Jamie Clarey v Coles Supermarkets (Australia) Pty Ltd T/A Coles Supermarkets

[2021] FWC 5

[2021] FWC 5

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Jamie Clarey
v
Coles Supermarkets (Australia) Pty Ltd T/A Coles Supermarkets
(C2020/6316)

DEPUTY PRESIDENT BULL SYDNEY, 13 JANUARY 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES

[1] Mr Jamie Clarey, an employee of Coles Supermarkets (Australia) Pty Ltd (Coles) and covered by the Coles Supermarkets Meat Enterprise Agreement 2018 (the 2018 Agreement) has filed a dispute application pursuant to s.729 of the Fair Work Act 2009 (the Act). The relief sought in the application is as follows :

“I want all my personal leave returned to my account”

[2] In a document accompanying the application, Mr Clarey submits that Coles has stated that he was credited personal leave in advance when he first started his full-time employment. Mr Clarey disputes this and alleges that personal leave was not credited on his payslip until he completed 12 months’ service under the Coles Supermarkets (Australia) Pty Ltd & Bi-Lo Pty Ltd & AMIEU NSW/ACT Meat Agreement 2012 (2012 Agreement) and further, that personal leave could not be accessed until it had been earnt. 1

[3] In Mr Clarey’s written outline of submissions of 6 November 2020, 2 he states that he seeks a determination on whether his personal leave was incorrectly applied when the 2018 Agreement was implemented. The 2018 Agreement was approved by the Commission on 9 August 2019 and commenced to operate from 19 August 2019, in accordance with s.54 of the Act.3

[4] Clause 9.6 of the 2018 Agreement, titled “Personal Leave”, provides that employees accrue 10 days paid personal leave for each year of continuous employment, 4 which accrues progressively during each year of continuous service.5

[5] The application is opposed by Coles on the basis that it is lacking in merit and is outside the Commission’s jurisdiction. Attached to the initial response filed by Coles was a copy of a letter sent by Coles to Mr Clarey on 21 November 2019 which contained the following:

“As you are aware, we recently implemented the Coles Supermarkets Meat Enterprise Agreement 2018 (2018 Agreement) which covers our meat team members nationally.

Under the 2018 Agreement, clause 9.6.4 provides that Personal Leave accrues progressively during each year of continuous service. This is a change from your previous state-based Meat Agreement.

Due to some IT constraints, we have implemented the 2018 Agreement in our systems over two phases, as a result of this our records indicate that the system has incorrectly granted Personal Leave in advance on your recent anniversary date.

As this is not in line with the 2018 Agreement your Personal Leave balance will be adjusted to accurately reflect what it should be, that is the Personal Leave entitlement you have accrued progressively from 19 August to date.

Please note, this adjustment will not impact any Personal Leave you have accrued and not taken prior to your recent anniversary date. This adjustment will be reflected on MyColes from Friday 22 of November 2019.

If you have any questions, please contact your OIC. We thank you for your understanding.”

[6] Coles submits that the 2018 Agreement is a national agreement replacing six state agreements and although it commenced operation on 19 August 2019, given the volume, not all system changes were able to be implemented immediately. This meant that some system changes were progressively rolled out between August 2019 and late 2019. The transition from meat team members accruing personal leave in advance under the 2012 Agreement, to accruing personal leave progressively under the 2018 Agreement was not implemented until November 2019.

[7] Coles submits that contrary to Mr Clarey’s contention, the crediting of 10 days personal leave on 19 September 2019 to Mr Clarey was not in respect of his previous 12 months service, but an erroneous advancement of his personal leave on his anniversary for 2019-2020, as had previously occurred under the replaced 2012 Agreement. 6

[8] Coles submits that the Commission has no jurisdiction to deal with Mr Clarey’s dispute as it is not a matter that arises under the 2018 Agreement nor is it a matter in relation to the National Employment Standards (NES).

Conclusion

[9] The Commission conducted two telephone conciliation conferences on 2 September 2020 and 20 October 2020 in an attempt to resolve Mr Clarey’s dispute, failing which, the application was to be listed for the purposes of dealing with the question of whether the Commission was empowered to arbitrate the dispute. On receipt of the respondent’s written submissions, 7 Coles requested that the matter be determined on the papers as there was no witness evidence to be dealt with. Mr Clarey subsequently consented to this request .8

[10] As stated above, the application has been filed pursuant to s.739 of the Act. Section 739 of the Act is titled Disputes dealt with by the Fair Work Commission, and states at s.739(1):

“This section applies if a term referred to in section 738 requires or allows the Commission to deal with a dispute.”

[11] Further, sub-s.739(4) states:

“If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, however described, the Commission may do so.”

