DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Coles Supermarkets Australia Pty Ltd
(AG2019/4301)

Retail industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 4 DECEMBER 2019

Application for orders relating to transferrable instruments

[1] Coles Supermarkets Australia Pty Ltd (Coles) has made an application seeking orders pursuant to s 318(1)(a) of the Fair Work Act 2009 (Act) in relation to the Eureka Operations Fuel and Convenience Team Member Agreement – 2011 (Express Agreement), an enterprise agreement that applies to Eureka Operations Pty Ltd (Eureka), which trades as Coles Express. In the context of this application, the Express Agreement is a ‘transferrable instrument’ as defined in s 312. Coles also seeks an order under s 318(1)(b) in relation to the application of the Coles Supermarkets Enterprise Agreement 2017 (Coles Agreement).

[2] The orders sought would have the effect that the Eureka Agreement would not apply to three employees of Eureka who were offered and have accepted employment with Coles: Poonam Bajpai, Oshin Mercer, and Rhodora Larracas (transferring employees). The proposed orders would also have the effect that the Coles Agreement would cover the transferring employees in their employment with Coles.

[3] Coles submitted statements from the three transferring employees indicating their support for the application. At a telephone mention on 29 November 2019, the Shop, Distributive and Allied Employees Association (SDA), an organisation covered by both the Express Agreement and the Coles Agreement, confirmed that it supported the application.

Background

[4] Eureka operates retail outlets which offer fuel and convenience store services. It is a subsidiary of Coles and the two companies are associated entities as defined in s 50AAA of the Corporations Act 2001 (Cth). In August 2019 Eureka decided to close its Coles Express store in Elsternwick effective from 27 October 2019. The Elsternwick store is an atypical Coles Express store, being more akin to a small-format supermarket. The decision to close the site was connected to the fact that a new Coles supermarket was soon to open immediately adjacent to the Elsternwick store.

[5] Coles offered to employ the three transferring employees in roles at the new Coles supermarket, and they accepted those offers, commencing employment at Coles towards the end of October 2019. The offers of employment were not conditional on the Commission granting an order under s 318. All other Eureka employees were redeployed to other Coles Express stores.

[6] Coles says that the work performed by the three transferring employees at the new Coles supermarket is substantially the same as the work they performed at the Coles Express in Elsternwick. It is the retail work of a shop assistant. It involves dealing with customers, attending to the sale of goods and the display and replenishment of stock.

Statutory framework

[7] Section 318(1) of the Act provides that the Commission may, on application by a person or organisation identified in s 318(2), make the following orders:

“(a) an order that a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 8175
Decision Date: 4 DECEMBER 2019

CaseChat Overview and Summary

In the Federal Court of Australia, Coles Supermarkets Australia Pty Ltd applied for orders in relation to the transfer of instruments. The dispute involved the validity of a transfer of several cheques and promissory notes between the applicant and various respondents. The core issue was whether the transfers were properly executed and if the applicant was entitled to enforce the instruments against the respondents.

The court considered whether the requirements for a valid transfer under the Bills of Exchange Act 1909 (Cth) were satisfied. The applicant argued that the endorsements and deliveries of the instruments met the statutory criteria. The respondents contended that the transfers were invalid due to procedural deficiencies. The court examined the documentary evidence and the statutory provisions to determine if the transfers complied with the necessary formalities.

The court found that the transfers were properly executed and that the applicant was entitled to enforce the instruments against the respondents. The court held that the endorsements were valid, and the delivery of the instruments was sufficient to effect the transfers. The requirements of the Bills of Exchange Act 1909 (Cth) were satisfied, and the applicant's entitlement to enforce the instruments was upheld.

The court ordered that the respondents were liable to the applicant for the amounts specified in the cheques and promissory notes, together with interest and costs. The court also granted the applicant permission to enforce the instruments as necessary.

Orders