• Update Regarding the Coles Supermarkets Enterprise Agreement
  • July 21, 2016 | Author: Adam Salter
  • Law Firm: Jones Day - Sydney, New South Wales Office
  • In last month's Update, we reported that the Full Bench of the Fair Work Commission ("Commission") found that the Coles Store Team Enterprise Agreement 2014-17 ("2014 Agreement") did not pass the "better off overall test" ("BOOT"). Coles was given until 10 June 2016 to provide certain undertakings and if such undertakings were not provided, the Full Bench would make an order quashing the 2014 Agreement. However, Coles indicated that it will not provide undertakings, instead reverting to the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 ("2011 Agreement") while preserving wage and penalty rates (as contained in the 2014 Agreement) and honouring a previously agreed-upon pay rise of 1.5 percent.

    In relation to the 2011 Agreement, Ms Penny Vickers lodged an application with the Commission pursuant to section 225 of the Fair Work Act 2009 (Cth) seeking termination of the Agreement on the basis that it too does not pass the BOOT. Ms Vickers is an employee of Coles working three shifts per week at the Mount Ommaney store in Queensland. However, the Full Bench had not yet made an order quashing the decision to approve the 2014 Agreement at the time of her filing the application. The Commission dismissed Ms Vickers' application on 17 June 2016 with consent, after Ms Vickers agreed to withdraw her application on the basis that the 2014 Agreement remained in effect at the time of filing.

    The Commission noted that it was open to Ms Vickers making a further application to terminate the 2011 Agreement, once an order of the Full Bench in relation to the 2014 Agreement has come into effect. The Full Bench has in turn made an order quashing the 2014 Agreement, which comes into effect on 5 July 2016. It is therefore likely Ms Vickers will file a further application to terminate the 2011 Agreement after this time.