[2012] FWA 7986
FAIR WORK AUSTRALIA
DECISION
Fair Work Act 2009
s.739 - Application to deal with a dispute
Coles Supermarkets Australia Pty Ltd
v
Transport Workers' Union of Australia; Shop, Distributive and Allied
Employees Association
(C2012/2384)
(C2012/2841)
Retail industry
VICE PRESIDENT WATSON
SYDNEY, 14 SEPTEMBER 2012
Dispute concerning award coverage - whether Fair Work Australia ought to make a
recommendation or express an opinion - whether it is appropriate for Fair Work Australia to
make a recommendation or express an opinion - whether a recommendation or an opinion is
an appropriate course to ensure settlement of the dispute - dispute resolution clause - Fair
Work Act, ss.595,739.
Introduction
[1]
This decision concerns a dispute over award coverage arising from two applications by
Coles Supermarkets Australia Pty Ltd (Coles) pursuant to s.739 of the Fair Work Act 2009
(the Act) to have Fair Work Australia conduct a dispute resolution process. The first
application (C2012/2384) relates to the dispute resolution clause in the General Retail
Industry Award 20101 (Retail Award). The second application (C2012/2841) relates to the
dispute resolution clause in the Road Transport and Distribution Award 20102 (Transport
Award). Together these applications will be referred to as the Award coverage dispute.
[2]
The Award coverage dispute arise from negotiations between Coles, the Shop,
Distributive and Allied Employees Association (SDA) and the Transport Workers’ Union of
Australia (TWU) for an enterprise agreement to cover the Customer Service Agents (CSAs)
employed by Coles to deliver groceries bought online. The central issue in the dispute is
which modern award classification most appropriately applies to the CSAs and which modern
award will be the comparison award for the purposes of the better off overall test (BOOT).
Coles and the SDA contend that the relevant modern award is the Retail Award while the
TWU contends that the relevant award is the Transport Award.
[3]
Coles initially sought an arbitration of the dispute pursuant to the dispute resolution
clauses in the Retail and Transport Awards (the awards). The TWU does not consent to Fair
Work Australia arbitrating the dispute. On 13 August 2012, in an ex tempore decision, I
determined that Fair Work Australia does not have jurisdiction to arbitrate the dispute in the
absence of consent by all parties. Following that decision, Coles requested that Fair Work
Australia make a recommendation or express an opinion on the issue. The SDA supports that
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course. The TWU opposes that course. The parties were directed to file submissions on
whether this course of action should be adopted in all the circumstances.
[4]
This decision deals with the issue of whether Fair Work Australia ought to make a
recommendation or express an opinion on the question of which award applies to the CSAs.
Relevant provisions and legislation
[5]
Clause 9.4 of the Dispute Resolution clause of the Retail Award and its equivalent in
the Transport Award (clause 10.4) are in identical terms. They provide that:
“Fair Work Australia may exercise any method of dispute resolution permitted by the
Act that it considers appropriate to ensure the settlement of the dispute.”
[6]
Section 595(2) of the Act is relevant. It provides:
“595 FWA’s power to deal with disputes
(1) FWA may deal with a dispute only if FWA is expressly authorised to do so under
or in accordance with another provision of this Act.
(2) FWA may deal with a dispute (other than by arbitration) as it considers
appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.”
Position of the parties
[7]
Coles submits that Fair Work Australia should make a recommendation or express an
opinion for the following reasons:
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
It is authorised by s.595(2)(b) of the Act and the dispute resolution provisions in the
awards do not require the consent of the parties to deal with disputes in this manner.

Making a recommendation or expressing an opinion is an appropriate method to
ensure the settlement of the dispute. Coles submits that if Fair Work Australia
expresses an opinion or makes a recommendation, Coles will adopt the findings for
the purposes of ongoing enterprise bargaining negotiations and therefore Fair Work
Australia can be satisfied that a recommendation or opinion will effectively resolve
the dispute over award coverage and assist the bargaining process.

