1
Fair Work Act 2009
s.185—Enterprise agreement
Coles Supermarkets Australia Pty Ltd
(AG2024/1124)
COLES RETAIL ENTERPRISE AGREEMENT 2024
Retail industry
JUSTICE HATCHER, PRESIDENT
DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT MASSON
SYDNEY, 3 MAY 2024
Application for approval of the Coles Retail Enterprise Agreement 2024.
[1] Coles Supermarkets Australia Pty Ltd (Coles) has made an application under s 185 of
the Fair Work Act 2009 (Cth) (FW Act) for the approval of an enterprise agreement known as
the Coles Retail Enterprise Agreement 2024 (Agreement). The application is supported by a
Form F17B declaration made on behalf of Coles by its head of employee relations, Robert
Rondinelli, which explains the steps taken by Coles to comply with the pre-approval
requirements in the FW Act, and why in the opinion of Coles the Agreement passes the ‘better
off overall test’ (BOOT) against the General Retail Industry Award 2020 (Award). Attached to
the declaration are explanatory materials relating to the Agreement that Coles provided to
employees before the vote on the Agreement, as well as documents relating to other pre-
approval requirements.
[2] On 16 April 2024, the Full Bench raised three issues with Coles concerning the approval
requirements for the Agreement and issued directions to Coles and the bargaining
representatives to file submissions and declarations. The issues raised by the Full Bench were
the following:
A. Clause 5.1.2 of the Agreement provides that the employer and a majority of
employees at a store may agree to substitute a nominated public holiday. On one
view this provision purports to exclude the NES entitlement to particular public
holidays that may be substituted only by agreement between the employer and an
individual employee: see ss 115(1), 115(3) of the FW Act.
B. Clause 4.3.3 of the Agreement provides for voluntary additional shifts. What
implications does this clause have for whether the Agreement passes the ‘better
off overall test’ (BOOT), given the Award does not provide for split shifts and
prescribes minimum breaks?
[2024] FWCFB 250
DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 250
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C. Appendix A3.5.1 of the Agreement states that trainees may be engaged ‘under the
arrangements contained in the GRIA’. If trainees are to receive award conditions,
how does the Agreement pass the BOOT in respect of these employees?
[3] As to issue A, Coles has provided an undertaking that clause 5.1.2 of the Agreement
will have no effect. The undertaking meets our concern that this provision might purport to
exclude the NES. Issue B corresponds with one of the arguments raised by the Retail and Fast
Food Workers Union Incorporated (RFFWU Inc) in support of its contention that the
Agreement does not pass the BOOT, which we consider below. In respect of issue C, Coles
said that it did not currently employ, nor did it intend to employ trainees, but if it did engage
trainees under the training arrangements in the Award, they would nevertheless receive the
other entitlements of the Agreement which are more beneficial than the Award. We are
accordingly satisfied that no BOOT concern arises in connection with trainees.
[4] The Shop, Distributive and Allied Employees Association (SDA) filed a Form F18
declaration in support of the application for approval of the Agreement. The SDA is a union
that represents a significant proportion of the employees covered by the Agreement. Coles
estimates that more than 30,000 of the 92,574 employees covered by the Agreement are
members of the SDA. In its declaration the SDA stated that, although it disagreed with certain
statements in Coles’ declaration, it was of the view that the Agreement passed the BOOT. It
said that the Agreement provided some 21 terms that are more beneficial than the Award,
including minimum wages that will exceed those in the Award in every year of the Agreement.
The SDA stated that in its opinion the benefits provided for in the Agreement outweighed the
terms that were less beneficial than those in the Award. The SDA did not raise concerns that
the Agreement was not genuinely agreed to by employees.
[5] The Australian Workers’ Union (AWU) lodged a Form F18 declaration in support of
the application in terms substantially the same as those of the SDA’s declaration.
[6] The Australasian Meat Industry Employees Union (AMIEU) filed a Form F18
declaration opposing the application for approval of the Agreement on the grounds that the
AMIEU had been excluded from the Agreement and that the Agreement contained
objectionable provisions. We return to these contentions further below. The AMIEU did not
express any view as to whether the Agreement passed the BOOT or raise any concern that the
Agreement had not been genuinely agreed to by employees.
