[2017] FWCFB 3131
The attached document replaces the document previously issued with the above code on 9
June 2017.
A full-stop has been added to the final sentence in paragraph [14]; and
Paragraph [22] has been amended to include some further detail for clarification.
Ingrid Stear
Associate to Vice President Hatcher
Dated 13 June 2017
1
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Penelope Vickers
(AG2016/3797)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER SPENCER SYDNEY, 9 JUNE 2017
Application for termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty
Limited Retail Agreement 2011 re: interlocutory applications
Introduction
[1] Ms Penelope Vickers has applied for the termination of the Coles Supermarkets
Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 (2011 Agreement) pursuant
to s.225 of the Fair Work Act 2009 (FW Act). On 31 March 2017 Ms Vickers applied for her
application (termination application) to be referred to a Full Bench for hearing. In a decision
issued on 12 May 20171, Vice President Hatcher (acting on delegation from the President,
Ross J), granted that application. On 18 May 2017 Hatcher VP, as the presiding member of
the Full Bench to which the termination application was assigned, conducted a directions
hearing to program the matter for final hearing. In the course of that directions hearing, three
interlocutory issues were identified as requiring resolution. The first was a demand by Ms
Vickers that the employer parties to the 2011 Agreement (Coles) produce pay records of a
nature that would permit her to obtain an expert report comparing the pay received by Coles
employees pursuant to the 2011 Agreement compared to the pay they would receive if the
General Retail Industry Award 2010 (Retail Award) applied, together with other documents
said to be relevant to Ms Vickers’ application that the 2011 Agreement be terminated
retrospectively. The second concerned whether there should be a ballot of Coles employees
covered by the 2011 Agreement to determine their attitude to Ms Vickers’ application in order
to aid the Commission in the discharge of its obligation under s.226 to take into account the
views of employees in considering the application. The third was whether Mr Josh Cullinan
and/or an organisation styling itself as the “Retail and Fast Food Workers Union” (RFFWU)
should be permitted to appear in the proceedings either in its own right or on behalf of any of
Coles’ employees.
[2] On 19 May 2017 the Full Bench listed the termination application for final hearing on
3-13 October 2017 in Brisbane. The Full Bench at the same time issued directions in relation
to the matter, which included the following directions concerning the three interlocutory
issues:
1 [2017] FWC 2609
[2017] FWCFB 3131
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 3131
2
“1. Ms Penelope Vickers (the Applicant) shall file in the Commission and serve any
application for orders for the production of documents by 5.00pm Friday 26 May
2017.
2. Any party wishing to apply for or advance a proposition in relation to the conduct of
a ballot of the employees covered by the Coles Supermarkets Australia Pty Ltd and Bi-
Lo Pty Limited Retail Agreement 2011 (Agreement) shall file in the Commission and
serve on the other parties the application or proposition together with written
submissions (not exceeding 5 pages) in support thereof by 5.00pm Friday 26 May
2017.
3. Mr Joshua Cullinan shall file in the Commission and serve on the other parties:
a. a document which identifies the persons or entities for whom he seeks to
appear in the proceedings;
b. evidence of his authorisation to appear for those persons or entities; and
c. a submission setting out the reasons why he should be permitted to appear
for those persons or entities
by 5.00pm Friday 26 May.
4. Any party which opposes the issue of an order for production for which application
is made under direction 1 shall file in the Commission and serve on the other parties a
written submission (not exceeding 5 pages) setting out the basis for the opposition and
any evidence in support thereof by 5.00pm Friday 2 June 2017.
5. Any party which opposes the appearance by Mr Cullinan on behalf of any person or
entity in the proceedings shall file in the Commission and serve on the parties a
submission (not exceeding 5 pages) setting out the basis for that opposition by 5.00pm
Friday 2 June 2017.
6. The issues concerning the issue of orders for the production of documents, the
conduct of a ballot of Agreement-covered employees and the appearance of Mr
Cullinan in the proceedings will be dealt with at a hearing before the Full Bench at
11:00am, Thursday 8 June 2017 in Sydney (videolinks available on request).”
