 8 August 2018, and an updated information and voting pack was distributed immediately prior to this. Information sessions with employees were conducted by Coles Managers on 10 and 14 August 2018. The only “job-security”-related issue that arose during these sessions concerned a misunderstanding about pay rates for direct and labour-hire casual employees, which was clarified by Coles. The second vote was conducted from 15 to 17 August 2018, and the proposed agreement was approved by a majority of about 56% of those who voted.

[90] Mr Kot said in his witness statement that, when the announcement concerning the new automated distribution centres and the closure of the NDC was made to the workforce (presumably on 5 October 2018), Mr Thornell said to him: “Now I know why they [Coles] wanted a 4 year deal”. In his witness statement Mr Thornell denied having said words to that effect either on 5 October 2018 or at any other time. Mr Kot was not cross-examined about this aspect of his statement and Mr Thornell was not cross-examined at all. Even if Mr Thornell said the words attributed to him by Mr Kot, this could only be pure speculation on his part since he said he had no knowledge of any plan to build the new automated distribution centres or to close the NDC until about 45 minutes before it was announced to the employees on 5 October 2018. I have earlier made findings about Coles’ motivation for seeking a four-year term, and even if I accepted Mr Kot’s evidence, it is not probative in relation to that issue.

Consideration

[91] In considering the NUW’s case against the approval of the two agreements, it is necessary to align the chronology of the bargaining process for each agreement with that of Project Broccoli. As earlier set out, the final board decision to proceed with the project was not made until 4 October 2018 while the voting process for the Qld Agreement commenced on 8 August 2018 and for the NSW Agreement on 15 August 2018. In the strict sense therefore, Coles could not have disclosed the formal decision to proceed with the project (and to close down the Forest Lake and Heathwood distribution centres and the NDC) prior to the vote being taken on either project. However I consider it would be somewhat naïve to think, given the size of the investment involved in establishing the two new automated distribution centres, that Coles’ commitment to Project Broccoli can only be dated to the board meetings which occurred on 4 October 2018. As a matter of commercial reality, when a large corporation engages in the development of a major investment project which involves its most senior executives and continuing board oversight - as here - such projects will usually reach a “point of no return” some time before final board sign-off. The key pointer to that being the case with Project Broccoli is the Concise Independent Expert’s Report concerning the demerger which was sent by Grant Samuel to the Wesfarmers Board. It is dated 5 October 2018 but was obviously prepared well before that date, and it states unequivocally that Coles’ business strategy post-demerger would include “…modernising its supply chain through the development of two new automated distribution centres over a five year period, which are expected to deliver lower supply chain costs and higher service levels, improved efficiency and stock availability in stores, safer working environments and enhanced business competitiveness…”.

[92] It is difficult to identify the time at which Project Broccoli reached that point. The NUW did not seek discovery of internal Coles documents which may have assisted in this task. The Courier Mail report of 21 September 2018, which clearly contained very accurate information, suggests Coles was already virtually committed to the course of establishing an automated distribution centre in Queensland at that time. It is possible that the decision reached in mid-August 2018 to expedite negotiations with Witron so that an announcement could be made prior to the date of the demerger might represent that point, but against that is the fact that this was prior to the intensive negotiations with Witron in Germany from 28 to 31 August 2018 and the subsequent decision that it was only achievable to negotiate a heads of agreement prior to the demerger announcement. Mr Brewster said that the information which formed the basis of the passage in the Grant Samuel report quoted above was supplied in September 2018 (without further specification of the precise date). In the circumstances of the limited evidence before me, I am not satisfied that Coles had committed itself either in legal or practical terms to developing the two new automated distribution centres (and closing the Forest Lake and Heathwood distribution centres and the NDC) at any time prior to the voting processes in August 2018 by which employees approved the Qld Agreement and the NSW Agreement.

[93] The most that could conceivably have been disclosed by Coles to relevant employees during bargaining for the Qld Agreement and the NSW Agreement therefore was that there was a significant possibility that a decision might be made in the near future to establish two new automated distribution centres and to close the Forest Lake and Heathwood distribution centres and the NDC. Accordingly the first question that arises, having regard to the case advanced by the NUW, is whether the failure of Coles to disclose this prior to the votes constitutes a reasonable ground for believing that the Qld Agreement and the NSW Agreement were not genuinely agreed to by the employees covered by them.

