Shop, Distributive and Allied Employees Association v Coles Group Supply Chain Pty Ltd T/A Coles Edinburgh Parks Distribution Centre

[2015] FWC 8833

[2015] FWC 8833

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Shop, Distributive and Allied Employees Association
v
Coles Group Supply Chain Pty Ltd T/A Coles Edinburgh Parks Distribution Centre
(C2015/8038)

COLES GROUP SUPPLY CHAIN PTY LTD EDINBURGH PARKS DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2015

[AE415237]

Storage services

COMMISSIONER HAMPTON

ADELAIDE, 24 DECEMBER 2015

Dispute under the terms of an Enterprise Agreement – agreed arbitration in accordance with provisions – public holidays – ordinary and natural meaning of provision applied – determination made – reasons for decision to be issued.

[1] The Shop, Distributive and Allied Employees Association (SDA) has made an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure. The dispute principally concerns the proper application of a public holiday provision within the Coles Group Supply Chain Pty Ltd Edinburgh Parks Distribution Centre Enterprise Agreement 2015 1(the Enterprise Agreement).

[2] The Enterprise Agreement applies to the Distribution Centre operated by Coles Group Supply Chain Pty Ltd at Edinburgh Parks near Adelaide. The SDA is also covered by the Enterprise Agreement and represents employees who are subject to the issue in dispute.

[3] The dispute was the subject of conciliation on 14 December 2015. Ultimately, the matter was not resolved and the parties have now expressly agreed that the Commission should determine the dispute by arbitration in accordance with clause 24.6 of the Enterprise Agreement.

[4] The parties have followed the process required by clause 24 of the Enterprise Agreement and I am satisfied that the Commission is empowered to determine this dispute as agreed by the parties.

[5] The dispute essentially concerns the application of clause 16 Public Holidays of the Enterprise Agreement, in particular, clause 16.5 Substitute Days.

[6] The parties have agreed the following question to be determined by the Commission:

“In the context of Proclamation Day 2015, do the words “actual public holiday” in cl.16.5.4 of the Edinburgh Parks DC Agreement (the Agreement) mean Saturday 26 December 2015 or the day to be “observed as the public holiday” provided for in cl.16.5.1 of the Agreement, namely Monday 28 December 2015?”

[7] The matter was subject to a hearing on 23 December 2015. I have heard evidence and submissions from both parties and have now fully considered the alternative cases. The matter concerns the arrangements that are to apply on Saturday 26 December and Monday 28 December 2015; being only a few days away. In these circumstances, it is highly desirable, if not critical, that the matter be determined without delay and that the parties be advised.

[8] I have determined that the common objective intention based upon the language and terms of the Enterprise Agreement, when read as a whole, and considered having regard to its context and purpose is as follows:

The words “actual public holiday” in clause 16.5.4 of the Enterprise Agreement in the context of Proclamation Day 2015 mean Monday 28 December 2015.

[9] Comprehensive written reasons for the Decision will be published shortly.

COMMISSIONER

Appearances:

E White, of Counsel (with permission) with D Blairs, for the Shop, Distributive and Allied Employees Association.

R West, from Minter Ellison (with permission) with K Llewellyn, for Coles Group Supply Chain Pty Ltd.

Hearing details:

2015

Adelaide

23 December.

 1   AE415237 Approved 19 August 2015.

Printed by authority of the Commonwealth Government Printer

<Price code A, AE415237  PR575305>