[3] On 26 May 2017 Ms Vickers, pursuant to direction 1, filed an application for an order
for the production of documents directed to Wesfarmers Limited (said to be the controlling
entity of Coles). The schedule to the order sought setting out the categories of documents the
production of which was sought is reproduced in Attachment A. The application was
supported by an affidavit sworn by Ms Vickers on 25 May 2017. On 2 June 2017, pursuant to
direction 4, Coles filed a submission opposing the making of the order sought by Ms Vickers.
The submission was supported by witness statements made by the following persons:
Eshan Dissanayake, Head of IT Security for Coles (dated 2 June 2017);
John Di Tirro, Coles’ General Manager of Commercial Store Operations (2 June
2017);
[2017] FWCFB 3131
3
Jo-Ann Kerr, Coles’ Operations Manager (dated 2 June 2017); and
Georgia Lucy Simmonds, Associate at Seyfarth Shaw Australia (dated 5 June 2017).
[4] Pursuant to direction 2, on 26 May 2017 Ms Vickers filed an “Application for
directions on procedure” which contained (by reference to an attached letter dated 11
December 2016 and signed by Dr Allen Truslove, an actuary and statistician), Ms Vickers’
proposal for the conduct of a poll of employees to obtain their views concerning the
termination application. This was also supported by written submissions and Ms Vickers’
affidavit of 25 May 2017.
[5] Coles, and the Shop, Distributive and Allied Employees Association (SDA) also filed
submissions pursuant to direction 2 on 26 May 2017. Coles opposed the conduct of a ballot
on jurisdictional and merit grounds, and in the alternative advanced its own proposal for the
conduct of a ballot of employees. The SDA opposed the holding of a ballot unless there was
agreement by all parties.
[6] On 26 May 2017 submissions under the name of RFFWU (of which Mr Cullinan was
said to be the Secretary) were filed pursuant to direction 3. In those submissions RFFWU,
through Mr Cullinan, sought to appear as representative of two Coles employees, Mr David
Suter and Mr William Smith, who are covered by the 2011 Agreement. Pursuant to direction
5, Coles and the SDA filed submissions on 2 June 2017 opposing the appearance of RFFWU
in the proceedings in any capacity. Coles’ submission was supported by a further witness
statement made by Ms Georgia Lucy Simmonds on 5 July 2017. RFFWU filed a submission
in reply on 6 June 2017.
[7] The Full Bench received oral submissions from the parties concerning the three
identified interlocutory issues at the hearing on 8 June 2017. This decision determines those
interlocutory issues. We will deal with each in turn.
Order for production
[8] The principles applying to the issue of orders for production by the Commission under
s.590(2)(c) are well established. The power conferred by s.590(2)(c) is a discretionary one to
be exercised for the purpose of the Commission informing itself as to a matter before it. The
Commission will be guided in the exercise of its discretion by the practice followed by courts
in civil proceedings when issuing subpoenas. The documents sought must have apparent
relevance to the issues in the proceedings.2 Access to the documents sought must be for the
purpose of supporting a case which is intended to be advanced, not to explore if there is a
supportable basis for a case that might potentially be advanced.3 The documents required to
be produced must be described with sufficient particularity, and the burden of producing them
must not be oppressive.4
[9] Ms Vickers submitted that the order to produce that she sought should be made
because:
2 Clermont Coal Operations Pty Ltd v Brown & Dews and Others [2015] FWCFB 2460 at [19]
3 Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 at [19]
4 Esso Australia Pty Ltd v AWU and ors [2017] FWCFB 2200 at [6]
[2017] FWCFB 3131
4
(1) The material sought relating to Coles’ decision-making process, and its subject
conduct in the approval process, for the Coles Store Team Enterprise Agreement 2014-
2017 (2014 Agreement) (an agreement which was initially approved by the
Commission but the decision to approve of which was quashed on appeal5) was
relevant to demonstrate that Coles had engaged in a course of conduct to mislead its
employees and the Commission that the 2014 Agreement passed the better off overall
test and was capable of approval under the FW Act. This meant that from the date of
the approval of the 2014 Agreement on 10 July 2015 to the date the 2014 Agreement
approval was quashed on 5 July 2016, when the apparent position was that the 2014
Agreement was in effect and had terminated the operation of the 2011 Agreement, no
person was in a position to apply to terminate the 2011 Agreement. That constituted an
exceptional circumstance justifying the termination of the 2011 Agreement
retrospective to at least 10 July 2015.6
(2) The payroll data was necessary to reveal the extent to which employees were
paid beneath the Retail Award, and the greater the proportion of employees who were
being paid less than the Retail Award, the greater the basis for a finding of
extraordinary circumstances justifying retrospectivity. If the data required was
produced, Ms Vickers would be able to obtain a report from her expert, Dr Truslove,
showing the classes and overall percentages of employees who were paid less than the
Retail Award, the extent to which they were paid less, the total monetary value of the
contingent and non-contingent benefits received by employees under the 2011
Agreement, and the extent to which Coles and its employees benefited or were
disadvantaged by the continuation of the 2011 Agreement. This would be done by
analysing a statistically valid sample obtained from the documents produced.