Fair Work Australia has the discretion under the dispute resolution provisions in the
awards to make a recommendation or express an opinion. Coles submits that Fair
Work Australia should exercise its discretion because a recommendation has been
acknowledged as being a useful tool to solve disputes and the recommendation can be
made on the evidence which has already been filed. The absence of consent is not
decisive and a recommendation is likely to assist the negotiation process.
[2012] FWA 7986
[8]
The SDA supports Coles’ position and submits that Fair Work Australia should deal
with the Award coverage dispute by making a recommendation or expressing an opinion. The
SDA submits that they are willing to accept the recommendation or opinion and use the
outcome to continue negotiations with Coles and the TWU. The SDA submits that the
negotiations should resume as soon as practicable to finalise a new enterprise agreement and
secure higher rates of pay and better conditions for the affected employees.
[9]
The TWU accepts that Fair Work Australia is authorised to deal with the Award
coverage dispute by way of making a recommendation or expressing an opinion. However the
TWU objects to this method of dispute resolution on the grounds that it would pre-empt the
outcome of:

proceedings that are currently being heard in the Federal Magistrates Court, initiated
by the TWU, that relate to the alleged underpayment of wages of two CSAs based on
the contention that the Transport Award applies, and

whether any enterprise agreement which applies to the CSAs satisfies Fair Work
Australia for the purposes of the BOOT and is able to be approved under the Act.
[10]
Further the TWU submits that a recommendation is not an “appropriate course to
ensure the settlement of the dispute” as required by clause 9.4 of Retail Award and 10.4 of
Transport Award. The TWU submits that a recommendation or opinion has no legal force and
is not binding on either party. The TWU submits that there is no agreement between the
parties to be bound by the recommendation or opinion and therefore there is no basis for Fair
Work Australia to be satisfied that a recommendation or opinion would ensure the settlement
of the dispute.
[11] Coles further submits, in reply to the TWU that it undertakes to comply with a
recommendation or an opinion so that any recommendation or opinion can be a practical
method of dispute resolution. However, Coles submits that it does not intend to adopt any
recommendation or opinion beyond the dispute before Fair Work Australia. Coles also
submits that it does not agree with the TWU’s contention that lack of consent to abide by a
recommendation or opinion is a basis for Fair Work Australia to conclude that a
recommendation or opinion is not appropriate to settle the award coverage dispute as per the
dispute resolution provisions in the awards.
Should Fair Work Australia make a recommendation on the Award Coverage Dispute?
[12] It is accepted that Fair Work Australia has the power to make a recommendation as to
which award applies to the CSAs. The question is whether it ought to do so in the
circumstances. The question is a legal question - determined by applying the facts in this
matter to the relevant award definitions. Legal questions can never be determined in a final
sense by Fair Work Australia, although the determination of legal questions is a common
ancillary function to other roles performed by the Tribunal. In this case the scope of awards
and questions as to the interaction between awards arises from the award provisions
formulated by the Australian Industrial Relations Commission during the award
modernisation process.
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[13] The dispute as to which award applies has had a detrimental effect on the enterprise
bargaining negotiations and remains a sticking point in those negotiations. There is therefore a
clear utility in making a recommendation to assist the negotiation process as sought by both
Coles and the SDA. The determination of the applicable award is also likely to be an issue
that will be relevant to the application of the BOOT, should an agreement be reached. A
preliminary determination of that issue may not only assist the parties in finalising the
agreement, but make the approval process more straight forward. As the effective author of
both awards, Fair Work Australia is in a good position to determine the scope of the
instruments it created.
[14] On the other hand, the TWU has commenced proceedings in the Federal Magistrates
Court to decide substantially the same question. A judicial determination of this matter will be
more authoritative and will constitute a binding determination on the parties to the matter. At
the very least it will be a decision to which Fair Work Australia will need to have regard in
relation to future application of the BOOT to an agreement covering the CSAs.
[15] In my view it is preferable that there is one determination of the issue. As the TWU is
seeking a determination by way of award enforcement and the proceedings are well under
way, I do not consider that it is desirable that I engage in an overlapping or prior process. In
the exercise of my discretion I will refrain from hearing from the parties on the award
coverage question and making a recommendation as to my view on the matter. I emphasise
that this is because of the anticipated early determination of the same question by the Federal
Magistrates Court. If the assumption I have made about an early determination changes then
the parties are free to seek a reconsideration of this decision.
VICE PRESIDENT WATSON
Appearances:
S Wood QC with M Felman for Coles Supermarkets Australia Pty Ltd
A Hatcher SC for the Transport Workers’ Union of Australia
J De Bruyn for the Shop, Distributive and Allied Employees Association
Hearing details:
Melbourne.
2012.
August 13.
Final written submissions:
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Coles Supermarkets Australia Pty Ltd, 4 September 2012.
Transport Workers’ Union of Australia, 28 August 2012.
Shop, Distributive and Allied Employees Association, 30 August 2012
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