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 Act2009 (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
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.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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