Mrs Penelope Vickers

[2016] FWC 8853

[2016] FWC 8853

FAIR WORK COMMISSION

STATEMENT AND INTERIM

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, 22 NOVEMBER 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:

• 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).

RELEVANT LEGISLATIVE PROVISIONS

[2] The Commission must be satisfied that the requirements in s.225 and s.226 of the Act are met prior to approving the termination of the Agreement. These sections are set out as follows:

[3] Section 225 of the Act provides as follows:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

[4] 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.

STATEMENT

[5] This matter was listed for Mention in Brisbane on 21 November 2016. Prior to the Mention, on 18 November 2016, correspondence was received from the legal representative acting on behalf of the Shop, Distributive and Allied Employees Association – Federal Branch (SDA), which was copied to the Applicant and other Respondents.

[6] This correspondence proposed that enterprise bargaining between Coles and any relevant bargaining representatives commence, and further, that any Directions set in relation to the substantive application accommodate that bargaining process. The SDA stated that the current application should stand adjourned while the bargaining process was engaged in, with regular reports to the Commission to ensure bargaining was progressing. It was submitted by the SDA that to engage in both the process with respect to the current application and bargaining would be time consuming and costly.

[7] The parties stated their views in respect of this proposal at the Mention on 21 November 2016. The representative for Coles noted that Coles had not agreed to bargain, or initiated bargaining (and provided further reasons for such). The Applicant opposed the proposal to adjourn the matter and submitted that the application and any bargaining for a new agreement could occur concurrently.

[8] The SDA’s correspondence is acknowledged, however, it is considered that there is an obligation to progress the application and this does not act as an impediment to any party electing to negotiate a new agreement. This approach is consistent with prior practice of the Commission for matters of this type 1.

[9] At the Mention, the course for the preparation of evidence in relation to s.226(b)(i) and (ii) (the views and circumstances of employees, each employer and employee organisation and the likely effect of termination), was also discussed. Mr Wood, on behalf of Coles, proposed some amendment to the Commission’s draft Directions, taking into account a range of matters that Coles submitted were relevant to the progress of the application. Mr Wood also referred to the preparation of witness evidence to be given on behalf of Coles in the substantive hearing.

[10] The Applicant provided a document entitled “Additional Directions sought by the Applicant” which included a request for discovery of certain documents.

[11] After consideration of the matters raised by the parties, the following Interim Directions were consented to:

INTERIM DIRECTIONS IN RELATION TO DOCUMENTS SOUGHT BY APPLICANT

[12] These Interim Directions are set in respect of documents sought by the Applicant in relation to the calculations, comparisons and the survey relevant to the evidence to be brought of the views and circumstances of employees including the likely effect of the termination. The documents sought by the Applicant are to prepare and inform the setting of Further Directions for the filing of evidence in respect of those matters to be considered under s.226 of the Act.

APPLICANT

[13] The Applicant is to file the list of documents as sought from Coles (relevant to the calculations, comparisons and survey of employees), and provide an outline of the reasons for seeking such, by 3:00pm on Monday 28 November 2016.

RESPONDENT

[14] Coles and any interested Respondent party is to provide their response to the list of documents sought by the Applicant, and indicate in what timeframe any such documents could be provided, by 3:00pm on Monday 5 December 2016.

OTHER MATERIAL SOUGHT BY APPLICANT

[15] The Applicant is to confirm by 3:00pm on Friday 25 November 2016, the timeframe for provision of the submissions in relation to those documents set out at point 3 of the “Additional Directions sought by the Applicant” document.

FURTHER DIRECTIONS FOR THE FILING OF EVIDENCE UNDER S.226

[16] Upon the discharge of the above Directions, the Directions for the filing of the calculations, survey of employees and evidence for the substantive hearing will be provided to the parties in draft form, and if necessary, the matter will be brought on for a further Mention.

[17] Accordingly, parties are on notice that Directions will be set for the filing of evidence for the substantive hearing and parties should be preparing their materials and evidence in order that these further Directions may be met in a timely manner.

ENQUIRIES

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

COMMISSIONER

 1   Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540.

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