[7] RFFWU Inc submitted a Form F18A declaration in which it stated that it opposed the
approval of the Agreement on the grounds that the Commission could not be satisfied that the
Agreement had been genuinely agreed to by employees, and that it did not pass the BOOT. It
filed submissions elaborating upon these objections, together with a witness statement of its
member, Melanie Juliana. Coles filed submissions contending that both of these approval
requirements had been met, and a witness statement from Mr Rondinelli.
RFFWU Inc’s contentions that the Agreement was not ‘genuinely agreed to’
[8] RFFWU Inc contended that the Agreement had not been genuinely agreed to by the
employees because Coles had made misrepresentations to them about the Agreement. First, it
submitted that Coles had told employees that they would receive guaranteed wage increases
under the Agreement when this was not in fact the case. Only supermarket employees were
entitled to wage increases, and only in the amounts awarded in the Commission’s Annual Wage
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Review, if any, which could not be said to constitute a guaranteed increase, as the Commission
might not award any increase. RFFWU Inc said that certain liquor employees would not receive
any wage increases because of the effect of clause A4.3.3, whereby no increase will occur until
an employee’s minimum rate of pay under the Agreement exceeds their current rate.
[9] We reject the contention that Coles misled employees about the wages that they would
receive under the Agreement. It is clear from the explanatory material attached to the Form
F17B application that Coles distinguished between the wage increases that would apply to
supermarket and liquor employees respectively. It was supermarket employees who were told
that they would receive ‘guaranteed’ wage increases. This distinction is evident, for example,
in a message sent by Coles to employees on 11 March 2024, and in information packs sent to
supermarket and liquor employees (see appendices E-10 and E-13 to Coles’ Form F17B
declaration respectively). Further, infographics provided to supermarket employees stated that
employees would receive guaranteed wage increases based on the Annual Wage Review,
whereas infographics provided to liquor employees did not contain this statement but instead
provided a reference to the ‘mycoles’ website which set out the wage arrangements for liquor
employees.
[10] We do not consider that it was misleading to describe the wage increases for
supermarket employees as ‘guaranteed’. The communications to employees made clear that
what was guaranteed was an increase in the amount of the wage increases granted by the
Commission in its Annual Wage Review. Further, in the present economic environment, it
seems unlikely that there would be no increases to wages made through Annual Wage Reviews
over the life of the Agreement. In our opinion, the explanatory material provided by Coles to
employees accurately conveyed the substance of the Agreement. It was not misleading merely
because it did not contemplate an unrealistic hypothesis of there being no wage increase being
awarded in any Annual Wage Review that will occur during the life of the Agreement. The
circumstances of this case are very different from those before the Full Bench in Commonwealth
Bank Group Enterprise Agreement 2020,1 where the wage increases described by the employers
as guaranteed were in fact subject to eligibility requirements.
[11] RFFWU Inc further contended that Coles did not make clear to employees that the wage
increases under the Agreement did not apply to employees’ effective or actual pay rates. This
submission was directed at the position of employees who under the Coles Supermarkets
Enterprise Agreement 2017 (2017 Agreement) receive a ‘protected pay rate’ that entails a ‘top-
up’ arrangement. Mr Rondinelli explained these concepts in his witness statement. He said that
immediately prior to the 2017 Agreement being made, certain employees had received higher
average pay over the previous 12 months than they would receive under the 2017 Agreement.
Under clause 5.3.3 of the 2017 Agreement these employees would therefore receive a ‘protected
rate’ of pay. RFFWU Inc contended that, in explaining the Agreement to employees, it was not
made clear that the wage increases under the Agreement would not be applied to the protected
rate, but instead would apply only to the base rate of pay.