(3) In respect of the 2011 Agreement, it did not contain provisions catering for the
transition from the Coles Supermarkets Australia Pty Ltd Retail Award 2002 (Coles
Award) to the Retail Award, with the result that employees working only nights and
weekends were paid less than Retail Award when the 2011 Agreement came into
operation on 7 September 2012.
[10] In relation to the 2011 Agreement (for which the principal reference instrument for the
purpose of the BOOT when it was approved was the Coles Award, not the Retail Award), Ms
Vickers does not positively contend that the 2011 Agreement was incapable of approval by
the Commission or that the Commission erred in approving it. Her position, as clarified
during the hearing before us, went no higher than that she considered, if she had been
employed by Coles on her current roster at the time of the 2011 Agreement, that she would
have been worse off under the 2011 Agreement, and that the approval process for the 2011
Agreement warranted further examination.
[11] Coles made submissions in relation to two issues, the production of approval
documents in relation to the 2011 Agreement and the 2014 Agreement, and the production of
payroll data. In relation to the former issue, Coles submitted that Ms Vickers had no
reasonable basis to make the allegations advanced against it in relation to the approval process
5 [2016] FWCFB 2887
6 Until the hearing before us on 8 June 2016, we understood that Ms Vickers’ position was that the 2011 Agreement should
be terminated with effect from 10 July 2015. However at that hearing Ms Vickers informed us that she now sought that the
2011 Agreement be terminated with effect from the date of its approval.
[2017] FWCFB 3131
5
for the agreements, that the allegations constituted an abuse of process, and the application for
orders for production of documents was in furtherance of that abuse of process. In respect of
the approval of the 2014 Agreement, Coles did no more than provide the information required
by the Commission in furtherance of its application for approval of the 2014 Agreement, and
express an opinion about whether the BOOT was satisfied. The order for production of
documents was merely a fishing expedition in search of evidence to support a case that was
asserted without any reasonable basis. In respect of the 2011 Agreement, the allegations about
its approval were new in that the BOOT-status of that agreement had never previously been
questioned, and had no reasonable basis. The 2011 Agreement was not tested for the purposes
of the BOOT against the Retail Award.
[12] In relation to the payroll data, Coles submitted that the amount of material required
was “staggering”. What was sought were records for all of Coles’ employees for specified
periods during the last six years. Coles employed approximately 75,000 employees at any one
time, so that the total records sought could be for as many as 160,000 employees. This was
oppressive, Coles submitted, because it would involve significant cost and time, and would
require Coles to act contrary to its established data security and integrity protocols (with a risk
of irreparable harm if the data fell into the wrong hands or was misused), and would result in
the divulgence of material which was commercially sensitive and of such a volume that it
could not sensibly be constituted into evidence. It relied on the witness statements of Mr
Eshan Dissanayake, Mr John Di Tirro and Ms Jo-Ann Kerr to provide the evidentiary
foundation for those propositions. Coles indicated that it would not oppose an application for
an order requiring the production of pay records for a reasonable period for 500 random
employees or all employees at 3-5 nominated supermarkets.
[13] Coles also submitted that there was no basis for any order for production to be directed
to Wesfarmers Limited. It was not the employer of employees covered by the 2011
Agreement and had not been involved in the approval process for the 2011 Agreement or the
2014 Agreement.
[14] In relation to the order for production of documents, we have determined as follows:
(1) Any order for production should, at least at the initial stage, be directed at
Coles (that is, Coles Supermarkets Australia Pty Ltd), and not Wesfarmers Limited.
