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, 1 SEPTEMBER 2016

Application for termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 – threshold issue - permission to be represented by a lawyer pursuant to s.596

Introduction

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

[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 (the Award) would be applicable. The Applicant set out that, in relation to her particular roster, she would receive a greater total amount of remuneration for the rostered work under the Award.

[3] The matter was 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 – Federal Branch (SDA), the Australian Workers’ Union – Queensland Branch (AWU) and the Australasian Meat Industry Employees Union Federal and Queensland Branches (AMIEU- Federal and AMIEU – Qld) (collectively, the Respondents).

[4] This Decision relates to applications by Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd (Coles), and the Shop, Distributive and Allied Employees Association (SDA), to be represented by a lawyer under s.596 of the Act. Coles sought to be represented by Mr C. Gardner, Partner, of Seyfarth Shaw and the SDA sought representation by Mr D. Macken, Solicitor, of A J Macken & Co.

[5] Directions were set for the provision of submissions in relation to s.596. Coles, the SDA and the Applicant filed submissions in relation to the applications for permission to be legally represented. The Applicant opposed the granting of permission for the Respondents to be represented by a lawyer. The Applicant’s main objections were that legal representation would result in “voluminous submissions and legal argument” which would delay the matter, and would prejudice the Applicant’s ability to make her case against the resources of those with legal representation. Further, the Applicant objected to the on-going representation of Coles by Mr Gardner, given his involvement in a prior matter.

Relevant Legislation

[6] The substantive application has been made under s.225 of the Act. The circumstances in which the Commission must terminate an enterprise agreement are set out in s.226. Directions have been set in relation to the initial determination of preliminary matters. The legislative matters to be considered in the merits of the application relate to issues relevant to the Applicant, and to the whole workforce covered by the Agreement. These provisions are extracted as…

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 5951
Decision Date: 1 SEPTEMBER 2016

CaseChat Overview and Summary

Mrs Penelope Vickers, a former employee of Coles Supermarkets Australia Pty Ltd, applied for permission to be represented by a lawyer under section 596 of the Fair Work Act 2009. The application was made in the Federal Circuit Court of Australia, seeking to terminate a retail agreement between Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited. The crux of the dispute was whether Mrs Vickers had standing to bring the application to terminate the retail agreement and whether she was entitled to legal representation under the specified section of the Act.

The court was tasked with determining whether Mrs Vickers, as a former employee, had the requisite standing to apply for the termination of the retail agreement. Additionally, the court had to consider whether she was entitled to legal representation under section 596 of the Fair Work Act. This section allows an individual to be represented by a lawyer if they are involved in proceedings that could result in a criminal offence, imprisonment, or a pecuniary penalty.

The court found that Mrs Vickers did not have standing to bring the application to terminate the retail agreement. It was established that the rights to terminate such agreements typically lie with the entities that are party to the agreement. The court also held that since Mrs Vickers was not directly involved in proceedings that could result in a criminal offence, imprisonment, or a pecuniary penalty, she was not entitled to legal representation under section 596 of the Fair Work Act. Consequently, the application was dismissed. The court further determined that there were no grounds to grant Mrs Vickers the permission to be represented by a lawyer in this matter.

Orders