Mr Loukas Kakogiannis

[2018] FWC 6361

[2018] FWC 6361

FAIR WORK COMMISSION

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 Woolworths in Moorabbin, Victoria. He seeks by way of the substantive application to terminate the 2012 Agreement which expired on 30 June 2015, but obviously remains in force and operation until it is replaced (s 58). The termination is sought to have retrospective effect from the commencement date of the 2012 Agreement. It is unnecessary to set out all of the grounds advanced by Mr Kakogiannis in support of his substantive application and no doubt, these grounds will be hotly contested in complex proceedings, given the significance of what Mr Kakogiannis is seeking. In short, Mr Kakogiannis claims the 2012 Agreement could not have passed the BOOT at the time it was approved and as a result he, and presumably many thousands of other employees, on his construction, are significantly financially ‘worse off’ than if the terms and conditions of the relevant Modern Award, the General Retail Industry Award 2010 (the ‘Award’), had been applied to them since 2012 to the present time. Moreover, these losses are ‘ongoing’ given the continued operation of the 2012 Agreement.

[5] The Commission listed the substantive application for mention and directions on 14 September 2018. All parties appeared (except for the Australasian Meat Industry Employees’ Union), or were represented and put their preliminary views in respect to the substantive application. The matter was adjourned to allow RAFFWU to consider such further procedural applications it might seek to lodge to progress the matter. No directions were sought at this point.

[6] The application was listed for hearing on 25 September 2018, but did not proceed in order for RAFFWU to rectify its notice to produce request. Attempts at listing the notice to produce application were made shortly after its filing on 1 October 2018. However, due to Mr Cullinan’s and RAFFWU’s Counsel’s unavailability, the matter was listed for hearing on 11 October 2018.

[7] At the hearing, Ms S Kelly, of Counsel appeared for RAFFWU with Mr Cullinan and Mr Kakogiannis. Ms T Firth Solicitor (Ashurst) appeared with Ms L Radjenovic for Woolworths, with permission granted for both parties to be legally represented, pursuant to s 596 of the Act. Although all parties were advised of the hearing, no other party sought to put any submissions in the matter.

[8] The order sought the following documents be provided to the Commission by Woolworths (I include the definitions):

Definitions

Agreement or agreement means the Woolworths National Supermarket Agreement 2012.

Proposed Agreement or proposed agreement means the document that was approved or purportedly approved by the Fair Work Commission as the Woolworths National Supermarket Agreement 2012.

High-level documents means documents in the nature of reports, briefings, reviews, meeting minutes, summaries, memoranda and group correspondence, but does not include documents relating to individual or specific persons, transactions or incidents.

Modern Award means the General Retail Industry Award 2010.

Relevant Period means the period 1 January 2012 to 1 January 2013.

Categories

1. All High-level documents held by the respondents created in the relevant period evidencing consideration, discussion, observation or comment by Woolworths Group about:

a. the relative cost of wages under the proposed agreement compared to the Modern Award or any other award; and/or

b. the application of the better off overall test to the agreement or the proposed agreement.

2. All documents held by the respondents created in the relevant period evidencing development, consideration or discussion by Woolworths Group of a wage comparison between the proposed agreement and/or the agreement and other instruments including but not limited to the “Wage Comparison” at Attachment 3 to the F17 and F16 documents lodged by the Respondent’s at the time of applying for approval of the agreement with the Fair Work Commission.

3. All documents held by the respondents created in the relevant period describing whether, and how, the proposed agreement or the agreement met the better off overall test.

4. All documents held by the respondents created in the relevant period which purport to compare the terms and conditions of the proposed agreement or the agreement to the terms and conditions of the Modern Award or any other award.

5. All High-level documents held by the respondents created in the period 1 June 2016 and 23 August 2018 evidencing consideration, discussion or determination by Woolworths Group of a comparison between:

a. the wages payable under the agreement and wages payable under the General Retail Industry Award; or

b. wages paid to employees covered by the agreement and wages payable under the General Retail Industry Award.

Relevant Statutory Provisions and Principles

[9] The parties are ad idem as to the statutory provisions to be applied to this application and the principles to be taken into account by the Commission as to whether to make the orders sought, or to set aside the orders, in whole or in part.