[12] We disagree. First, the Agreement discontinues the top-up arrangements. This is clear
on the face of the Agreement. It was also clearly explained to employees in the entitlements
comparison document (appendix E-12 to the Form F17B declaration). Further, the amount of
the top-up payment received by employees under the 2017 Agreement, if any, can vary from
week to week. It is not a rate of pay that one would expect to be affected by a general wage
increase. Finally, to the extent that RFFWU Inc is to be understood as making a more general
submission that Coles failed to tell employees that wage increases did not apply to the actual
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rate of pay, we reject it. The explanatory material is replete with references to increases in the
base rate of pay. We consider that Coles complied with s 180(5) in respect of its explanation of
this aspect of the Agreement.
[13] In its declaration, RFFWU Inc submitted that Coles had represented to employees that
certain benefits would derive from the Agreement when this was not the case. It said that Coles
had told employees that a vote for the Agreement would mean that employees would receive
additional discount shopping days, and referred to a particular infographic in support of a ‘yes’
vote which contained the words ‘Twice as many Double Discount days in 2024’. The
Agreement does not deal with discount shopping days. But Coles did not tell employees that it
did so. It simply said that if the Agreement was approved, this additional benefit would be
provided. It confirmed this position following the vote in a message sent to employees on 26
March 2024. There was no misrepresentation here.
[14] In its written submissions, RFFWU Inc contended that the SDA had misrepresented the
wages that would be provided to employees under the Agreements by sending them a text
message encouraging them to vote ‘yes’ for ‘better wages’, when the Agreement’s wages were
not better. In our view, they are. Supermarket employees will have higher minimum rates of
pay in each year of the Agreement in line with increases awarded through the Annual Wage
Review. The minimum rates for liquor employees will be enhanced in the way described in
Appendix 4 to the Agreement. Employees who have received top-up payments will cease to do
so from this year, but this was abundantly clear, including from the explanatory material
provided to employees. This might have been a reason for employees subject to the top-up
payments to vote against the Agreement. But there is no basis for a conclusion that these or
other employees were misled about the wages that they would receive under the Agreement.
[15] Section 188 of the FW Act requires the Commission to take into account the statement
of principles made under s 188B in determining whether it is satisfied that an enterprise
agreement has been genuinely agreed to by employees. Paragraph 19 of the statement of
principles states that if one or more employee organisations (unions) acting as a bargaining
representative for a ‘significant proportion’ of the employees covered by the agreement
supports approval of the agreement and does not have concerns that it was not genuinely agreed
to by the employees, this should be given ‘significant weight’ by the Commission in considering
whether the agreement has been genuinely agreed. We accept Coles’ estimate, based on payroll
deduction data, that the SDA is a bargaining representative for in excess of 30,000 employees
at least, and hence for a significant proportion of employees. By contrast, RFFWU Inc, on its
own numbers, represented less than 900 employees in the bargaining process. It does not
represent a significant proportion (less than one per cent) of the employees covered by the
Agreement. The SDA supports the approval of the Agreement by the Commission and has
expressed no concerns that the Agreement was not genuinely agreed to by employees. We give
this significant weight. Further, taking into account the materials before the Commission about
the information and explanations provided to employees before the vote, we consider that Coles
complied with the requirement in s 180(5) by taking all reasonable steps to explain the terms of
the Agreement and the effect of those terms to employees. We conclude that the Agreement
was genuinely agreed to by employees.
RFFWU Inc’s contentions regarding the BOOT
[16] RFFWU Inc submitted that the Agreement did not pass the BOOT. In its written
submissions, it referred to seven respects in which the Agreement was said to be less favourable
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than the Award, which together resulted in employees not being better off overall under the
Agreement. These were the following:
• The Agreement does not provide for a laundry allowance, thereby reducing the
small margin by which wages exceed their Award counterparts.
• The Agreement was said to provide for a lesser penalty when employees do not
receive a 10- or 12-hour break between shifts, because it states simply that the
penalty is at the rate of 200%, rather than the rate of 200% ‘of the rate they would
be entitled to’, as per clause 16.6(b) of the Award.
• Under the Agreement, the days on which part-time employees can be compelled
to work, and the hours they work on those days, can be changed without the
agreement of employees, whereas under the Award their agreement would be
required.
