The Australian, June 14, 2017
The Fair Work Commission has found it “reasonably arguable” that Coles ought reasonably to have known a controversial pay deal could not satisfy the Fair Work Act’s better off overall test when the supermarket giant applied for its approval.
A commission full bench yesterday ordered Coles to produce documents relating to its application for approval of the 2014 deal, which was later found to have left some employees worse off than the award.
Ruling on an application by a self-represented Coles nightshift worker, Penny Vickers, the full bench said the company should produce a sample of records of employees working in three to five stores. It rejected Ms Vickers’s bid to obtain the pay records of all Coles’ 75,000 employees for specified four-week periods over the past six years.
Coles reverted to a 2011 deal after the commission quashed approval of the 2014 agreement.
Ms Vickers is now seeking the retrospective termination of the 2011 agreement, arguing that workers were still underpaid compared with the award.
Union officials have conceded the 2014 Coles deal would have potentially disadvantaged more than 11,000 of the supermarket chain’s workers, despite 90 per cent of employees voting to support it.
Ahead of hearings into Ms Vickers’s application in October, the full bench yesterday rejected her bid for a ballot of Coles workers to determine their attitude to her termination application.
It also rejected a bid by the Retail and Fast Food Workers Union to appear in the proceedings, finding it was not a registered organisation “nor has it applied for registration”.
The full bench found there was no evidence the union had any members employed by Coles, apart from two employees it said could appear in the proceedings directly.
It said requiring Coles to produce rosters and payroll data of its entire workforce over six years would be “oppressive in terms of time, cost and commercial risk”.
It also declined to make orders for the production of documents relating to the approval process for the 2011 deal.
But it rejected Coles’ application that no order be made with respect to the approval process for the 2014 agreement.
It said Ms Vickers’s bid to terminate the 2011 agreement was fundamentally based on the proposition that the erroneous approval of the 2014 deal was because of misleading conduct by Coles in relation to information given to employees and the FWC.
The commission said the documents, with some exceptions, have apparent relevance to that aspect of Ms Vickers’s case.
“We do not accept that Ms Vickers’s case in that respect has been advanced without any reasonable basis for it,’’ the full bench said.
“We consider it is reasonably arguable… that Coles ought reasonably to have known that the 2014 sgreement could not satisfy the BOOT when it applied for its approval.”