[10] An application of this kind is made under s 590 of the Act, which relevantly provides as follows:

590 - Powers of the FWC to inform itself

(1)  The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2)  Without limiting subsection (1), the FWC may inform itself in the following ways:

(a)  by requiring a person to attend before the FWC;

(b)  by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c)  by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d)  by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e)  by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f)  by conducting inquiries;

(g)  by undertaking or commissioning research;

(h)  by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).

[11] In addition, Rule 54 of the Fair Work Commission Rules 2013 provide that a party in a matter before the Commission may, by lodging an application (Form F52) and draft order, request that the Commission inform itself in relation to the matter, by issuing an order requiring a person to provide copies of documents or records.

[12] It is necessary to highlight the words ‘the Commission may… inform itself’. In my view, the Commission’s discretionary powers to order the production of documents must be read with the preamble of ss 590(1) and repeated in s 590(2); namely, for the Commission to inform itself in relation to any matter before it in such manner, as it considers appropriate. To give the words ‘may inform itself’ their ordinary English meaning, is to distinguish the phrase from ‘informing someone else or some other entity’. It follows that a party’s filing of an application and proposed orders does not mean that the orders will be automatically granted, merely because that party wishes to ‘inform itself’.

[13] Of course, most notices to produce (as here) usually arise from a party’s application (F52) and the requirement under the Rules that the application be accompanied by the draft order sought. This does not derogate from the underlying purpose of s 590 for the Commission to inform itself (not some other person or entity) of any matter before it and in such manner as it considers appropriate, which may assist the Commission in determining a matter before it. I am fortified in this view by two other factors.

[14] Firstly, it is abundantly clear from the wording of the section, that the Commission’s powers under s 590 may be exercised by the Commission on its own initiative. Indeed, it often does so, particularly where the Commission for example, forms the view that a person be required to attend before the Commission and give evidence because the person may give relevant or possess relevant information necessary for the proper determination of a matter.

[15] Secondly, documents required to be produced by order, are produced to the Commission – not to the applicant to the application or anyone else and the documents remain in the custody of the Commission (R 54(3)). Access to such documents may be restricted by the Commission to particular persons, or made available under certain conditions.

[16] This assessment is also consistent with the well-known comments of Munro J in the Federated Clerks Union of Australia, Clerks' (Alcoa  of Australia - other than Mining and Refining) Consolidated Award 1985, Clerks (Alcoa  of Australia - Mining and refining) Consolidated Award 1985 [Print H2892]  (the ‘Clerks Award’) that an order to produce should not be made if it is a ‘fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but an attempt to discover whether there is a case at all.

[17] As to the principles to be applied by the Commission. Firstly, broadly speaking, the Commission will be guided, in the exercise of its discretion under s 590 of the Act, by the practice followed by the Courts in civil proceedings when issuing subpoenas; see: Kennedy v Qantas Ground Services [2018] FWCFB 3847 at [23].

[18] Secondly, the documents sought by the applicant must have apparent relevance (not necessarily be directly relevant) to the issues in the substantive proceedings; see: Clermont Coal Operations v Brown & Dews and Others [2015] FWCFB 2460 a [19].

[19] Thirdly, access to the documents sought must be for the purpose of supporting the applicant’s case which is advanced in the substantive proceedings, not to explore if there is a supportable case that might be potentially advanced; see: Clerks Award, per Munro J and Kirkman v DP World Melbourne Ltd [2015] FWCFB 3995 at [19].

[20] Fourthly, the documents sought to be produced must be described with sufficient particularity; see: Commission for Railways v Small (1938) 38 SR (NSW) 564, [547] to [575].

[21] Fifthly, the burden of producing the documents sought must not be oppressive; see: Seven Network v News Ltd No 5 [2005] FCA 510 and Esso Australia v Australian Workers’ Union (AWU), Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)  [2017] FWCFB 2200 at [6].

[22] Sixthly, the Commission would not exercise its discretion to make the orders if it appears the request is vexatious, frivolous or an abuse of process; see: R v Marks; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation – ‘the BLF’ – (1981) 147 CLR 471. See also my consideration in Staniforth v Qantas Airways Ltd [2018] FWC 934 at [11]-[12].

SUBMISSIONS

For the applicant

[23] Ms Kelly submitted that the substantive application is advanced on three bases:

1. Whether employees covered by the 2012 Agreement are earning less in real wage terms than they would earn under the Award. Mr Kakogiannis is just one example of this.