• The circumstances under which a part-time employee can be required to work are
broader than under the Award. (This submission was withdrawn at the hearing in
light of Coles’ submission that part-time employees receive overtime payments in
the relevant circumstances.)
• Unlike the Award, the Agreement does not require termination payments to be
made within seven days of termination.
• Employees can be required to use annual leave during a close-down without the
conditions imposed by the Award, including that the requirement be reasonable
and that employees be given written notice.
• The Agreement introduces split shifts which are prohibited under the Award and
would, according to RFFWU Inc, attract overtime payments under the Award if
they were to be worked, whereas such payments are not replicated in the
Agreement.
[17] It is true that the absence of a laundry allowance in the Agreement reduces the margin
by which employees’ wages exceed the Award minima, and that this margin is a relatively small
one. Nevertheless, the margin exists and is not disputed by RFFWU Inc.
[18] As to the penalty that applies when shift breaks are not observed, we consider that the
effect of the provision in the Agreement is the same as that in the Award, but in any event the
Award provision deals with a circumstance which can reasonably be expected to arise only on
an exceptional basis. If the Agreement provision were to be understood as less favourable to
employees than the Award provision, this would be a minor matter in the BOOT analysis.
[19] RFFWU Inc expanded on its contentions relating to part-time employees in its written
submissions. It said that the Agreement omitted important protections in the Award that prohibit
changes to the number of hours worked by a part-time employee on a day without that person’s
agreement, as well as changes to the days on which they work (clause 10.10(b)), whereas the
Agreement allows Coles to change working arrangements unilaterally on 14 days’ notice.
RFFWU Inc submitted that this was a great detriment to part-time workers, particularly women,
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parents and carers, and referred in this regard to the witness statement of Ms Juliana in which
she describes her concerns about these matters.
[20] Coles submitted that although the Agreement allows it to change the guaranteed hours
of a part-time employee without the employee’s agreement, any dispute that arises in relation
to this change can be put through the dispute resolution procedure in the Agreement and
ultimately be determined by the Commission and, until that occurs, the status quo applies and
work will continue in accordance with the existing roster. Coles submitted that the practical
effect of the difference between the part-time provisions of the Agreement and the Award was
minimal and not a detriment.
[21] We agree with RFFWU Inc that the Agreement’s provision for Coles to unilaterally
change the hours and days of work of part-time employees should be considered a detriment.
Although the possibility of having the Commission determine any dispute about changes to
part-time working arrangements is a safeguard, it is less beneficial to employees than the right
to refuse to accept the change. The loss of the ability of part-time employees to refuse an
employer-initiated change to their hours and days of work under the Award must be weighed
in the overall assessment of whether they are better off overall under the Agreement. At the
same time, the Agreement improves the position of part-time employees in several respects,
which must also be taken into account. It expands the circumstances in which part-time
employees will be paid overtime (clause 4.9.2 of the Agreement compared with clause 21.2(b)
of the Award) and introduces a higher minimum entitlement to hours of work (clause
2.2.3(a)(iii) of the Agreement compared with clause 10.9 of the Award). The Agreement also
provides part-time employees with a qualified right to request an increase to their hours which
can only be refused on reasonable business grounds (clause 4.3.4(g) of the Agreement). Part-
time employees also have the benefit of the rostering principles in clause 4.3.1 of the
Agreement.
[22] As to the fact that the Agreement does not contain an equivalent of the Award provision
requiring termination payments to be made within seven days, we consider this to be a relatively
minor matter. This was also a difference between the 2017 Agreement and the Award and there
is no evidence of it having caused disadvantage to employees (or rather, former employees).
The same can be said of the Agreement’s provision allowing employees to be required to use
annual leave during a close-down without the conditions imposed by the Award, including that
the requirement be reasonable and that written notice be given to the employee. We consider
that the Agreement provision is to be read down in the context of s 93(3) of the FW Act, which
allows enterprise agreements to include terms allowing for employees to be required to take
leave, but only if the requirement is reasonable. Whether notice was provided would affect
whether the requirement was reasonable.