Coles is the employer under the 2011 Agreement and can be presumed to hold the
relevant documents. There is nothing before us to indicate that any relevant documents
are held by Wesfarmers Limited, and we were informed by senior counsel for Coles
that Wesfarmers was not involved in the approval process for the agreements. If there
is a failure by Coles to produce the required documents because they are held by
another entity, this issue can be revisited then.
(2) We decline to make an order for the production of the documents specified in
paragraphs 7-11 of the Schedule. We consider, having regard to the evidence of Mr
Dissanayake, Mr Di Tirro and Ms Kerr, that the imposition of a requirement upon
Coles to produce the roster records and payroll data for its entire workforce for
specified four week periods over a timespan of six years would be oppressive in terms
of time, cost and commercial risk. Further, a requirement to produce such a volume of
material bears no proper relationship to the matters that are relevant to the
determination of the termination application. We see no purpose in requiring Coles to
produce the entire records of its workforce merely for the purpose of obtaining a
[2017] FWCFB 3131
6
sample when it would be open to Ms Vickers to first identify her sample and then seek
the production of the documents relevant to that sample. Given that Coles stores
throughout the country have broadly common characteristics, with only minor
variations in terms of trading hours, we consider that a sample of employee records for
3-5 Coles stores in various states would be sufficient to enable Ms Vickers to
demonstrate what, if any, categories of employees would be better off under the Retail
Award than under the 2011 Agreement. It appears to be common ground that the
outcomes may be different depending upon whether employees primarily work
weekday hours or at nights or on weekends, and we think that the records for any
Coles store which is open at nights and weekends (which we understand to be nearly
all of them) would satisfactorily encompass these different categories of employees.
(3) We decline to make any orders for the production of documents relating to the
approval process for the 2011 Agreement. Ms Vickers’ application for such documents
to be produced appears to us to be a classic fishing expedition, in that the documents
are sought merely for the purpose of exploring whether there is a basis to challenge the
approval of the 2011 Agreement. To this point, Ms Vickers has not sought to advance
a positive case that the 2011 Agreement should not have been approved or that its
approval was obtained by misleading or deceptive conduct on the part of Coles.
(4) We reject Coles’ submissions that no order should be made with respect to the
approval process for the 2014 Agreement. As earlier outlined, Ms Vickers’ case for
retrospective termination of the 2011 Agreement (at least from 10 July 2015) is
fundamentally based on the proposition that the erroneous approval of the 2014
Agreement on that day was the result of misleading conduct on the part of Coles in
terms of the information it provided to employees and the Commission and prevented
any termination application being made prior to 5 July 2016. The documents sought
have (with some exceptions we will identify) apparent relevance to that aspect of Ms
Vickers’ case. We do not accept that Ms Vickers’ case in that respect has been
advanced without any reasonable basis for it. We consider that it is reasonably
arguable, having regard to the conclusions of the Full Bench in determining that the
approval of the 2014 Agreement should be quashed7, that Coles ought reasonably to
have known that the 2014 Agreement could not satisfy the BOOT when it applied for
its approval.
(5) The documents to be produced in relation to the 2014 Agreement will not
include legal advice (which is presumably privileged) or financial advice (which does
not have apparent relevance).
[15] An order will be issued pursuant to s.590(2)(c) requiring Coles to produce the
documents specified in the schedule in Attachment B to this decision.
[16] If, having regard to our reasons in paragraph [14](2) above, Ms Vickers wishes to
apply for an order for production of employee roster and pay records at a sample of Coles
stores nominated by her, she may do so within seven days of this decision.
Ballot of Coles employees
7 [2016] FWCFB 2887 at [6]-[33]
[2017] FWCFB 3131
7
[17] The proposal advanced by Ms Vickers for the conduct of a ballot or poll of Coles
employees covered by the 2011 Agreement may be summarised as follows:
each of the approximately 75,000 Coles employees would be provided with an
“individual calculation and statement” which compared their pay under the 2011
Agreement for the roster they worked over a four week pay period to their pay
under the Retail Award;
Dr Truslove would, on behalf of Ms Vickers, prepare all of the individual
calculation statements on the basis of rosters and payroll documents produced by
Coles for each employee identified only by employee number, and then provide the
statements to Coles for them to check and to match them to employees’ names;
if there was any dispute about the individual calculations, this would need to be
resolved by the Commission;
Coles would then provide the individual calculation statements to its employees
together with a ballot form allowing the employees to vote on whether they support
the termination of the 2011 Agreement;
the employees could vote by logging onto to an online survey tool known as
“SurveyMonkey”, or emailing or posting a ballot form to addresses nominated by
Ms Vickers.
