CASE PROCEDURES – evidence – s.590 Fair Work Act 2009 – Full Bench – application for termination of agreement after its nominal expiry – previous order issued 9 June 2017 – on 15 July 2017 Ms Vickers sent a number of documents including an amended application for an order for the production of documents (15 July application) against Wesfarmers and its controlled entities including Coles – Coles characterised 15 July application as lacking a legitimate forensic purpose and Ms Vickers had no basis to advance the serious allegations that she had made against Coles – Full Bench inferred Ms Vickers intended to test adequacy of Coles response to previous order – application made too late for Commission’s consideration before 17 July hearing – Coles and Wesfarmers submitted application made too late – Ms Vickers further submitted Coles produced few relevant documents; the evidence demonstrated Coles not made reasonable effort to comply with order; no basis for any order for production upon Wesfarmers to be restricted as there may have been relevant documents held by Wesfarmers that did not reach the board level; Cole’s decision to limit scope of undertakings relating to the 2014 Agreement established Coles culpability; representatives of Coles could give ‘direct evidence’ about documents held by Coles and Wesfarmers – Coles submitted Ms Vickers had provided no reason for proposed expansion; no utility to include authorisation of any person; extension unwarranted and oppressive and further broadening amounted to a requirement for general discovery – Full Bench found decision to enter into and apply for the approval of 2014 Agreement was made internally within Coles – no documents pertaining to the authorisation or sanctioning of 2014 Agreement – declined to exercise discretion in favour of making the orders sought by Ms Vickers in respect of Wesfarmers – also declined to make orders for production directed to controlled entities – order sought in 15 July application not issued instead issued order for production attached to Full Bench’s decision – authorised officer of Coles Supermarkets Australia P/L and Bi-Lo P/L directed to file and serve on Ms Vickers an affidavit verifying compliance with attached order for production and the order for production issued on 9 June 2017. Coles Supermarkets Australia P/L and Bi-Lo P/L Retail Agreement 2011
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