[23] This brings us to the question of the significance, for the purposes of the BOOT, of
clause 4.3.3 of the Agreement, which allows employees to work voluntary additional shifts on
the same day as a rostered shift. RFFWU Inc contended that the Award prohibited such shifts,
which it characterised as ‘split’ shifts. It also said that ‘historically’, additional hours could be
worked as overtime, but it did not substantiate this with reference to any provisions of the
Award or its antecedents, or to any evidence. RFFWU Inc said that the new provision was akin
to one allowing for voluntary overtime, which was not an inherent benefit to employees, and
that in this case it was a detriment because employees would not receive any overtime payment
as they would under the Award in respect of the ‘second shift’. RFFWU Inc further contended
that, although the clause states that the additional shifts are voluntary, it was ‘clear’ that whether
[2024] FWCFB 250
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employees have agreed to such shifts would be used by Coles to inform future rostering
decisions, and that workers who were threatened with roster changes would be forced to
consider them to avoid adverse consequences. It referred to the statement of Ms Juliana who
said, at [21], that if she was approached to change her part-time days and an alternative was to
work such shifts, she would have to consider them.
[24] Coles agreed with RFFWU Inc that the Award prohibits voluntary additional shifts that
are not continuous with the rostered shift on the same day, but contended that the effect of
clause 4.3.3 was to permit employees who wanted to work such shifts to do so, making it
possible for them to earn additional income. Coles submitted that RFFWU Inc was wrong to
say that employees who worked voluntary additional shifts under the Award would be entitled
to overtime and that it had offered no justification for this assertion, nor was it compatible with
RFFWU Inc’s submission that these shifts were prohibited under the Award. The arrangements
in clause 4.3.3 were not akin to voluntary overtime, the overtime provisions in the Award would
not be engaged, and the most that could be said of a voluntary additional shift worked under
the Award was that it would be in breach of the Award. Coles said that the additional shifts
under clause 4.3.3 were entirely voluntary and that there was simply no basis to say that
employees would be forced to work these shifts.
[25] Clause 15.3 of the Award states that ‘ordinary hours of work on any day are continuous’.
It therefore precludes ‘split’ shifts. The benefit of this is the prevention of various disabilities
that might be experienced by an employee being required to work such shifts, such as personal
inconvenience, additional commuting time and fatigue. However, clause 4.3.3 of the
Agreement operates in a way which removes these potential detriments. First, it is only at the
request of an employee that an additional shift may be undertaken. The employee must initiate
the matter (see clause 4.3.3(b) and (d)). There will be some workers for whom voluntary
additional shifts are an unattractive proposition because they are inconvenient. Those workers
will not request to work them and cannot be required to do so. Other employees may want to
work these shifts. They will be able to request to work them and thereby earn additional income
that they would not have been able to earn under the Award. The clause simply gives employees
work choices. Secondly, clause 4.3.3 prescribes minimum breaks between shifts which will
guard against fatigue. Thirdly, we cannot identify any other dimension of disadvantage
associated with the working of voluntary additional shifts by employees in the particular
circumstances of this Agreement. In particular, we reject the contention of RFFWU Inc that
employees who worked such shifts under the Award would be entitled to overtime. The Award
does not say this, nor is there any implication to that effect.
[26] At the hearing, two concerns were raised concerning the volitional nature of the
voluntary additional shifts. First, Coles was asked to confirm the understanding of the Full
Bench that a request to work voluntary additional shifts could only be made by an existing
employee, and that it could not be made by a prospective employee, who might apprehend this
to entail an improved prospect, or even the satisfaction of some condition of gaining
employment. Coles confirmed that the request must be made by an existing employee. It has
subsequently submitted an undertaking to this effect, for the avoidance of any doubt, to address
the concern raised. Secondly, Coles was asked to comment on whether there might be a BOOT
concern connected with clause 4.3.3(d), which allows employees to unilaterally revoke their
agreement to work voluntary additional shifts only on 28 days’ notice, as this relatively lengthy
notice period might, on one view, compromise the quality of an employee’s consent to the
arrangements. Coles has submitted an undertaking that the notice of an employee to revoke
their agreement to work voluntary additional shifts will take effect from the commencement of
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the next roster cycle, or following the conclusion of any published roster, whichever is later.