[18] Ms Vickers’ proposal would appear to require Coles to compulsorily participate in a
number of steps anterior to the proposed voting process, including participation in the
preparation of the proposed individual calculation statements and their distribution together
with voting documents to each of Coles’ approximately 75,000 employees. Coles opposes any
orders being made binding upon it to give effect to the proposal, and submits that the
Commission has no power to make any such orders.
[19] There is no general power in the FW Act for the Commission to order the conduct of a
ballot of employees by a third party. The FW Act expressly authorises the making of orders
for the conduct of ballots only in relation to the taking of protected industrial action under
Pt.3-3 Div.8, which sets out a detailed regime specifying how such ballots are to be
conducted.8 There are specified circumstances in which the Commission is conferred with
power in terms broad enough to encompass the power to order a ballot; for example, s.237(3)
authorises the Commission to “work out whether a majority of employees want to bargain
using any method the FWC considers appropriate” in connection with the requirement in
s.237(2)(a) that the Commission be satisfied that a majority of employees want to bargain
before it makes a majority support determination. However although s.226(b) requires the
Commission to take into account the views of employees in considering whether it is
appropriate to terminate an enterprise agreement, no ancillary power analogous to that in
s.237(2)(a) is conferred.
8 The Commission also has specific powers concerning the conduct of ballots under the Fair Work (Registered
Organisations) Act 2009
[2017] FWCFB 3131
8
[20] Ms Vickers, being self-represented, was unable to articulate a legal basis for the
making of orders to give effect to her proposal. One argument that might have been advanced
is that s.590 of the FW Act authorises the making of order for the conduct of a ballot of
relevant employees. Section 590 provides:
[21] The general power of the Commission to inform itself is set out in s.590 as follows:
590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any
matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC,
oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to
provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the
regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare
a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).
[22] On one view, the general power of the Commission in s.590 to inform itself in such
manner as it considers appropriate extends to informing itself as to the views of a group of
employees about a matter by way of a ballot. On this view, orders concerning requirements as
to the conduct of the ballot would fall within the implied power to make incidental orders
necessary to allow the express power to be exercised effectively. However the legislative
historical context tells against this approach. Predecessor federal industrial relations
legislation likewise empowered the statutory predecessors of the Commission broad power to
inform themselves as appropriate. At the time of the repeal of the Conciliation and
Arbitration Act 1904, section s.40(1)(b) empowered the Conciliation and Arbitration
Commission to “... inform itself on any matter in such manner as it considers just”. Such a
power (previously contained in s.25) had existed since the legislation was first enacted in
1904. This formulation was continued in s.110(2)(b) of the Industrial Relations Act 1988 and
the Workplace Relations Act 1996. However there was also, until the amendments effected by
the Workplace Relations Amendment (Work Choices) Act 2005 came into effect, a separate
[2017] FWCFB 3131
9
power to order the conduct of ballots of employees in relation to the prevention or settlement
of industrial disputes and later in relation to industrial action (see ss.45-46 of the Conciliation
and Arbitration Act 1904 and ss.135-140 of the Industrial Relations Act 1988 and the
Workplace Relations Act 1996). These provisions were first introduced, it appears, in 1956,
and subsequently amended a number of times, and took a detailed and prescriptive form.
Their introduction and existence tells against the proposition that the general power for the
tribunal to inform itself ever included any power to order the conduct of a ballot. These ballot
provisions were removed from the Work Choices manifestation of the Workplace Relations
Act, when the federal industrial relations system departed from its primary reliance on the
industrial disputes power in the Constitution, and a new regime concerning ballots in relation
to the taking of protected industrial action was introduced. This position is broadly reflected
in the FW Act.
[23] We would therefore incline to the view, having regard to the context of the FW Act as
a whole and the historical context, that the general power in s.590 cannot be interpreted so
broadly as to include the power to order the conduct of ballots of employees by third parties in
circumstances where, currently and historically, such a power has only been conferred in
express terms and able to be exercised in specified circumstances. However we will not
express a final view about this question in circumstances where there was no effective
contradictor to Coles’ submissions on the point.
