“As the asserted benefits did not outweigh these potential reductions, the agreement did not pass the BOOT and could not be approved.
Accordingly, Coles was invited to provide further undertakings remedying the deficiency. The provision of such undertakings would have enabled the FWC to approve the agreement despite its concerns about the BOOT. Coles indicated on 9 June that it was not prepared to do so. Therefore, the agreement was found to have failed the BOOT and the original decision approving the agreement was quashed.
This means that the supermarket chain’s large workforce will remain subject to terms and conditions of employment negotiated under a 2011 agreement. More recently, the representative of the disaffected Coles workers has indicated that this group may seek to terminate the 2011 agreement, as they would be better off under the retail award; while the AMIEU is seeking to negotiate a specific new agreement for the Coles workers it represents.”