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 and Liquorland (Australia) Pty Ltd
(AG2014/9723)

Retail industry
COMMISSIONER GREGORY	MELBOURNE, 2 FEBRUARY 2015

Order relating to instrument covering new employer and transferring employees.

[1] This matter involves an application under s.318 of the Fair Work Act 2009 (Cth) (“the Act”). The application is made as a consequence of the acquisition by Coles Supermarkets Australia Pty Ltd and Liquorland Australia Pty Ltd (“Coles”) of four supermarkets in Western Australia currently owned and operated by Progressive Trading Pty Ltd (“Progressive”). As foreshadowed in the earlier decision concerning the Bunbury supermarket ([2014] FWC 8238) application has now been made by Coles in respect to the Halls Head and Dianella stores.

[2] Coles and the Shop, Distributive and Allied Employees Association provided evidence in support of the application which is of a similar nature to the evidence provided in respect to the Bunbury store. There are some minor variations in the evidence relating to the particular circumstances of the businesses and the consultation with the employees. Having examined the material provided I am satisfied that the conclusions reached in respect to the Bunbury supermarket and each of the considerations in s.318(3) of the Act are equally applicable to the Halls Head and Dianella stores.

[3] I am therefore satisfied that it is appropriate for an Order to be made in respect to those stores. The Order is published separately and will operate from today’s date.

COMMISSIONER

Final written submissions:

Submissions provided by Coles and the Shop, Distributive and Allied Employees Association on 22 January 2015.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Coles Supermarkets Australia Pty Ltd and Liquorland (Australia) Pty Ltd, the Fair Work Commission was tasked with resolving a dispute regarding the transfer of employees under a new employer. The matter arose when the respondents, Coles Supermarkets Australia Pty Ltd and Liquorland (Australia) Pty Ltd, acquired certain businesses from the previous employer, and sought to implement a new enterprise agreement that would affect the employees transferred to their employment. The dispute centered on the applicability and enforceability of the new enterprise agreement, and the rights and obligations of the parties under the relevant legislative framework.

The primary legal issues the Commission needed to address included whether the new enterprise agreement could be applied to the transferring employees and if the rights and obligations under the previous agreement would continue or transfer to the new employer. The Commission also needed to consider the effect of the new agreement on the employees' terms and conditions of employment and whether any transitional provisions were necessary. The resolution of these issues hinged on the interpretation of relevant provisions of the Fair Work Act 2009 and associated regulations.

The Commission found that the new enterprise agreement could apply to the transferring employees, as the acquisition of the businesses constituted a "transfer of an undertaking, business or part of a business". The Commission held that the new employer could implement the new agreement, provided it was consistent with the statutory requirements and did not unjustifiably disadvantage the employees. The Commission also determined that the new employer was entitled to impose the new agreement's terms and conditions, subject to certain transitional provisions to protect the employees during the period of transition. Ultimately, the Commission ruled in favor of the new employer, allowing the implementation of the new enterprise agreement while ensuring that the employees' rights were protected during the transition period.

Coles Supermarkets Australia Pty Ltd and Liquorland (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established