ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership)

[2015] FWC 7457

[2015] FWC 7457

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership)
(AG2015/4917)

DEPUTY PRESIDENT BULL SYDNEY, 28 OCTOBER 2015

s.589 Interim Decision for the application for approval of the ALDI Jandakot Agreement 2015, approval of agreement to await appeal decision of the ALDI Regency Park Agreement 2015

[1] On 8 September 2015, an application for approval of an enterprise agreement pursuant to s.185 of the Fair Work Act 2009 (the Act) was made by ALDI Foods Propriety Limited as General Partner of ALDI Stores (a Limited Partnership) trading as ALDI Stores (ALDI/the applicant).

[2] The Agreement is titled Enterprise Agreement ALDI Jandakot 2015 (the Jandakot Agreement) which is to operate for a period of four years and covers the Jandakot region which is defined as the Distribution Centre operated by ALDI in Orion Rd Jandakot Airport (the Distribution Centre) and all ALDI stores which operate in Western Australia.

[3] The Form F16 Application for Approval of an Enterprise Agreement which was completed by a Viktor Jakupec, Managing Director ALDI Stores, stated that Enterprise Law was its bargaining representative, and that the employees to be covered by the Jandakot Agreement did not appoint a bargaining representative/s.

[4] The Form F17 Employer Statutory Declaration in support of an application for approval of an enterprise agreement made by Mr Jakupecstated that the Jandakot Agreement covers all operational employees who would otherwise be covered by a modern award, who are employed in ALDI’s Jandakot region other than administrative employees and senior managers with disciplinary responsibilities.

[5] At point 2.10 of the Statutory Declaration it is stated that 13 employees will be covered by the Jandakot Agreement of whom 10 cast a valid vote all supporting approval of the Agreement. Of the 13 employees said to be covered by the Agreement, eight are stated at 4.3 of the Statutory Declaration as being part-time.

[6] In approving an enterprise agreement the Commission has a number of statutory tasks to conduct which include:

● if the agreement is not a Greenfields agreement, that the agreement has genuinely been agreed to by the employees covered by the agreement; and
● that the agreement passes the better off overall test (BOOT)

[7] On the face of the application and the Statutory Declaration filed there was no indication that the Jandakot Agreement was a greenfields agreement and that it had not been genuinely agreed to by employees covered by the Jandakot Agreement.

[8] With respect to the BOOT, Mr Jakupec in his Statutory Declaration at 3.6 stated he believed the Jandakot Agreement passes the BOOT. While the Agreement contains some provisions which are less beneficial than the relevant awards it provides higher hourly rates than the relevant awards and some superior conditions.

[9] Ascertaining what the less beneficial conditions were was not obvious on the initial documentation provided by ALDI.

[10] On 7 October 2015, the Fair Work Commission (the Commission) wrote to Enterprise Law regarding issues with the nominal expiry date of the Jandakot Agreement and the BOOT. On 8 October 2015, a response was received including an undertaking in respect to the BOOT.

[11] Subsequently the Commission became aware that an appeal had been filed against a decision to approve the ALDI Regency Park Agreement 2015 (Regency Park Agreement) which had recently been approved on 22 September 2015. The Jandakot Agreement is virtually an identical agreement to the Regency Park Agreement. The Regency Park appeal was not brought to the Commission’s attention by ALDI and raises a number of significant issues of principle which appear to have the same application to the Jandakot Agreement which is still to be approved.

[12] On 19 October 2015, the Commission wrote to Enterprise Law requesting further information regarding coverage of the Jandakot Agreement, in particular the actual operations the Jandakot Agreement proposes to cover and where the employees who voted on the Jandakot Agreement currently work. A request for a list of the less beneficial entitlements under the Jandakot Agreement in comparison with the relevant awards was also requested.

[13] On 22 October 2015, Enterprise Law responded by advising that the Jandakot Agreement was to cover all employees working in the Distribution Centre in Orion Road Jandakot Airport and all stores operating in Western Australia and listed 22 store addresses in Western Australia.

[14] Further in their response it was advised that employees who voted on the Jandakot Agreement would transfer to one of the stores in Western Australia from interstate upon the Agreement being approved and the store becoming operational. This raised an issue as to whether in fact either the Jandakot Distribution Centre or any of the West Australian stores were operational at the time the vote to approve the Jandakot Agreement taken by employees was conducted.

[15] The advice received from Enterprise Law stated that “each of the employees who voted on the Jandakot Agreement had requested a transfer to one of the operations which will be covered by their proposed Agreement upon the Agreement being approved and the relevant establishment becoming operational.”

[16] The matter was listed for a hearing on 27 October 2015 wherein further information was sought from ALDI on a range of issues. Ms Perigo of Counsel appeared for ALDI. It was made clear at this hearing that the employees said to be covered by the Jandakot Agreement while employed by ALDI do not currently work in any of the operations covered by the Agreement as none are operational. The employees, eight of whom are said to be part-time currently work outside Western Australia and were said to have requested a transfer to one of the Western Australian operations following ALDI asking for ‘expressions of interest’ from employees who may wish to transfer to Western Australia once the Jandakot Distribution Centre and West Australian stores are constructed and operational.

[17] Such a scenario where employees of ALDI are said to be covered by the Jandakot Agreement on the basis they have requested a transfer from their current employment positions outside Western Australia leads to the question as to whether they were entitled to vote on the Jandakot Agreement while not working in any of the positions covered by the Agreement at the time of the vote.

[18] Section 181(1) of the Act provides that an employer who will be covered by a proposed enterprise agreement may request the employees who are employed at the time who will be covered by the agreement to approve the agreement by voting for it.

[19] Section 182(1) of the Act states that if the employees of the employer that will be covered by a proposed single enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under s.181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

[20] A Full Bench of the Commission in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and others 1 when examining the expression ‘will be covered by the agreement’ as expressed in s.182(1) of the Act, stated that the expression ‘will be covered’ means those actually falling within the coverage clause at the time of the vote, as opposed to those it was anticipated would be covered by the agreement on the basis they had been mobilised to perform work in the region covered by the agreement.2

[21] In the decision of the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd and Another 3it was held that the reference to the group of employees covered by an agreement in s.186(3) is a reference to “the whole class of employees to whom the agreement might in the future apply, rather than the group of employees which actually voted on whether to make the agreement”.

[22] Having perused the appeal grounds in the Regency Park Agreement approval appeal, it is clear that the issue of whether employees employed outside the State the Agreement covers, who had voted for the approval of the Agreement, on the basis they will be employed at some future time under the Agreement will be agitated in the appeal. Presumably they are currently employed under another industrial instrument.

[23] On this basis Counsel for ALDI agreed with the Commission that the approval decision for the Jandakot Agreement should not be determined until after the appeal outcome in the Regency Park Agreement is known.

[24] In the interim, ALDI is requested to provide further information regarding the application in particular:

● a copy of the ‘Impact Statement’ referred to at 2.6 of the F17;

● information on the nature and logistics of the bargaining processes having regard to the 13 employees being located in Victoria, New South Wales and Queensland;

● details regarding the expression of interest process;

● the offer of employment to the 13 employees and their acceptance of the offer;

● what is meant by the caveat on the operative date for the pay rates for Transport and Distribution Employees at Schedule 4 Part B – Remuneration; and

● why the Jandakot Agreement is not a greenfields agreement.

DEPUTY PRESIDENT

Appearances:

Anna Perigo of Counsel on behalf of the applicant

Hearing details:

Sydney

2015

27 October

 1   [2012] FWAFB 2206

 2   Ibid at [50] – [52]

 3 [2015] FCAFC 16 Besanko J at [2]

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