[12] Clause 3.2 - Dispute Resolution Procedure of the Agreement provides a procedure to deal with disputes:

•  about a matter arising under the Agreement; or

•  in relation to the NES.

[13] After the parties have followed a number of steps and if the dispute is not resolved a party may refer the dispute to the Commission for conciliation and if necessary arbitration. It therefore must first be ascertained whether the dispute as characterised by Mr Clarey is about a matter arising under the 2018 Agreement and/or in relation to the NES.

[14] In an email to the Commission on 18 September 2020, Mr Clarey states that the issue before the Commission “relates to Coles taking away annual personal/sick leave entitlements from certain Coles employees in contravention of the modern award and the fair work act”.

[15] In his written submissions of 24 November 2020, Mr Clarey states that the dispute is “properly characterised as an unlawful deduction of personal leave entitlements in contravention of the 2018 Agreement and s.324 - Permitted Deductions of the Act”. 9

[16] Mr Clarey was previously covered by the Coles Supermarkets (Australia) Pty Ltd & Bi-Lo Pty Ltd & AMIEU NSW/ACT Meat Agreement 2012, 10 which Coles states provided that meat team members accrued personal leave annually, which was granted in advance on a team members anniversary date.11 This is to be contrasted with the 2018 Agreement that provides for personal leave to accrue progressively during each year of continuous service.

[17] As a result of the delayed implementation, any employees who had an anniversary date which fell between the commencement of the 2018 Agreement on 19 August 2019 and November 2019 were incorrectly granted personal leave in advance despite the full 10 days of personal leave not yet having accrued as per the 2018 Agreement. 12 As stated in Coles’ correspondence to Mr Clarey on 21 November 2019, he was an employee who was incorrectly advanced his total annual personal leave accrual on his anniversary date of 20 September 2019, which was the practice under the 2012 Agreement. Coles then advised Mr Clarey that its records would be adjusted to reflect his personal leave accruing progressively from 19 August 2019 being the correct method of personal leave accrual under the new 2018 Agreement.

[18] In Mr Clarey’s written submissions of 6 November 2020, he contends that his dispute concerned the application and accrual of personal leave after the 2012 Agreement was superseded by the 2018 Agreement. Mr Clarey submits he was unlawfully deprived of 10 days personal leave upon the implementation of the 2018 Agreement. Mr Clarey states that his right to this leave arises from the NES and the sick leave provisions of the 2012 and 2018 Agreements respectively. Mr Clarey also relies upon the dispute settling procedure of the 2012 Agreement as providing the Commission with jurisdiction to deal with his dispute.

[19] In its written submissions of 20 November 2020, Coles submits that based on the authority of a Full Bench decision of this Commission, 13 disputes under expired enterprise agreements (namely the 2012 Agreement) cannot be subject to resolution by the Commission, the dispute must relate to the 2018 Agreement.14 Coles rejects any assertion that Mr Clarey has lost any personal leave entitlements and states that he is in receipt of all his personal leave accruals.

[20] Following receipt of the written submissions of Coles, Mr Clarey provided submissions in reply, which amended his initial submissions by removing reference to the 2012 Agreement as being the source of his right to personal leave and providing the Commission with the jurisdiction to deal with his dispute. However, Mr Clarey submits that reference to the 2012 Agreement is necessary for the Commission to understand his argument. 15

[21] Despite Mr Clarey’s submissions, it is clear that his dispute relates to whether he was advanced his 10 days personal paid leave under the 2012 Agreement on his anniversary date, or whether he received his full 10 days personal leave only after the completion of 12 months continuous service. This is made clear in Mr Clarey’s reply submissions at [17] where he states that the provision of personal leave in advance “seems illogical” and that the 2012 Agreement does not expressly provide that personal leave is credited in advance.

[22] In my view, the matter to which the dispute relates is whether Mr Clarey was advanced 10 days paid personal leave on his anniversary date while employed under the 2012 Agreement, discounting his first year of employment as the 2012 Agreement states at clause 23.2 that sick leave accrues on a monthly pro rata basis during the first 12 months of employment.

[23] Coles provides examples in their F1 response of occasions from 2014 to 2018 where it contends that Mr Clarey was credited in advance with 10 days personal leave on his anniversary date. 16 Despite this, Mr Clarey does not accept that he has at any time been credited with his personal leave in advance under the 2012 Agreement, and that Coles “need to prove that they paid my seventy six (76) hours personal leave in advance at the beginning of my full-time employment before they can take my personal leave that I have earned away from me”.17

[24] The ability for the Commission to deal with Mr Clarey’s dispute in respect of an enterprise agreement is limited to a matter arising under the 2018 Agreement. The dispute does not relate to an interpretation of any term in the 2018 Agreement, nor does it relate to a disputed entitlement under the 2018 Agreement.