[24] Even if we do have power to make orders to give effect to Ms Vickers’ proposal, we
would not do so because it is manifestly impracticable. As earlier stated, an essential feature
of the proposal is that each employee be provided with a statement, based on an analysis of
roster and payroll records for a four week period, indicating what their position would be if
paid under the Retail Award as compared to under the 2011 Agreement. It is apparent that,
assuming this massive undertaking could be carried out within a reasonable period of time,
there would be disagreements between the parties as to how the analysis would be carried out.
To give just one example, Ms Vickers contends that the requirement in the 2011 Agreement
for Coles to pay superannuation contributions pursuant to the Superannuation Guarantee
legislation into a specified fund, with the result that there is no general right of employees to
choose their superannuation fund, has had adverse financial consequences for them, and that
this should be taken into account in their pay calculations. We understand this to be a disputed
proposition. There is also the vexed question of what the position would be, if the 2011
Agreement was retrospectively terminated, for employees who have been paid in excess of
the Retail Award. If there is no agreement between Ms Vickers’ expert, Dr Truslove, Coles
(and perhaps the unions) about the individual calculations, that would then (on Ms Vickers’
proposal) become a matter for the Commission to determine. We consider that to be an utterly
impractical proposition in relation to a workforce of about 75,000 employees, and would
likely involve an interlocutory hearing of considerable dimension requiring the receipt of
evidence from competing expert witnesses, causing delay in the finalisation of the entire
proceedings.
[25] Section 590(2)(f) and (g) empower the Commission to conduct its own inquiries and
undertake and commission its own research. It might be feasible, aided by an order for
production by Coles to produce the necessary employee records to enable it to occur, for us to
commission an external organisation to conduct a survey of Coles employees’ attitude about
the termination application. However, no party has proposed that we take such a course, and if
the position is that it must be preceded by information being provided to each employee about
[2017] FWCFB 3131
10
the individual financial effect of the termination of the 2011 Agreement, then the same
practical difficulty described above will arise.
[26] Accordingly, we decline to make orders to give effect to Ms Vickers’ proposal for a
ballot of employees, and we will take no further step in relation to this matter at this stage.
[27] It may be noted that the directions made on 19 May 2017 gave the opportunity for any
party supporting or opposing the termination application to file evidence and submissions (at
identified dates in the timetable). That will allow any Coles employee to express, in writing, a
view about the termination application, should they wish to do so. We will arrange for a copy
of the directions to be posted onto the Commission’s website.
The role of RFFWU
[28] It is not in dispute that Mr David Suter and Mr William Smith are employees of Coles
who are covered by the 2011 Agreement. We consider therefore that they have the right to be
heard in the proceedings, since their legal employment rights and obligations are directly
affected by the termination application. They can exercise that right in accordance with the
directions made on 19 May 2017. If they seek to be represented by a person who is a lawyer
or paid agent, that person will need to seek permission to appear in the proceedings pursuant
to s.596 of the FW Act. They can be represented by Mr Cullinan if they so wish (subject to
s.596).
[29] However the position currently advanced is more complex than that. Mr Cullinan does
not seek to appear on behalf of Mr Suter and Mr Smith directly. RFFWU has made an
application to appear in the proceedings in its own right as the representative of its members
Mr Suter and Mr Smith. Mr Cullinan, who is RFFWU’s Secretary, seeks to appear on behalf
of RFFWU. He has indicated that he, or some other officer or employee of RFFWU or a
lawyer or agent engaged by RFFWU, will seek to appear for RFFWU in the future. This is, in
substance, an application by RFFWU to be heard in the proceedings as if it is a party principal
in the matter, akin to a registered organisation.
[30] The Commission has general control over who may participate in proceedings before
it under ss.589 and 593(3)(b) of the FW Act. We have decided to reject RFFWU’s application
to participate in the proceedings for the following reasons:
(1) RFFWU has not demonstrated that its own interests are directly affected by the
termination application. Unlike the SDA, the AWU and the AMIEU, it is not an
organisation covered by the 2011 Agreement.