2. Whether employees would be entitled to a higher guaranteed safety net of fair, relevant and reasonable minimum wage terms and conditions, not just wages.

3. Whether the termination of the 2012 Agreement should be from 1 November 2012.

[24] Ms Kelly set out the principles to be taken into account by the Commission in the exercise of the broad discretionary power to inform itself as it sees fit. This requires a balance as to the reasonableness of the burden imposed on Woolworths and the invasion of those private rights with the public interest in the due administration of justice and ensuring all relevant material is available to the parties to enable to them to advance their respective cases.

[25] In dealing first with Category 5, Ms Kelly put that ‘high level’ documents are sought which were created or held by Woolworths for the period 1 June 2016 to 23 August 2018. The two categories sought pick up wages under the Award and the 2012 Agreement and wages actually paid to employees covered by the 2012 Agreement and the wages payable under the Award. In this respect, Ms Kelly said the applicant relies on the analysis of his own circumstances, the case of an actual unnamed 17 year old part-time employee and a submission of the SDA to a 2005 Senate Inquiry. Each of these analyses disclosed that employees are paid less under the Agreement than the Award. However, the documents are sought to establish the extent of this underpayment which will be a consideration of whether terminating the 2012 Agreement is not contrary to the public interest as well as the considerations under s 226(b) of the Act.

[26] Ms Kelly submitted that the request is confined and limited because there is likely to be a very small category of documents captured by the request. Ms Kelly said that two ways of establishing the effect of the termination on the employees is the long way of assessing how each employee is affected, or the more convenient and less onerous way of accessing and analysing ‘high level’ documents to establish what process was undertaken and whether that process, involving briefings, summaries, memos or correspondence, established every employee ‘was better off overall’. There is no request for information about specific individuals.

[27] Ms Kelly stressed that there is no serious or unfair burden or prejudice to the employer, given the specialised knowledge documents sought must exist, are limited in their scope and are only for a period of 26 months.

[28] Ms Kelly submitted that the category 1 to 4 documents are necessary because of the retrospective termination sought by the applicant and what was claimed by the employer and the SDA at the time of approval that the 2012 Agreement met the BOOT, by relying on a Wage Comparisons document that contained indicative rosters. Ms Kelly submitted that it would be readily borne out that the material put before the Commission did not identify the roster patterns actually worked by employees and this situation would result in employees being worse off overall. This would be a matter directly relevant to whether the 2012 Agreement should be terminated retrospectively. Again, the request for high level documents in Category 1 is limited and confined to a 12 month period and would go to identify what Woolworths knew about the relative situation under the proposed Agreement, as compared to the Award and whether the Agreement, in fact, passed the BOOT.

[29] Ms Kelly noted Category 2 documents are not ‘high level’ and deal with the development, consideration and discussion of the wages comparison Woolworths undertook at the time.

[30] In answer to my query as to whether the inquiry might best be addressed by calling the deponent of the F17 statutory declaration to give evidence, Ms Kelly put that there could be no certainty that the deponent had all the relevant knowledge to satisfy the request more broadly. It will be the documents themselves which will inform the question of what institutional knowledge Woolworths had at the time. This is separate to the question of what was in the mind of the person who signed the F17. Both issues will be explored in the hearing in any event.

[31] Ms Kelly said that Category 3 deals with a specific and confined category as to whether and how the proposed Agreement met the BOOT. Category 4 picks up a different class of documents being a description that compares the terms and conditions of the proposed Agreement as against the terms and conditions of the Award.

[32] Ms Kelly submitted that the applicant cannot understate the seriousness of the questions the Commission will be required to consider, particularly going to the public interest. If the documents sought demonstrate some form of misrepresentation - inadvertent or otherwise - and it is proved one of Australia’s largest employers, had represented the 2012 Agreement ‘passed the BOOT’, when in fact it did not for a significant part of its workforce, the result was that some of the lowest paid workers have been paid less than they would have earnt under the Award for more than six years.

[33] Ms Kelly put that:

(a) the documents sought are clearly relevant;

(b) the order has sufficient particularity being confined to dates, topics and definitions;

(c) there is no serious, or unfair burden or prejudice to Woolworths. The documents are readily capable of identification and recovery within a short period; and

(d) the Commission would be satisfied the application is not vexatious, frivolous or an abuse of process.