[94] Coles submitted (on the basis of evidence given by Mr Brewster) that it was not in a position to disclose the developing position concerning Project Broccoli to employees during bargaining because:

● the Wesfarmers Market Disclosure Policy, which reflects continuing disclosure obligations under the ASX listing rules, prohibits disclosure of market sensitive information prior to its public release through the ASX;

● an ASX announcement prior to Coles entering into the heads of agreement would have created significant legal risk in terms of creating false market expectations;

● disclosure to employees only may have involved contravention of the insider trading provisions of the Corporations Act 2001; and

● such disclosure may have jeopardised the project’s viability including by skewing leasehold prices and opening it up to public commentary.

[95] This submission may readily be accepted but at the same time I do not consider that it constitutes a proper answer to the NUW’s case. Where disclosure of a material fact is necessary in order for employees to give informed consent to a proposed enterprise agreement, the existence of legal or practical impediments to disclosure cannot render the agreement of employees genuine for the purpose of s 188(1)(c). If at a particular time legal constraints or commercial sensitivities means that the necessary disclosures cannot be made to employees to permit them to genuinely agree to a proposed enterprise agreement, then the consequence may be that an enterprise agreement cannot be made at that time and must be deferred until such time as the necessary disclosures are able to be made.

[96] The more material consideration here is, I consider, the intended timing of the opening of the new automated distribution centres and the closure of the Forest Lake and Heathwood distribution centres and the NDC. The unchallenged evidence of Mr Brewster was that this would not occur until 2023, subject only to the “assumption” made by Mr Rondinelli that “ramping down” of the existing distribution centres might commence in late 2022 or early 2023. The most that could conceivably have been disclosed by Coles to employees prior to the votes to approve the Qld Agreement and the NSW Agreement therefore was the existence of a significant possibility that the distribution centres to be covered by the proposed agreements might close, with a consequent need for redundancies, at some time after those proposed agreements had passed their nominal expiry dates (which are 5 August 2022 and 1 September 2022 respectively).

[97] I do not consider that this was a disclosure that was necessary to be made in order to obtain the genuine agreement of employees in respect of the proposed agreements. There is no question that the terms of the proposed agreements, including the redundancy terms, and the effect of those terms, were properly explained to employees. On the evidence before me, there will be no redundancies caused by Project Broccoli prior to the nominal expiry date of either agreement, so the redundancy terms in each agreement will not operate in respect of any such redundancies prior to that date. Employees will have the opportunity to bargain for new agreements, including new redundancy terms, to operate when any redundancies caused by Project Broccoli actually occur, and they will also have the opportunity to take protected industrial action in support of any claim for improved redundancy pay provisions in any new agreement before any such redundancies occur. Non-disclosure did not affect the capacity of employees to take advantage of this opportunity, and any informed employee would have been aware that they could pursue improved redundancy pay provisions after the nominal expiry dates of the agreements they were voting on had passed.

[98] Furthermore, it cannot be said that the possibility of redundancies occurring at some time in the future because of the development of new automated warehouses was unknown to employees. A number of witnesses said that the very motivation for the NUW’s claims for improved redundancy provisions was a concern about the future automation of distribution centres - a concern given flesh by the fact that the construction of the first Woolworths automated distribution centre in Victoria was approaching completion while bargaining was occurring for the Qld Agreement and the NSW Agreement. I do not consider that the disclosure of the substantial possibility that the distribution centres covered by the proposed agreements might be replaced by automated distribution centres some years in the future would necessarily have added anything to the legitimate concern about future automation which employees already held.

[99] I do not consider that the evidence supports the proposition that any non-disclosure by Coles concerning Project Broccoli had any relationship to its position, ultimately accepted by the employees, that the Qld Agreement and the NSW Agreement should each have a four-year term. In the case of the Qld Agreement, the four-year term merely repeats the position applying under the current 2014 Agreement. In respect of the NSW Agreement, Coles’ desire for a four-year term had the industrial rationale which I have earlier explained. This rationale had nothing to do with Project Broccoli and was disclosed to employees in a slideshow well before the vote.

