Coles Group Supply Chain Pty Ltd

[2018] FWCA 65

[2018] FWCA 65

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Coles Group Supply Chain Pty Ltd
(AG2017/2288)

COLES KEWDALE DISTRIBUTION CENTRE WA AGREEMENT 2017

Storage services
COMMISSIONER GREGORY	MELBOURNE, 4 JANUARY 2018

Application for approval of the Coles Kewdale Distribution Centre WA Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Coles Kewdale Distribution Centre WA Agreement 2017 (“the Agreement”). It is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act’) by Coles Group Supply Chain Pty Ltd (“the Applicant”). The Agreement is a single enterprise agreement and is intended to cover around 540 employees who are employed at the Distribution Centre.

[2] After reviewing the Application and the F17 Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission sought further clarification from the Applicant about various matters. These included, firstly, the Disputes Resolution term and whether it explicitly provides for employees to be entitled to have a representative involved at all stages.

[3] The second set of issues related to some of the provisions dealing with leave entitlements, and whether they were consistent with the requirements contained in the National Employment Standards. The Commission finally sought clarification, in the context of the “better off overall” test, about the provisions dealing with weekend penalty rates and part-time employment.

[4] The Applicant has, in response, provided several undertakings. I am satisfied that these undertakings will not cause financial detriment to any employee covered by the Agreement, and will not result in substantial changes to the Agreement. The undertakings are accordingly accepted and will now be taken to be a term of the Agreement in accordance with s.191 of the Act. They are set out in the attached correspondence dated 20 December 2017.

[5] The Applicant has also indicated that the Agreement voted on contains a number of unintended typographical errors. These involve some minor spelling errors, as well as some errors related to the cross-referencing of certain sub clauses in the Agreement. The Applicant has accordingly requested that the Commission exercise the discretion available to it under s.586 of the Act to correct these errors.

[6] Section 586 “Correcting and amending applications and documents etc.” of the Act states:

“The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

[7] The errors that are sought to be rectified are as follows:

Spelling errors:

•  Sub clause 13.7(vii) – correct the spelling of the word “clause”.

•  The references to “an team member” at sub clauses 14.1(f), 14.1(g), 18.1, 18.5, 28.1, 31.10(a) and Appendix A, A.1 to be amended to refer instead to “a team member”.

Incorrect clause references

•  The reference to sub clause 13.3 in sub clauses 11.1(a) and (b) to be amended in both cases to refer instead to sub clause 13.4.

•  The references to sub clauses 13.2.1(c) and (d) in sub clause 13.7(v) to be amended in both cases to refer instead to sub clauses 13.4(d) and (e).

•  The reference to sub clause 13.2.1(e) in sub clause 13.7(vi) to be amended to refer instead to sub clause 13.4(g).

•  The reference to “sub clause iii above” in sub clause 14.2(c)(iii) to be amended to refer instead to “sub clause ii above”.

Incorrect references

•  The references to “2014 Agreement” in sub clauses 13.6(b), 13.7(ii) and 13.7(iii) to be amended in each case to refer instead to “2011 Agreement”. It is noted that these amendments are consistent with the existing wording contained in sub clause 13.6, which also makes reference to “the 2011 Agreement”. The Applicant has also provided a copy of an email from the Western Australian Secretary of the Shop, Distributive and Allied Employees Association, who were a Union Bargaining Representative for the Agreement. It indicates its support for making the correction to refer to the 2011 Agreement, rather than the 2014 Agreement, noting that “the use of ‘2014’ was a drafting error”.

[8] The Applicant has also provided a revised Agreement incorporating the amendments sought to be made in accordance with s.586.

[9] I am satisfied, in response, that the corrections/amendments that are sought to be made simply involve drafting errors, and if made will enable the Agreement to be read as originally intended. I am also satisfied that they do not in any way act to change the intent or substance of the Agreement that was voted on and approved by a majority of the employees to be covered. I am therefore satisfied that it is appropriate to exercise the discretion contained in s.586 of the Act to make the changes detailed above. The Agreement that is published in conjunction with this decision contains those changes and amendments.

[10] The Shop, Distributive and Allied Employees’ Association and the National Union of Workers, who were both Union Bargaining Representatives for the Agreement, have both given notice under s.183 of the Act that they seek to be covered by the Agreement. In accordance with s.201(2) I note that the Agreement covers both organisations.

[11] I am otherwise satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[12] The Agreement is approved and in accordance with s.54 of the Act will operate from 11 January 2017. The nominal expiry date of the Agreement is 30 April 2020.

COMMISSIONER

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APPENDIX A