The Full Bench sought and received views from the bargaining representatives pursuant to s
190(4) and certain modifications were suggested. However the undertaking meets our concerns
in its current form. Overall, and subject to these undertakings, we view clause 4.3.3 as either a
benefit for those employees who may wish to use it, or as neutral for those who do not.
[27] We are satisfied that the Agreement passes the BOOT. The Agreement provides terms
of employment that are more beneficial to employees than those in the Award, including
marginally higher salaries. These terms outweigh the terms which, in certain respects, are less
beneficial than those in the Award. In our opinion, each award covered employee and each
reasonably foreseeable employee will be better off overall under the Agreement. We have
reached this conclusion having undertaken the global assessment required by s 193A(2). We
have also considered the views that have been expressed about the BOOT by the employers,
employees, and bargaining representatives for the Agreement, as we are required to do by
s 193A(3).
AMIEU objections
[28] In its Form F18 declaration, the AMIEU opposed the approval of the Agreement on the
basis that Coles had ‘removed’ it from the proposed agreement, leaving only the SDA and the
AWU to remain ‘present within the agreement’. It objected to clause 1.2.4 of the Agreement,
which states that the Agreement will cover the SDA and the AWU, and to Part 12, in which
Coles recognises the SDA and the AWU (in North Queensland) as unions with coverage of
employees covered by the Agreement and confers certain benefits on those unions, including
arrangements for deduction of union membership fees, union noticeboards, and delegates’
rights, including paid leave to attend delegate training. The AMIEU contended that its exclusion
from these arrangements made these clauses ‘objectionable terms’ within the meaning of s 194
of the FW Act, and thus unlawful per s 186(4), because they had the effect of permitting a
contravention of Part 3-1, including in particular s 350, which prohibits an employer from
making an ‘inducement’ to an employee to take ‘membership action’, which includes becoming
or ceasing to be a member of a union. It said that the exclusion of the AMIEU would harm
employees by limiting their knowledge of other unions they could join, by limiting the role of
AMIEU delegates, and by de-legitimising the AMIEU.
[29] We reject these contentions. In the absence of any evidence, we could not conclude that
the mere fact that an enterprise agreement confers certain representational benefits on some
unions but not others results in a contravention of s 350 of the FW Act or has the effect of
permitting contraventions of s 350. Although in Part 12 Coles expressly recognises that the
SDA and the AWU have coverage of work undertaken by its employees, this does not imply a
rejection of the coverage that other unions might have. It is a normal and acceptable incidence
of bargaining that some unions will play a more prominent role than others and have greater
influence in negotiating terms and conditions, including in relation to union-related matters.
This does not connote some de-legitimisation of the other unions.
[30] Further, the AMIEU has not been excluded from the coverage of the Agreement.
Whether a union is covered by an agreement depends on whether it was a bargaining
representative that has given notice to the Commission under s 183(1) that it wants the
agreement to cover it, as the AMIEU has done in this case. Coles does not dispute that the
AMIEU has coverage of employees covered by the Agreement. Further, we note that ‘union’ is
defined in Appendix 1 of the Agreement as an organisation registered as such under the Fair
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Work (Registered Organisations) Act 2009 (Cth) that is entitled to represent the industrial
interests of an employee covered by the Agreement. This includes the AMIEU. The practical
effect of this will be that the AMIEU will be able to represent its members under the dispute
resolution procedure. Clause 13.1.2(b) allows any union to initiate a dispute on behalf of a union
member.
[31] We appreciate that the AMIEU would like to have obtained the agreement of Coles to
be included in the new arrangements in respect of union matters that are found in Part 12 of the
Agreement, but the fact that Coles did not agree does not mean that Part 12 contains
objectionable provisions within the meaning of s 12 of the FW Act. These provisions do not
require or have the effect of requiring a contravention of Part 3-1. The only provision in Part
3-1 that was said to be offended was s 350. We fail to see how benefits conferred on one or
more unions under an agreement can be said to amount to an inducement to employees to
become members of those unions or to cease being members of other unions. It seems to us that
there would at the very least need to be some evidence about the effect of the impugned
provisions and their tendency to effect or affect membership action in order for such a
conclusion to be available. There is no such evidence in this case.