[100] In those circumstances, it cannot in my view be said that Coles’ failure to disclose what conceivably could have been disclosed before the votes in August 2018 affected the quality of the agreement of employees to the Qld Agreement and the NSW Agreement. In summary:

● employees already held a legitimate concern about future redundancies because of automation at the time they voted;

● employees were provided with the information necessary to have a proper understanding of the redundancy provisions of the proposed agreements;

● there will not be any redundancies effected pursuant to those redundancy provisions arising from Project Broccoli prior to the nominal expiry dates of the agreements;

● after the nominal expiry dates of the agreements and before any redundancies occur as a result of Project Broccoli, employees will have the opportunity to bargain for improved redundancy pay provisions in new agreements and take protected industrial action in support of such claims;

● informed employees knew at the time they voted that they would have the opportunity to bargain for improved redundancy pay provisions in a new agreement after the nominal expiry date in each proposed agreement, and the availability of this opportunity was not affected by any non-disclosure by Coles; and

● Coles’ position that the Qld Agreement and the NSW Agreement should have four-year terms had nothing to do with Project Broccoli and was the subject of proper disclosure to employees.

[101] It is next necessary to consider the second limb of the NUW’s case, namely that misrepresentations made by Coles during the bargaining process for the Qld Agreement and the NSW Agreement meant that there are reasonable grounds for believing that the agreements were not genuinely agreed to by the employees. In respect of the Qld Agreement, I have earlier set out (in paragraph [72] above) the four representations relied upon by the NUW which I am satisfied were actually made at the information session on 16 July 2018. In relation to the first three of those representations, I do not consider that they conveyed any incorrect or misleading information. Dealing with these representations in turn:

(1) It was not contended by the NUW that Ms Hammond’s statement that there were leases in place for the Forest Lake and Heathwood sites was factually incorrect. When Ms Hammond, in connection with that statement, said that employees’ jobs were safe, I consider that would reasonably be understood as meaning that employees’ jobs were safe for the duration of those leases (which has not been suggested to be inaccurate). I do not consider that the statement could fairly be interpreted as meaning that employee’s jobs were safe for an indefinite period.

(2) As at 16 July 2018, I consider that it was entirely correct to say that Coles had no immediate plans for redundancies at the Forest Lake or Heathwood sites.

(3) Consistent with Ms Hammond’s statement, Coles did not improve on its redundancy offer after 16 July 2018, and that offer involved the same redundancy pay entitlements as the agreement applying at the Parkinson site.

[102] The fourth representation is more questionable. By 16 July 2018, given the stage which Project Broccoli had reached, it was clearly much more than a mere rumour that there would be a new distribution centre opened to replace those at Forest Lake and Heathwood (even though, as it has turned out, the new distribution centre will not be at Yatala). What Ms Hammond personally knew about Project Broccoli at this time is beside the point, since she was speaking on behalf of Coles and effectively acting as its agent. However to the extent that what Ms Hammond said might have amounted to a misrepresentation, it remains necessary to consider the effect this might have had on the genuineness of the employees’ agreement. In this respect I consider that the following matters are relevant:

● the representations were made at an information session for day shift employees at the Heathwood Grocery distribution centre on 16 July 2018, which was attended by approximately 40-50 employees out of a total workforce covered by the Qld Agreement of over 700 employees;

● the evidence does not establish that any representation to similar effect was made to any other part of the workforce at any other meeting at any other time;

● the representation was made in respect of the first proposed agreement, which was rejected by the workforce on 19 July 2018 by a substantial majority; and

● there is no evidence that any employee who heard the representation actually voted in favour of the Qld Agreement; those employee witnesses who gave evidence about it either did not say how they voted or voted against the approval of the Qld Agreement, and a number of them said they simply did not believe the representations they said were made.

[103] For these reasons I am not satisfied that any misrepresentation made on behalf of Coles constitutes a reasonable ground for believing that the Qld Agreement was not genuinely agreed to. In short, there is no basis upon which it might reliably be concluded that the representation swayed or influenced anybody who voted in favour of the approval of the Qld Agreement on 16 and 17 August 2018.

[104] In respect of the NSW Agreement, I am not satisfied that any representative of Coles made any misrepresentation as alleged by the NUW. Generally speaking, the NUW’s evidence concerning the alleged misrepresentations was expressed in vague generalities and was lacking in particularity. Mr Thornell’s review of the performance of the NDC and his statement that Coles was continuing to invest in the NDC at the meeting on 10 May 2018 was not demonstrated to be untrue or inaccurate. If he said that Coles intended to get a further ten years’ life out of the NDC, that was a true statement of Coles’ intention at that time having regard to the $5 million investment it was making in the mechanisation of the NDC. Subsequent discussions and any assurances made about “job security” at the bargaining meetings which occurred from 31 July to 7 August 2018 were concerned with the position of labour hire casuals, not future redundancies. Accordingly the factual premise of the NUW’s case concerning misrepresentation in relation to the NSW Agreement is rejected.