(2) RFFWU is not an organisation registered under the Fair Work (Registered
Organisations) Act 2009, nor has it applied for registration. It is therefore not subject
to the extensive legislative regime controlling the affairs and conduct of registered
organisations of employees (i.e. unions) that is administered by this Commission and
the Registered Organisations Commission and enforced by the courts. It would
therefore be entirely inappropriate to allow RFFWU to appear as of right in
Commission proceedings on a basis equivalent to that of a registered organisation.
[2017] FWCFB 3131
11
(3) There is no evidence that RFFWU has any members employed by Coles apart
from Mr Suter and Mr Smith who, as earlier stated, may appear in the proceedings
directly.
(4) RFFWU has not identified any assistance it could provide to the Commission
in the determination of the termination application that will not be provided by Ms
Vickers, Coles, the SDA, the AWU or the AMIEU. This is not a case, for example,
where there is a lack of a contradictor, or that RFFWU possesses any relevant
expertise that the parties to the proceedings do not.
VICE PRESIDENT
Appearances:
Ms P. Vickers on her own behalf with Dr A Truslove.
Mr W. Friend of Counsel with Mr D. Macken for the Shop, Distributive and
Allied Employees Association.
Mr J. Harding for the Australian Workers Union.
Ms K. Rogers for the Australian Meat Industry Employees Union.
Mr S Woods QC with Mr N. Burmeister of Counsel, Mr D. Ternovski and Ms A.
Millhouse for Coles Supermarkets Australia Pty Ltd.
Mr J. Cullinan for the Retail and Fast Food Workers’ Union
Hearing details:
2017.
Sydney:
June 8.
Printed by authority of the Commonwealth Government Printer
Price code C, PR593588
OF THE FAIR WORK MISSION THE
[2017] FWCFB 3131
12
Attachment A
Schedule to Ms Vickers’ proposed order for production of document
All documents (including but not limited to communication, reports, and financial
statements) (‘Documents’) associated with the application to sanction the Coles
Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd Retail Agreement 2011 (‘2011
EBA’) and the Coles Store Team Enterprise Agreement 2014-2017 (‘2014 EBA’),
including:
1 The financial reports, analysis, and advice produced or relied upon with respect to:
a. the proposed 2011 EBA prior to its submission for the Commission’s
approval;
b. the proposed 2014 EBA prior to its submission for the Commission’s
approval; and
c. the information and undertakings provided by Coles to the Commission
under the letter of its solicitors, Seyfarth Shaw Australia, dated 17 June
2015.
2 The Documents relating to the authorisation given to Mr Angelo Yoannidis to sign and
file the Statutory Declaration:
a. declared by him on 14 July 2011 in relation to the application for the
approval of the 2011 EBA; and
b. declared by him on 18 May 2015 in relation to the application for the
approval of the 2014 EBA.
3 The Documents used or relied upon by Mr Angelo Yoannidis to assist or form his
belief as to the truth and accuracy of the Statutory Declaration declared by him on 18
May 2015, and in particular with respect to the answer to question ‘3.6 Do you think
the agreement passes the better off overall test?’
4 The Documents associated with the choice of rosters as sample indicative rosters
forming part of the said Statutory Declaration declared on 18 May 2015.
5 The documents and information provided to employees explaining the terms and effect
of the 2011 EBA in satisfaction of sections 180(5) and 188 of the Fair Work Act 2009.
6 In relation to the decision to file the application with the Commission for approval
of the 2011 EBA and the 2014 EBA:
a. all Documents viewed by, or produced by, any board of directors or any
divisional board of directors or a steering committee, including the
Audit and Risk Committee, within the Wesfarmers Group.
[2017] FWCFB 3131
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b. all Documents relating to the financial impact of the proposed EBAs
showing the recommendation and/or decision of the board of directors or
any divisional board of directors or a steering committee, including the
Audit and Risk Committee, within the Wesfarmers Group.
Data
7 The information contained in the Team Member Rosters and the Summary
(Additional Information) for the four week roster cycle from 19 September 2016 to
16 October 2016 as filed and served by Coles on 10 February 2017, but for all
Coles employees covered by the 2011 EBA. The information need not include
the content below the row for ‘Average Hours’ in the Team Member Rosters.
