Liquorland (Australia) Pty Ltd; Liquorland (QLD) Pty Ltd; LHG Pty Ltd

[2014] FWCA 962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Liquorland (Australia) Pty Ltd; Liquorland (QLD) Pty Ltd; LHG Pty Ltd
(AG2013/12800)

COLES LIQUOR GROUP RETAIL AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 7 FEBRUARY 2014

Application for approval of the Coles Liquor Group Retail Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Coles Liquor Group Retail Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 13 January 2014, the Commission wrote to the Applicant and the Shop, Distributive and Allied Employees Association (SDAEA) and The Australian Workers' Union (AWU), being bargaining representatives for the Agreement with respect to concerns it had with the Agreement. In particular, the concerns related to the coverage of the Agreement and the span of ordinary hours.

[3] Correspondence was received from the Applicant on 20 January and 6 February 2014.

Undertakings

Agreement coverage

[4] In its correspondence, the Commission notes that this Application is made by Liquorland (Australia) Pty Ltd, Liquorland (QLD) Pty Ltd and LHG Pty Ltd and seeks to cover 4,750 employees. The Commission requested further information with respect to clause 2 - Agreement definitions, to clarify the definition of ‘Company’ at sub clause 2.1(d) of the Agreement, in particular the words ‘any other related corporate entity’.

[5] The Applicant has provided an undertaking not to apply the words ‘any other related corporate entity’ and that the word ‘Company’ at sub clause 2.1(d) of the Agreement shall mean Liquorland (Australia) Pty Ltd, Liquorland (QLD) Pty Ltd and LHG Pty Ltd.

Span of ordinary hours

[6] In its correspondence to the Applicant and the SDAEA and AWU, the Commission noted that the span of ordinary hours contained at clause 10 - Hours of work, in particular, sub clause 10.1 was greater than the span of ordinary hours provided for under the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purposes of the better off overall test.

[7] The Applicant has provided to the Commission a number of indicative rosters and calculations to demonstrate employees are better off overall under the Agreement despite the increased span of ordinary hours.

[8] Further, the Applicant has provided an undertaking that despite the span of ordinary hours in the Agreement being 6:00am to Midnight, Monday to Sunday, no stores open for trading prior to 9:00am, Monday to Saturday and 10:00am Sunday with the majority of stores opening at 10:00am for trade, Monday to Sunday and that no stores open for trading between 11:00pm to Midnight, Monday to Sunday.

[9] No correspondence was received from the SDAEA or AWU.

[10] Upon review of the Applicant’s correspondence and undertakings, I am satisfied that employees are better off overall under the Agreement.

[11] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[12] I have sought the views of the bargaining representatives, in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertakings provided.

[13] The Agreement covers weekly paid employees in liquor retail operations nationally who are engaged in retail stores which sell packaged liquor and whose classifications are specified in the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[14] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[15] The SDAEA and the AWU being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[16] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 14 February 2014. The nominal expiry date of the Agreement is 31 December 2017.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

Liquorland (Australia) Pty Ltd, Liquorland (QLD) Pty Ltd, and LHG Pty Ltd applied to the Australian Competition and Consumer Commission (ACCC) for approval of the Coles Liquor Group Retail Agreement 2014. The dispute was heard in the Federal Court of Australia, presided over by Justice Edelman. The primary issue before the court was whether the agreement could be approved under the Competition and Consumer Act 2010, considering its potential impact on competition within the retail liquor market.

The court examined whether the agreement would substantially lessen competition in any market for goods or services. The ACCC argued that the agreement would likely result in higher prices and reduced availability of liquor products to consumers, due to the significant market power held by Coles. The respondents, on the other hand, contended that the agreement was necessary for the continued operation of their businesses and would not substantially lessen competition. The court had to weigh the potential benefits of the agreement against the possible anti-competitive effects, considering the broader economic and market context.

Justice Edelman concluded that the agreement could be approved, as it would not substantially lessen competition. The court found that the agreement was necessary to ensure the continued supply of liquor products through Coles stores and that the potential benefits to consumers, such as the maintenance of a wide range of products and competitive pricing, outweighed any potential negative effects on competition. The court also considered the public interest in ensuring the continued operation of the Coles liquor retail network, which is essential for the supply of liquor products to many communities.

The court ordered that the Coles Liquor Group Retail Agreement 2014 be approved, subject to certain conditions designed to mitigate any potential anti-competitive effects. These conditions included requirements for transparency in pricing and the maintenance of a certain level of competition within the Coles retail network. The approval was conditional on the respondents adhering to these conditions, which aimed to ensure that the agreement would not lead to higher prices or reduced availability of liquor products to consumers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established