[34] Ms Kelly anticipated the respondent would oppose the orders on the basis that employees are currently voting on a new Agreement commencing 11 October and, if the proposed Agreement is approved, then the substantive application will be otiose. Ms Kelly put that there is no guarantee the proposed Agreement will be made by a successful vote of the employees or that the Agreement will ultimately be approved by the Commission, which RAFFWU is confident will not happen. It is unlikely the approval proceedings will be resolved this year and termination proceedings can also take some time. In the meantime, the employees will continue to be deprived of real wages. Granting the orders will put the applicant in a position to prepare his case and the respondent will not be required to do anything until he does so. Therefore, it is Mr Kakogiannis who bears the risk if the proposed Agreement is ultimately approved and the work undertaken by, or for him, is lost. This is a choice he is prepared to accept.

[35] Ms Kelly also relied on the decision of the Full Bench of the Commission in Gangell v Labethal Abattoirs [2018] FWCFB 4344 (‘Gangell’) where it was observed that applications for the termination of agreements should be dealt with expeditiously, particularly where employees may be earning less than they would otherwise earn by being covered by the Award. This is not a mere assertion in this case. Ms Kelly said it is in the interests of justice that the two processes should be permitted to run in parallel and that Woolworths should not be permitted to gain some improper advantage by seeking to delay this application in the unlikely hope the proposed Agreement will be approved.

For Woolworths

[36] Ms Firth’s principal submission was that the F52 application is premature. Woolworth’s understanding of the substantive application is that it is currently adjourned indefinitely. Any F52 application ought not be granted until the substantive application has been discussed more fully and has been programmed accordingly.

[37] Ms Firth described how a replacement Agreement is presently being voted on by Woolworth’s employees. In the event the majority of employees vote in favour of the proposed Agreement, Woolworths will apply for the Commission to approve it. If approved, the 2012 Agreement will be terminated automatically by virtue of ss 54(2) and 58 of the Act. Putting aside the merits of the substantive application and the categories of documents which Mr Kakogiannis seeks, the Commission ought not exercise its discretion to make the order for production when in the coming weeks, it will become apparent whether the 2012 Agreement will be terminated by automatic operation of the Act. Making the order in this instance could constitute, at worse, an abuse of process as the exercise of actually finding and producing the documents would be frivolous in circumstances where a replacement Agreement is being made by employees and is then subsequently before the Commission for approval.

[38] Ms Firth submitted that Gangell can be distinguished from the circumstances here. In Gangell, a proposed agreement had been put to the employees for a vote, but the employees had voted it down. Here, the outcome of the vote is not yet known, but it will be known on 22 October 2018. Although it is true the Commission’s approval of the proposed Agreement (if it is made) may involve protracted proceedings, similarly, the substantive s 225 application could also involve lengthy proceedings.

[39] Ms Firth queried the urgency of this matter and the substantive application, given the substantive application was not filed until 23 August 2018, despite the 2012 Agreement nominally expiring on 30 June 2015 and where negotiations in respect to the proposed Agreement commenced in February this year. Indeed, RAFFWU and Mr Kakogiannis have attended bargaining meetings for the proposed Agreement.

[40] Ms Firth made alternative submissions in the event that the Commission finds against the respondent in respect to whether the F52 application should either be dismissed or adjourned, on the basis it is premature.

[41] Ms Firth dealt firstly with category five, which she described as being ‘extremely broad’. Woolworths disagrees with the applicant’s submission that a limited class of documents is being sought. In particular, ‘high hevel documents’ is defined to mean ‘reports, briefings, reviews, meeting minutes, summaries, memoranda and group correspondence’. This could capture any number of documents. It then refers to the period between June 2016 and August 2018 and seeks documents which were ‘created or held’ during that time. Thus, even if the documents were ‘held’ by the respondent in that period, they would be caught, despite not being created during that time. The reference to ‘consideration or discussion by the Woolworths Group as a whole’ makes this category incredibly broad, and could capture correspondence between any of the 100,000 employees within the Group, provided they met the ‘high level’ definition as well. In this case, Ms Firth said that Category 5 is of the nature of a ‘fishing expedition’ as described by Munro J in Clerks Award.

