[2017] FWCFB 3131

The attached document replaces the document previously issued with the above code on 9 June 2017.

Ingrid Stear
Associate to Vice President Hatcher

Dated 13 June 2017

[2017] FWCFB 3131
FAIR WORK COMMISSION

DECISION


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 2017 1, 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. 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:

[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:

(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 appeal 5) 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 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 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 quashed 7, 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

[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:

[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.

[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 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 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.

(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.

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

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.

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.

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

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
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:

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.

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

 1   [2017] FWC 2609

 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]

 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.

 7   [2016] FWCFB 2887 at [6]-[33]

 8   The Commission also has specific powers concerning the conduct of ballots under the Fair Work (Registered Organisations) Act 2009

Printed by authority of the Commonwealth Government Printer

<Price code C, PR593588>