DECISION

Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date

Mr Loukas Kakogiannis
(AG2018/4849)

Retail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 17 OCTOBER 2018

Application for termination of the Woolworths National Supermarket Agreement 2012 – application for the production of documents – substantive application not yet programmed – current ballot of employees for new Agreement – whether order for production premature – reasonable belief that documents will support evidence in substantive application – order not granted in form proposed – refined order more focussed and less onerous on employer – order made.

[1] On 1 October 2018, Mr Loukas Kakogiannis, the applicant in an application, pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), for the termination of an enterprise agreement after its nominal expiry date (the ‘substantive application’), lodged an application (F52) seeking orders for the production of documents in respect to his substantive application. The Agreement sought to be terminated is the Woolworths National Supermarket Agreement 2010 [AE897808] (the ‘2012 Agreement’) and the respondent employer is obviously Woolworths Group Ltd (‘Woolworths’).

[2] The application follows an earlier production of documents request, made by email on 21 September 2018, by Mr J Cullinan, Secretary, Retail and Fast Food Workers’ Union (‘RAFFWU’) who is representing Mr Kakogiannis, in the substantive application. This request was not made in accordance with the Fair Work Commission Rules 2013 (r 8(2) and 54(1)) and was correctly refiled on 1 October 2018. I also note a s 229 application, also filed by Mr Cullinan on 24 September 2018 (B2018/868), seeking to have the Commission make bargaining orders, was discontinued before the Commission convened a conference on 2 October 2018 to discuss the application.

[3] It is necessary to give some context to this application and the substantive application. For some eight months, Woolworths has been negotiating with the principal employee organisation, the Shop, Distributive and Allied Employees’ Association (the ‘SDA’), two other registered employee organisations, RAFFWU and nominated employee bargaining representatives, for a new enterprise Agreement (the ‘proposed Agreement’) to cover the terms and conditions of over 100,000 employees across Australia employed in Woolworths’ stores and associated entities. As I understand it, these negotiations have resulted in an ‘in principle’ agreement being reached between Woolworths and all of the registered employee organisations. This ‘in principle agreement’ has been put to employees for approval in a ballot which opened on 11 October and closes on 22 October 2018. While RAFFWU has been negotiating separately with Woolworths, it is plainly apparent it does not support the ‘in principle’ agreement, opposes the proposed Agreement which is being voted upon by the employees and will oppose the Agreement’s approval by the Commission, if, and when the proposed Agreement comes before the Commission for approval (assuming the employees vote in favour of its approval), pursuant to s 185 of the Act.

[4] Back to the present application. Mr Kakogiannis is employed by…

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.

Keep reading for free

Create a free CaseChat account to read Mr Loukas Kakogiannis and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FWC 6361
Decision Date: 17 OCTOBER 2018

CaseChat Overview and Summary

The Fair Work Commission was required to determine whether an order should be made for the production of documents in support of an application by Mr Loukas Kakogiannis, who sought to terminate an enterprise agreement after its nominal expiry date. The application was brought pursuant to s 590 of the Fair Work Act 2009, which allows the Commission to order the production of documents in relation to any matter before it, in such manner as it considers appropriate. The applicant sought the production of documents created by the respondent, Woolworths, over certain periods, which were considered to have relevance to the substantive application. Woolworths opposed the orders, arguing that the application was premature and that the orders sought were overly broad and likely to constitute a fishing expedition. The Commission considered the principles and statutory provisions applicable to the exercise of its discretion to order the production of documents, and balanced the interests of the parties in light of the evidence and submissions presented. The Commission found that while the applicant had reasonable grounds to seek the termination of the enterprise agreement, the orders sought were not appropriate at this stage of the proceedings, and varied the orders to require the production of a more narrowly defined set of documents. The Commission made an order for the production of specific documents to the Commission, to be provided by a specified date, and listed the substantive application for mention and directions.

Orders