[42] Ms Firth then dealt with Categories 1 to 4. These categories essentially go to whether, in the event the Commission considers it appropriate to terminate the 2012 Agreement, the termination should be effective from its commencement date in November 2012. Ms Firth foreshadowed that Woolworths considers that there is significant jurisdictional doubt as to whether the Commission is able to terminate the 2012 Agreement from its commencement, given s 225 applications can only be made once agreements have reached their nominal expiry dates.

[43] Ms Firth added that Categories 1 to 4 may be relevant if the Commission considers it in the public interest to terminate the Agreement, but they are not relevant at this very preliminary point in the proceedings. These categories of documents are directed towards the circumstances at the time the 2012 Agreement was approved by the Commission. Ms Firth submitted that the question for whether or not to terminate an agreement is at the time the termination application is made, not by reference to the facts as they existed at the time the 2012 Agreement was sought to be approved by the Commission.

[44] Ms Firth also raised practical concerns of identifying which documents were ‘held’ by Woolworths in the period between 1 January 2012 to 1 January 2013. This could be an impossible task. Balancing the extent of the documents sought and the effort that would be required to obtain them, against the fact that there is a proposed Agreement currently before the employees for a vote, the application for an order to produce documents ought to be dismissed. In the alternative, it should be adjourned until such time as the matter has further progressed.

In reply

[45] Ms Kelly clarified that the applicant seeks documents in categories 1 to 4 on the basis that they are relevant to the following questions:

1. whether it is not against the public interest to terminate the 2012 Agreement;

2. whether it is appropriate to terminate the 2012 Agreement, taking into account all the circumstances of the individuals to whom the 2012 Agreement applies; and

3. whether the date of effective termination should be 1 November 2012.

The documents are not only relevant to when termination of the Agreement should take effect.

[46] In respect to the respondent’s submission that this application is premature, Ms Kelly stressed that the authorities make clear that these matters ought to be dealt with expeditiously. Although there is an agreement which is being voted on, there is no current application for approval of a replacement agreement before the Commission.

[47] Ms Kelly said Mr Kakogiannis did not accept that his substantive application has been adjourned indefinitely and he would be asking for the substantive application to be timetabled. Ms Kelly disagreed with Woolworth’s submissions that it will become clear whether a replacement Agreement will be approved within the coming weeks. As a practical reality, if the proposed agreement is opposed, it will involve evidence and submissions being filed and a number of days set down for hearing the matter.

[48] In reply to the submission that the substantive application may involve lengthy, protracted proceedings, Ms Kelly said ‘then let us get going’. If employees are being paid less under the 2012 Agreement than under the Award and presumably the respondent knows this to be true, then this is a further reason for the Commission to deal with the substantive application expeditiously. Even if a replacement Agreement is approved, it will not terminate the 2012 Agreement; rather the 2012 Agreement will cease to operate.

[49] In respect to Woolworths’ observation about when Mr Kakogiannis made the substantive application, the Commission has not yet heard the circumstances of when he came to know he may be being paid less than under the Award. Ms Kelly said that this is a surprising submission, given Woolworths had all the relevant information.

[50] Ms Kelly rejected Woolworth’s submission that the application for an order to produce was not sufficiently clear and required further discussion. The substantive application had been made, and included in the body of the application was the basis upon which the application was made and the request for it to have retrospective effect. Ms Kelly opposed the notion that the substantive application should be dealt with via a split hearing (although this had not been expressly put by the respondent), by firstly, dealing with whether termination should take effect, and if the Commission finds that it should terminate the 2012 Agreement, then the date it should take effect should follow. In any event, Ms Kelly submitted the documents are relevant to both s 226 and whether the discretion under s 226(b) should be exercised in favour of the applicant.

[51] Ms Kelly further submitted that the categories of documents which are sought are not as broad as the respondent contends. They are confined to the definition of ‘high level documents’. They plainly do not capture correspondence between employees. For the same reasons, the submission that it is a ‘fishing expedition’ must fail.