[25] The Agreement commenced operation on 19 August 2019 and personal leave is provided under clause 9.6, which states that it is to accrue progressively during each year of service. Coles has advised Mr Clarey that in line with subclause 9.6.4 of the 2018 Agreement, his personal leave has been adjusted along with other meat team members to accrue progressively.

[26] Mr Clarey submits that he has had his personal leave record adjusted incorrectly by Coles but does not argue that he has not received his correct personal leave accrual under the 2018 Agreement. On the basis that Coles are complying with the personal leave accrual provisions of the 2018 Agreement (which Mr Clarey does not dispute is occurring), there can be no dispute arising from 2018 Agreement for the Commission to arbitrate. In essence, as submitted by Coles, Mr Clarey’s dispute relates to whether he has received his correct personal leave entitlement under the 2012 Agreement, an expired agreement which has ceased to operate, and cannot therefore be dealt with by the Commission under the dispute resolution provisions of the replacement 2018 Agreement.

[27] The fact that Coles credited Mr Clarey 10 days personal leave on his anniversary date and then removed this credit shortly thereafter while Mr Clarey was covered by the 2018 Agreement does not give rise to a dispute under the 2018 Agreement. Mr Clarey has not asserted that the 2018 Agreement provides an entitlement to 10 days personal leave on his anniversary date.

[28] If, as Mr Clarey submits in his written reply submissions, he seeks to know whether the 2018 Agreement has been properly applied to himself, 18 it is self-evident from subclause 9.6.4 that he accrues his personal leave progressively on commencement of the 2018 Agreement which Coles have applied to his personal leave credits.

[29] While Mr Clarey’s personal leave entitlement is set out in the 2018 Agreement and before its commencement (on 19 August 2019) the 2012 Agreement, Mr Clarey also submits that his dispute is in relation to the NES, which he states Coles has not complied with, in breach of s.61(2) of the Act. There is no dispute between the parties over the interpretation of the NES minimum entitlement in respect of personal leave, with both parties accepting that 10 days of paid personal leave must accrue for each year of service, there is no requirement for the Commission to make the same finding.

[30] While it should be a relatively simple record keeping exercise to determine whether Mr Clarey was paid his personal leave under the 2012 Agreement in advance (following completion of his first 12 months of employment), Mr Clarey remains unconvinced that this in fact occurred. 19 This matter then remains a question of enforcement of the 2012 Agreement based on Mr Clarey’s belief that he was never credited with 10 days personal leave in advance on his anniversary date, which Coles disputes.

[31] Mr Clarey indicates in his written submissions of 6 November 2020, 20 that he may apply to either the Small Claims Division of the Federal Circuit Court or the General Division of the Federal Circuit Court to recover the alleged personal leave owed and further, seek civil penalties. There is no doubt that Mr Clarey may bring proceedings in a court (including an eligible State or Territory Court) to prosecute his contention that he has been deprived of personal leave accrued under the 2012 Agreement,21 providing he does so within the prescribed time limit.22

[32] Based on the above findings, the Commission does not have the requisite jurisdiction to arbitrate the dispute or otherwise deal with it under the 2018 Agreement, nor is there any issue to resolve arising from any provision of the NES as Mr Clarey’s minimum personal leave entitlement under the NES is not in contention.

DEPUTY PRESIDENT

Dealt with on the written submissions filed by the parties

Printed by authority of the Commonwealth Government Printer

<PR725940>

 1   Second paragraph of document accompanying application

 2   At [35]

 3   Section 54 of the Act provides that an Agreement operates from 7 days after approval or a later date if specified in the Agreement. Clause 1.3 of the 2018 Agreement specifies 19 August 2019.

 4   Subclause 9.6.2

 5   Subclause 9.6.4

 6   Coles F1 at [7]

 7   20 November 2020

 8   22 November 2020

 9   At [24] and at [18c] of Submissions in Reply of 24 November 2020

 10   PR525535

 11   No specific clause in the 2012 Agreement is referred to by Coles as providing this benefit

 12   Coles’ F1 at [5-6]

 13   Simplot Australia Pty Ltd v Australian Manufacturing Workers’ Union (AMWU)[2020] FWCFB 5054

 14   Submissions of 20 November 2020 at [2(b)]

 15   Written submissions of 24 November 2020 at [23]

 16   At 2.1

 17   Submission attached to F10 application

 18   At [10]

 19   Submissions in reply at [17]

 20   At [34]

 21   See s.50 of the Act

 22   See s.544 of the Act