Employee objections concerning removal of ‘top-up’ arrangements
[32] A number of employees covered by the Agreement have sent correspondence to the
Commission expressing their opposition to the approval of the Agreement on the basis that they
believe they will not be better off overall under the Agreement than under the current 2017
Agreement, because of the fact that the Agreement removes the top-up arrangements referred
to earlier. However, the top-up arrangements are a term of the 2017 Agreement, not the Award.
The BOOT does not inquire as to whether an enterprise agreement results in employees being
better off than under the previous enterprise agreement. The comparator is the relevant award.
An enterprise agreement passes the BOOT if the Commission is satisfied that each award
covered employee and each reasonably foreseeable employee would be better off overall if the
agreement applied to the employee than if the relevant modern award applied to the employee.
As we have said earlier, we are satisfied that the Agreement passes the BOOT. The
correspondence from the employees does not cause us to have any concerns that any of the
other approval requirements for the Agreement have not been met.
Conclusion
[33] Coles has provided undertakings in relation to clause 5.1.2, as well as the two concerns
raised in respect of clause 4.3.3 of the Agreement. As earlier stated, those undertakings meet
our concerns. We are satisfied that the undertakings will not cause financial detriment to any
employee covered by the Agreement or result in substantial changes to the Agreement. The
undertakings are appended to this decision as Attachment 1 and are taken to be terms of the
Agreement. Subject to the undertakings, we are satisfied that the requirements of ss 186, 187
and 188 of the FW Act have been met. The SDA, the AWU and the AMIEU have given notice
under s 183 that they want the Agreement to cover them. As required by s 201(2) of the FW
Act, we note that the Agreement covers those organisations.
[34] The Agreement was approved on 3 May 2024. In accordance with clause 1.1 of the
Agreement and s 54(1)(b) of the FW Act it will operate from 7 October 2024. The nominal
expiry date of the Agreement is 3 May 2028.
[2024] FWCFB 250
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PRESIDENT
Appearances:
R Sweet KC with A Crocker, counsel, for Coles Supermarkets Australia Pty Ltd.
W Friend KC for the Shop, Distributive and Allied Employees Association.
G Taylor for The Australian Workers’ Union
B Swan for The Australasian Meat Industry Employees Union.
J Cullinan for Retail and Fast Food Workers Union Incorporated.
Hearing details:
2024.
Melbourne and Sydney, by video using Microsoft Teams:
30 April.
THE FAIR WORK FAI COMMISSION THE
[2024] FWCFB 250
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Attachment 1
Printed by authority of the Commonwealth Government Printer
AE524516 PR774513
UNDERTAKINGS IN THE FAIR WORK COMMISSION Matter No .: AG2024/1124 Re Application by: Coles Supermarkets Australia Pty Ltd and Liquorland (Australia) Pty Ltd I, Robert Rondinelli, Head of Employee Relations - Coles Group, have the authority given to me by Coles Supermarkets Australia Pty Ltd and Liquorland (Australia) Pty Ltd to give the following undertakings with respect to the Coles Retail Enterprise Agreement 2024 (Coles EA): 1. Clause 5.1.2 of the Coles EA will have no effect. 2. Clause 4.3.3(d) of the Coles EA will operate such that the notice given by a team member to revoke their agreement to work Voluntary Additional Shifts will take effect from the commencement of the next roster cycle, or following the conclusion of any published roster, whichever is later. 3. Clause 4.3.3(e) of the Coles EA has the effect that only a team member who has commenced employment with Coles under the Coles EA can agree to work a Voluntary Additional Shift. These undertakings are provided on the basis of concerns raised by the Full Bench of the Fair Work Commission in the application before the Fair Work Commission. Signature Date 30 April 2024
https://www.fwc.gov.au/documents/agreements/approved/AE524516.pdf
[2024] FWCFB 250
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1 [2021] FWCFB 3635.
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb3635.htm
