Mrs Penelope Vickers

[2016] FWC 9051

[2016] FWC 9051

FAIR WORK COMMISSION

STATEMENT AND FURTHER

DIRECTIONS

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

Mrs Penelope Vickers
(AG2016/3797)

COMMISSIONER SPENCER BRISBANE, 16 DECEMBER 2016

Application for termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011.

[1] An application has been filed by Mrs Penelope Vickers (the Applicant) seeking termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 (the Agreement). A number of Respondents have, to date, made appearances in the matter. Those parties are as follows:

[2] Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd (Coles);

• The Shop, Distributive and Allied Employees Association – Federal Branch (SDA);



• The Australian Workers’ Union - Queensland Branch (AWU); and



• The Australasian Meat Industry Employees Union (AMIEU) - Federal and Queensland Branch.

(collectively, the Respondents).

[3] This Statement and Further Directions are issued following the Statement and Interim Directions dated 22 November 2016 (PR588382).

DOCUMENTS AND MATERIAL FOR THE PREPARATION OF SUBMISSIONS IN RELATION TO S.226

[4] In accordance with the course set by the Interim Directions dated 22 November 2016 (PR588382), the proposals and submissions of the parties have been considered in relation to the provision of material pursuant to s.226(b) (i) and (ii) of the Act.

[5] Section 226 of the Act provides as follows:

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[6] It is not considered necessary in the determination of this application, considering the above provision that thousands of actual employment and working hours and earning records of individual employees, who have not endorsed the provision of such to a range of third parties, are to be provided.

[7] Accordingly, the alternative proposal (set out in correspondence on behalf of Coles dated 5 December 2016) is to be adopted (with some amendments), with the opportunity, as per that proposal, for the Applicant to provide a response on the proposed roster material provided as per the below:

“Coles proposes to provide the Applicant and the Commission with sufficient information to allow for a comparison of the kind comtemplated by paragraph [7](c) of the Commission’s Draft Directions.

This will comprise sample rosters for a four-week roster cycle, reflective of typical hours worked. They will be provided for:

1. each classification contained in the 2011 Agreement; and

2. where applicable, each type of employment (i.e. full-time, part-time, casual and ‘shiftworkers’).

These rosters are likely to be drawn from a variety of stores with a variety of trading hours.

In order to avoid any challenge made by the Applicant as to the suitability of the material, in a way which will distract from the substantive proceedings, Coles suggests that the Applicant be given an opportunity to assess the above. We suggest this process occur prior to undertaking any actual calculations, and indeed before any material is provided to team members for their views.

Accordingly, the following process is suggested:

1. By 4:00pm on Friday 10 February 2017, Coles files and serves a summary of the proposed rosters, together with an outline of the basis on which the rosters were chosen. The summary is to include for each roster: the classification; the employment type; the number of hours worked; the days on which the work falls; and the characteristics of the store (for example, the State, trading hours, and whether it is metro or regional)

2. By [date], the Applicant provides a response to the proposed Coles rosters.

3. Subject to the Applicant’s response, the matter is listed for a further Mention and Interim Hearing in order to determine the roster material upon which calculations will be based.

4. Subject to [3], by [date] the rosters be provided to the Applicant”

DIRECTIONS

[8] The Commission Directs as follows:

[9] By 4:00pm on Friday 10 February 2017, Coles is to file and serve the actual rosters they propose should form the basis for the comparison, together with an outline of the basis on which the rosters were chosen. A summary is also to be included for each roster, specifying: the classification; the employment type; the number of hours worked; the days on which the work falls; and the characteristics of the store (for example, the State, trading hours, and whether it is metro or regional). This should include relevant information for casual employees and overtime information.

[10] By 4:00pm on Friday 3 March 2017, the Applicant is to provide a response to the proposed Coles rosters.

[11] At 10:00am on Friday 24 March 2017, the matter will be listed for a further Mention and Interim Hearing to confirm the roster material upon which calculations will be based and deal with any related outstanding issues.

[12] The Directions for the filing of the calculations, survey of employees and evidence in relation to s.226 for the substantive hearing will be confirmed as a result of the Mention to be held as per [11] above. Parties should be able to propose dates at the Mention for the provision of this material.

STATEMENT - ADDITIONAL DOCUMENTS SOUGHT BY APPLICANT RELATING TO 2014 AGREEMENT APPROVAL

[13] In accordance with the course set by the Interim Directions dated 22 November 2016 (PR588382), the Applicant filed an outline of reasons in relation to a series of documents that was sought with respect to the her claim for retrospective payment of any backpay, that may result from the termination of the 2011 Agreement, as sought by the Applicant.

[14]  The Commission has considered the submissions of the Applicant, the Applicant’s Affidavit and the list of annexures attached to the Affidavit, and the list of documents being sought to be discovered from the Respondent Coles.

[15] The documents sought by the Applicant are summarised in her submissions of 15 December 2016 as follows:

“In summary, the documents the Applicant seeks to be disclosed are all documents associated with development and sanctioning of the Coles Store Team Enterprise Agreement 2014 (‘2014 EBA’) under the care or control of Wesfarmers Limited ABN 28 008 984 049 and its controlled entities including Coles (the Wesfarmers Group).”

[16] In terms of the relevance of the documents to the current proceedings, the Applicant stated that she “seeks orders for the termination of the 2011 EBA with retrospective effect in accordance with sections 226 and 227 of the Act”.

[17] The Applicant submitted that the documents are required in relation to any Orders that the Commission may make as a result of the termination of an expired enterprise agreement, and these Orders may have retrospective effect. The Applicant conceded that exceptional circumstances are required before the Commission will make an Order that has retrospective effect. The Applicant contended that exceptional circumstances would exist if it was found “that Coles has either deliberately or recklessly mislead the Commission and the employees with respect to the proposed 2014 EBA”. The Applicant provided further grounds and reasons in relation to the 2014 Agreement and its implementation by Coles.

[18] The Applicant stated:

“29. It is reasonably open to the Commission to conclude on the material and proceedings before it, that had Coles complied with the pre-approval requirements under the Act or had the Statutory Declaration fully disclosed the employees that would have been worse off, the 2014 EBA would not have been approved and subsequent action would have been taken by the Applicant (if not other employees) to terminate the 2011 EBA.

30. However, the need to set aside the approved 2014 EBA postponed the ability of Coles employees to set aside the 2011 EBA meaning that very many (if not most) continue to be paid less than the Award.”

[19] The termination of the Coles 2014 Agreement has been the subject of Full Bench proceedings in Duncan Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo; Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo 1.

[20] The Applicant submitted that Coles’ conduct leading up to the application for approval of the 2014 Agreement was not examined by the Full Bench during the hearing of the appeal. It has been taken into account that Coles, in their correspondence dated 28 November 2016, noted that the Applicant was likely to raise serious allegations in relation to the approval of the 2014 Agreement, which Coles would need time to consider.

[21] Having considered these matters, it is determined at this time that an Order for the discovery of these documents is a matter related to remedy of the application and will not be granted at this time. Whilst it is noted that previous Directions contemplated further submissions in response from Coles in relation to this issue, these are considered unnecessary given it is preferable that the parties’ time is directed to progressing the substantive proceedings. However, it will be open to the Applicant to again revisit the Orders sought for the discovery of documents, subject to the outcome of the termination of Agreement proceedings.

ENQUIRIES

[22] Please direct all enquiries to the Associate to Commissioner Spencer on [phone] or [email protected].

COMMISSIONER

 1   [2016] FWCFB 2887.

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