8 The information for all Coles employees covered by the 2011 EBA for the
following allowances for the four week roster cycle from 19 September 2016 to
16 October 2016:
Description of allowance 2011 EBA 2014 EBA Award
a. Dairy and freezer allowance / Cold
work disability allowance
Clause 4.4.3 Clause 3.7.4 Clause 20.8
b. First Aid Clause 4.4.2 Clause 3.7.5 Clause 20.9
c. Liquor licence Clause 20.11
d. In Charge allowance Clause 4.4.1 Clause 3.7.6
e. Higher duties Clause 20.12
f. Broken Hill allowance Clause 20.13
g. District allowance, including Darwin, Alice
Springs and WA locations specified in
clause
Clause 4.4.4 Clause
3.7.10 and
3.7.11
Description of allowance 2011 EBA 2014 EBA Award
h. Paid Meal Allowance Clause
5.5.7 and
5.8.4 (b)
Clause
4.5.12
i. Six Shift Workers, Baker (Victoria only) Clause
6.1.16
9 The Information referred to in clauses 7 and 8, but also for each of the following
four week periods:
a. 14 September 2015 to 11 October
2015;
b. 15 September 2014 to 12 October
2014;
c. 16 September 2013 to 13 October
2013;
d. 17 September 2012 to 14 October 2012;
and
[2017] FWCFB 3131
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e. 19 September 2011 to 16 October 2011.
10 The total monetary value of the contingent benefits actually received by all Coles
employees under the EBAs for the 2012, 2013, 2014, 2015 and 2016 financial
years for the following:
Description of benefit 2011 EBA 2014 EBA
a. Pre-approved leave arrangements – Annual Leave,
sick leave, carer’s leave and long service leave for
less than one week’s duration
Clause 6.12 Clause 2.4.1.b
b. Blood donor leav Clause 6.7 Clause 5.4.5
c. Defence service leave Clause 6.6 Clause 5.7.3
d. Accident makeup pay (Victoria only) Clause 4.9 Clauses
3.12.1 and
3.12.2e. Carer’s Leave (paid in addition to the National
Employment Standard ‘NES’)
Clause 6.3 Clause 5.5.3
f. Compassionate leave (paid in addition to the NES) Clause 6.4 Clause 5.6.1
g. Emergency Services leave Clause 6.8 Clauses
5.9.3 and
5.9.6h. Jury service (paid in addition to the NES) Clause 6.5 Clause 5.10.5
i. Natural disaster leave Clause 6.9 Clause 5.13.3
j. Public holiday non-working day entitlements Clause 6.14.7 Clause 5.1.13
k. Redundancy pay (paid in addition to the NES) Appendix
C Clause
1.3
Appendix
G1.4.1
l. Additional Christmas Day loading Clause 6.14.6 Clause 5.1.5
11 The above information (paragraphs 7 - 10) is to be supplied in whatever electronic data
format is produced by the SAP and Kronos systems and may be de-identified from the
Applicant’s perspective.
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Attachment B
Schedule to order for production of documents to be issued by the Full Bench
All documents (including but not limited to communication, reports, and financial statements)
(Documents) associated with the application to sanction the Coles Store Team Enterprise
Agreement 2014-2017 (2014 Agreement) that fall within any of the following categories:
1. The Documents relating to the authorisation given to Mr Angelo Yoannidis to sign
and file the Statutory Declaration declared by him on 18 May 2015 in relation to the
application for the approval of the 2014 Agreement.
2. The Documents used or relied upon by Mr Angelo Yoannidis to assist or form his
belief as to the truth and accuracy of the Statutory Declaration declared by him on 18
May 2015, and in particular with respect to the answer to question “3.6 Do you think
the agreement passes the better off overall test?”.
3. The Documents relied upon by Mr Angelo Yoannidis to select the sample indicative
rosters forming part of the said Statutory Declaration declared on 18 May 2015.
4. In relation to the decision to file the application with the Commission for approval of
the 2014 Agreement
(a) All Documents relied upon by any board of directors or any divisional board of
directors or a steering committee, including the Audit and Risk Committee,
within Coles Supermarkets Australia Pty Ltd or Bi-Lo Pty Ltd.
(b) All Documents recording or concerning the financial impact of the proposed
EBAs showing the recommendation and/or decision of the board of directors
or any divisional board of directors or a steering committee, including the
Audit and Risk Committee, within Coles or BI-LO.
