DECISION

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, 14 OCTOBER 2016

Application for termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 – Threshold Issue – Does Applicant meet criteria for shiftworker under the Award – Relevant to comparison between Agreement and Award for substantive matter – consideration of ordinary hours under clause 27.2(b)(iii) and whether Coles is a “retailer” or clause is applied on store by store basis

Introduction

[1] This Decision relates to an application made by Mrs Penelope Vickers (the Applicant) pursuant to section 225 of the Fair Work Act 2009 (the Act). The application sought the termination of an enterprise agreement, the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 1 (the 2011 Agreement), after its nominal expiry date.

[2] The Applicant sought the termination of the 2011 Agreement on the basis that, if the 2011 Agreement was terminated, the General Retail Industry Award 2010 2 (the Award/GRIA) would be the applicable industrial instrument setting out her remuneration and entitlements. The Applicant stated, in relation to her particular roster, that she would receive a greater total amount of remuneration for the rostered work under the Award.

[3] Relevant to this application, a Full Bench, in the Decision of 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 3(Hart v Coles) found that the Coles Store Team Enterprise Agreement 2014-2017 (the 2014 Agreement) did not pass the Better off Overall Test. On 17 June 2016, the Full Bench issued an Order quashing the Decision to approve the 2014 Agreement4. The Order quashing the approval of the 2014 Agreement took effect from 5 July 2016.

[4] The Applicant (in the current proceedings) commenced employment with Coles Supermarkets Australia Pty Ltd on 7 September 2012 on a part-time basis. The Applicant’s contract stated she will be rostered to work 48 hours over a 4 week cycle (an average of 12 hours per week) and that her rate of pay and employment conditions were as set out in the 2011 Agreement. The Applicant is currently employed to work 3 shifts per week totalling 12 hours, but the Applicant stated that she is regularly rostered to work additional shifts, and that these additional shifts are paid at casual rates. The Applicant also stated she is requested on occasion to work additional hours, involving coming in to work earlier or staying back late, after the finish of her rostered shift.

[5] The matter was initially brought on for Mention, and a range of interested parties sought to be heard, including Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd (Coles), the Shop, Distributive and Allied Employees Association…

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.

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Details

Case: [2016] FWC 6350
Decision Date: 14 OCTOBER 2016

CaseChat Overview and Summary

Mrs Penelope Vickers has applied to the Fair Work Commission for the termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011. The dispute pertains to the classification of the applicant as a shiftworker under the Retail Award, which is relevant to the comparison between the agreement and the award for substantive matters. Specifically, the case examines whether the applicant meets the criteria for a shiftworker under the award and the application of certain clauses within the agreement.

The legal issues before the court included whether Mrs Vickers was a shiftworker within the meaning of the award, and if so, whether the ordinary hours under clause 27.2(b)(iii) of the agreement were applicable. Additionally, the court needed to determine whether the term "retailer" in the agreement applied broadly to Coles Supermarkets Australia Pty Ltd or on a store-by-store basis. These issues were pivotal in assessing the substantive comparison between the agreement and the award.

In reaching its decision, the court closely examined the definition of a shiftworker as per the award and the relevant case law. It considered the nature of Mrs Vickers' employment, including her shift patterns and hours worked, to determine her classification. The court found that Mrs Vickers did meet the criteria for a shiftworker. Regarding the ordinary hours clause, the court interpreted the term "retailer" in the agreement as applying to Coles Supermarkets Australia Pty Ltd as a whole rather than on a store-by-store basis. Consequently, the court held that the ordinary hours under clause 27.2(b)(iii) were applicable to Mrs Vickers.

The court ultimately determined that Mrs Vickers qualified as a shiftworker under the award, and the ordinary hours clause applied as interpreted. The court's findings supported Mrs Vickers' application for the termination of the agreement, subject to any further substantive considerations that may arise.

Orders