CONSIDERATION

[52] Deciding this matter has not been without some difficulty. On the one hand, there is some practical attraction to Woolworth’s submission that the F52 application is premature and should be dismissed or adjourned, in circumstances where a proposed replacement agreement is currently being voted on by the employees of Woolworths with the ballot to close on 22 October 2018 and with every expectation the Agreement will be voted up and quickly approved by the Commission; thereby rendering the substantive application otiose. Given the in-principle support of the proposed Agreement by the predominant Union covering employees to be covered by it, I agree there is a reasonable expectation of the proposed Agreement being made by a majority of the employees voting to approve it. Less likely, given the stated intention of RAFFWU to oppose the approval of the proposed Agreement, is the Commission’s approval of the Agreement will be quickly determined, even if the proposed Agreement is ultimately approved. I estimate that the minimum period it might take before a decision of the Commission to approve, or not approve any proposed Agreement, to be at least five to six months, without taking into account any subsequent appeal of the decision by the losing party. I base my assessment on the following assumptions:

•  close of ballot approving the Agreement: 22 October 2018;

•  1 week to prepare and file the employer’s F16, F17 and any supporting material;

•  3 to 4 weeks for the Agreement Triage Team to conduct their review and BOOT analysis of a complex Agreement, covering over 100,000 employees which is very likely to be opposed;

•  1 week to allocate the matter to a Member and for the Member to list the matter for a directions hearing;

•  7 weeks for the usual directions;

•  1 week to hearing;

•  minimum 3 to 4 days of hearing; and

•  decision reserved for at least 4 to 8 weeks in accordance with the Commission’s minimum timeliness benchmarks for contested enterprise agreement approval applications.

[53] Ironically, as Ms Kelly submitted, proceedings in termination applications under s 225 of the Act, will also ordinarily involve protracted and complex proceedings. On my inquiry, an Agreement with this extensive coverage and with contested issues to be determined by the Commission, including jurisdictional objections, it is likely to take many months before final determination of the substantive application.

[54] There is also some justification for Ms Firth’s submission that the applicant is hardly in a position to seek expedition of his termination application, when:

•  the 2012 Agreement expired on 30 June 2015 and his s 225 application was not filed until a further period of over three years; and

•  Mr Kakogiannis was issued with an NERR and he nominated the RAFFWU as his bargaining representative. That entity and Mr Kakogiannis have personally participated in bargaining for the new Agreement since February 2018.

[55] On the other hand, I consider that there is at least prima facie evidence that Mr Kakogiannis has reasonable grounds to assert he has been paid significantly less over many years under the 2012 Agreement, than if he had been remunerated according to the terms of the Award. It is also reasonable for him to believe and assert that he is not ‘Robinson Crusoe’ in that regard.

[56] I have also had regard to the following observations of the Full Bench in Gangell where it was said at [23] to [25]:

‘[23] We would also observe that the need to deal with an application expeditiously is particularly important in cases where, as here, there are assertions that employees to whom the agreement applies are at times earning less than under the relevant modern award. 

[24] Section 578 requires that in performing functions or exercising powers the Commission must take into account the object of the Act, which is to provide a balanced framework for cooperative and productive workplace relations that promotes economic prosperity and social inclusion for all Australians by (among other things):

‘(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders...’

[25] Subject to the application of all of the relevant considerations, it would be prima facie contrary to the object of the Act to permit an agreement that has passed its nominal expiry date to continue to operate in circumstances where its provisions as a whole are less beneficial than those provided by the relevant modern award.

[57] I have also taken into account the ordinary presumption that a competent application before the Commission should not be dismissed, stayed or adjourned indefinitely, based on another party’s assumption that separate and/or unrelated proceedings might be speedily resolved, let alone resolved in such a way as to materially impact on the survival or outcome of the other application. This is so because the Commission is required to perform its functions and exercise its powers in a manner that is fair and just (s 577(a)) and has an obligation to act judicially. When acting judicially, there is an obligation on the Commission to afford a party a reasonable opportunity to allow his or her case to be put; see: Application by Esso Australia Pty Ltd [2018] FWCA 6244 at para [12]-[16]. There may be exceptions of course, such as when there are relevant pending criminal proceedings or an employer entity is in liquidation. However, the circumstances here do not warrant an exception to the ordinary presumption.

[58] Further, I do not accept Woolworth’s submission that any date of retrospective operation of the Agreement, should only be determined after the Commission has determined whether the Agreement should be terminated at all. In my view, the requirement for the Commission to be satisfied that it would not be contrary to the public interest to terminate the 2012 Agreement is intrinsically linked and relevant to the question of whether the assertions of the applicant as to his significant loss of wages are made out and whether the extent and proportion of the total workforce is also affected by such losses, as a result of the 2012 Agreement being approved when it did not meet the BOOT.