[105] The NUW advanced the additional contention that the Qld Agreement and the NSW Agreement lacked authenticity and moral authority because Coles failed to exhibit “trustworthiness” throughout bargaining. It was not made clear by the NUW in its submissions that this third limb of its case had any substantive content separate from its earlier contentions that the genuineness of employees’ agreement was vitiated by material non-disclosure and misrepresentations. Having regard to the conclusions I have already expressed, I do not consider that there is a proper basis to conclude that Coles conducted itself in an untrustworthy fashion during bargaining for the Qld Agreement and the NSW Agreement.

[106] For these reasons, I am satisfied for the purpose of s 188(1)(c) of the FW Act that there are no reasonable grounds for believing that the Qld Agreement or the NSW Agreement was not genuinely agreed to by the employees covered by each agreement.

Conclusion

Qld Agreement

[107] A signed copy of the consolidated undertakings given by Coles in respect of the Qld Agreement is attached as Annexure A. I accept the undertakings. I am satisfied that they will not cause financial detriment to any employee covered by the Qld Agreement and will not result in substantial changes to the Qld Agreement.

[108] On the basis of the material contained in the application, the accompanying statutory declaration, the further information provided by Coles, the undertakings attached as Annexure A and the conclusions earlier stated concerning s 188(1)(c), I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to the application for approval of the Qld Agreement have been met.

[109] As earlier stated, the NUW and the SDAEA have given notice under s 183 of the FW Act that they want the Qld Agreement to cover them. In accordance with s 201(2) I note that the Agreement covers the NUW and the SDAEA.

[110] The Agreement is approved and, in accordance with s 54 of the FW Act, will operate 7 days from the date of approval. The nominal expiry date of the Agreement is 5 August 2022.

NSW Agreement

[111] A signed copy of the consolidated undertakings given by Coles in respect of the NSW Agreement is attached as Annexure B. I accept the undertakings. I am satisfied that they will not cause financial detriment to any employee covered by the NSW Agreement and will not result in substantial changes to the NSW Agreement.

[112] On the basis of the material contained in the application, the accompanying statutory declaration, the further information provided by Coles, the undertakings attached as Annexure B and the conclusions stated above concerning s 188(1)(c), I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to the application for approval of the NSW Agreement have been met.

[113] Pursuant to s 205(2) of the FW Act, the model consultation term prescribed by reg 2.09 of the FW Regulations is taken to be a term of the NSW Agreement. In accordance with s 201(1) I note that the model consultation term is included in the NSW Agreement.

[114] The NUW has given notice under s 183 of the FW Act that it wants the NSW Agreement to cover it. In accordance with s 201(2) I note that the NSW Agreement covers the NUW.

[115] The NSW Agreement is approved and, in accordance with s 54 of the FW Act, will operate 7 days from the date of approval. The nominal expiry date of the NSW Agreement is 1 September 2022.

VICE PRESIDENT

Appearances:

H. Miflin on behalf of the National Union of Workers

F. Parry QC and A. Pollock of Counsel on behalf of Coles Group Supply Chain Pty Ltd

J. Murdoch QC and S. Sciacca on behalf of the Shop, Distributive and Allied Employees’ Association

Hearing details:

2019.

Sydney:

12 - 13 March.

<AE502501 AE502502 PR706203 >

ANNEXURE A

ANNEXURE B

 1   Wesfarmers demerged from Coles Group Limited, Coles’ parent company, in November 2018.

 2 [2018] FCAFC 77, 277 IR 23

 3 [1999] FCA 847, 93 FCR 317, 96 IR 156 at [126] per Wilcox and Madgwick JJ, with whom Moore J relevantly agreed at [155]

 4   Mr Anesone, Mr Crosbie, Mr Rourke and Mr Ly referred to events at a meeting which was not clearly identified by any of them in their witness statements and was described somewhat differently in terms of timing, but it became clear in cross-examination that they were all talking about the same meeting which all of them attended together with Ms Hammond and Ms Dodimead.

Printed by authority of the Commonwealth Government Printer