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

[2020] FWCA 2631

[2020] FWCA 2631

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) T/A ALDI Stores
(AG2020/529)

ALDI MINCHINBURY AGREEMENT 2020

Retail industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 19 MAY 2020

Application for approval of the ALDI Minchinbury Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the ALDI Minchinbury Agreement 2020 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] The Shop, Distributive and Allied Employees Association raised some concerns in relation to Undertaking 4. Having considered those concerns, I am satisfied that Undertaking 4 is appropriate and should be accepted. My reasons for rejecting the concerns raised by the Shop, Distributive and Allied Employees Association in relation to Undertaking 4 are as follows:

● It is not theoretically possible to have a notice period paid out and time in lieu worked. If a payment in lieu of notice is made, the employment relationship comes to an end and there is no prospect of the employee being required to take time off in lieu. In those circumstances, the Undertaking provided requires the payment of accrued time in lieu on termination.

● If an employee is required to take time off in lieu during a notice period, the employee is still being provided with actual notice of the termination of their employment. The fact that part of the notice period is not worked and is taken off as time in lieu does not alter this position.

● A requirement to take accrued time off in lieu during a notice period is not inconsistent with the obligations under the Fair Work Act or the Agreement to provide notice or make a payment in lieu of notice.

● I accept that a requirement under the Agreement, read together with the Undertakings, for an employee to take time off in lieu on one month’s notice or during a notice period is a detriment compared to the underlying award, because the award does not permit an employer to require an employee to take time off in lieu. However, when this and other detriments are weighed against the range of benefits provided under the Agreement, I am satisfied that all employees and prospective employees will be better off under the Agreement than they would be if the award applied to them.

[5] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[6] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] The Shop, Distributive and Allied Employees Association being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[8] The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[9] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 26 May 2020. The nominal expiry date of the Agreement is 18 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A