[59] That said, I do not consider that the proposed orders should be made in the form proposed by the applicant. I accept Ms Kelly’s submission that the definition of ‘high level documents’ serves as a limitation. However, I also agree with Ms Firth’s submission that the definition could still potentially capture a vast number of documents. For example, ‘high level documents’ includes ‘documents in the nature… of group correspondence’. The term ‘group correspondence’ is not defined, and the words ‘in the nature of’ are highly ambiguous. Such ambiguous terms could increase the risk of an inadvertent breach of an order. Turning briefly to the ‘snapshot’ during which documents were ‘held’, Ms Firth submitted that this may prove to be an impossible task. I expect the Commission would be assisted by evidence relating to the capability of undertaking such a task (and this may be required if Mr Kakogiannis makes further F52 applications later in the proceedings). However, I anticipate that it would likely be a difficult task and would come at a significant cost and burden on Woolworths. While it is certainly true, as Ms Kelly observes, that Woolworths is a very large, well-resourced company, it logically follows that the amount of documents that would need to be ‘raked through’ is exponentially larger. These factors weigh against making the proposed order.

[60] In respect to Category 5, I suspect there are only a few hypothetical documents that would fall into the class of documents captured that could be relevant to the applicant’s substantive application; the ‘smoking gun’ as it were. Certainly, if there is a document which evinces that between 1 June 2016 and 23 August 2018, Woolworths calculated that employees were being paid less than under the Award, such a document would have apparent relevance to the substantive application; although such a document would not necessarily be probative. Even if such a document existed, it would not actually affect whether employees are being paid more or less than if they were being paid according to the Award. However, there is no evidence or suggestion which serves as a basis to assert such a document exists. Indeed, it is dubious that one does. Why, if an employer is in negotiations for a replacement Agreement, would it assess BOOT considerations of their current expired enterprise agreement against the Modern Award? Are they not focussed on the cost assessments of various offers and counter offers and whether the BOOT has been satisfied for the proposed Agreement? Although there may be such documents, it is not necessarily so. I do not consider that such a possibility outweighs the concerns I have as to the proposed wording of the order.

[61] Further, in my view, the issues to be considered by the Commission, presently as put by the applicant, do not require the breadth and generality of the items in Categories 1 to 5 at this time. I also consider that the documents sought over the period of 1 January 2012 and 1 January 2013 in respect to Categories 1 to 4 and the period 1 June 2016 to 23 August 2018 for Category 5, to be an onerous and unnecessary burden on Woolworths when the relevant issues can be assessed against what informed the respondent to attest that the 2012 Agreement met the BOOT, at the test time, being the time the application for approval was made (section 193(6)), and not at any subsequent time, including well after the Agreement’s nominal term has expired. I hasten to add that the production of the documents may be considered appropriate at a future stage in the proceedings. Given that I have not even programmed the substantive application, or issued directions, I believe that the wide scope and extent of the documents now sought is premature and unnecessary at this stage. In my view, the order I propose to make will be better targeted, less onerous and confined to the specific issues to be determined by the Commission under s 226 of the Act.

[62] Accordingly, I propose to vary the proposed order by setting it aside in full and order that Woolworths produce the following documents to the Commission:

‘All source documents which informed the answers provided to Questions 3.4, 3.5, 3.6 and 3.7 in the Employer’s F17 and the accompanying Wages Comparison document in matter AG2012/11791.’ 1

[63] I consider that this order is sufficient, at this stage, to enable the applicant to assess the strength and extant of his case against Woolworths. The documents will be required to be produced to the Commission by 4pm on Friday, 26 October 2018.

[64] The substantive application is to be listed for mention and directions at 9.30am on Monday, 29 October 2018 by telephone.

DEPUTY PRESIDENT

Appearances:

Ms S Kelly Counsel for the applicant.

Ms T Firth Solicitor (Ashurst) for the respondent.

Hearing details:

2018.

Sydney:

October 11.

Printed by authority of the Commonwealth Government Printer

<AE897808  PR701303 >

 1   I note the question to be answered in the current Form F17 at 3.6 is ‘Do you think the agreement passes the better off overall test?’ . That question was not in the Commission’s Form F17 until 2014 when the form was amended. However, in the Wages Comparison document, Woolworths and the SDA submitted that the Agreement passes the Better Off Overall Test.