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

[2019] FWC 3555

[2019] FWC 3555

FAIR WORK COMMISSION

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) T/A Aldi Stores
(AG2018/7411)

COMMISSIONER LEE MELBOURNE, 24 MAY 2019

Application for approval of the ALDI Jandakot Agreement 2018.

[1] This matter involves an application for approval of the ALDI Jandakot Agreement 2018 (the 2018 Agreement)by Aldi Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) T/A Aldi Stores (the Applicant). The application was lodged with the Fair Work Commission (the Commission) on 20 December 2018. The Shop, Distributive and Allied Employees Association (SDA) are a bargaining representative for the Agreement.

[2] On 11 February 2019, the Applicant sent correspondence to the Commission copied to the SDA, and stated that the SDA’s Form F18 – Statutory declaration of employee organisation in relation to the application for approval (F18) appeared to contain an application for an “indefinite” adjournment and the Applicant wished to be heard in relation to such application. The Applicant opposes any adjournment or deferral of the application and seeks that the application be dealt with in the usual way in a timely manner. The SDA oppose that course and submit that consideration of the Applicant’s application be adjourned or deferred.

[3] The matter was listed for Mention Hearing on 9 April 2019. Directions were issued subsequently for the parties to file written submissions and the matter would be determined on the papers. The parties consented to that course of action.

Submissions of the SDA

[4] In summary, the SDA submit that:

•  There is an Agreement, the ALDI Jandakot Agreement 2015 (the 2015 Agreement) that covers the same employees that will be covered by the 2018 Agreement.

•  As the 2015 Agreement does not expire until 4 April 2020, in the event the 2018 Agreement is approved, it will not apply to any employees until 4 April 2020. There is no prejudice to any employee of the Applicant by deferring the application.

•  The SDA objects to the approval of the 2018 Agreement on grounds relating to the manner of the explanation to those provided with the opportunity to vote for the 2018 Agreement. The SDA’s objections also encompass an array of BOOT objections, similar to BOOT objections raised in connection with the Applicant’s application for the approval of two other agreements, being the ALDI Prestons Agreement 2017 (AG2017/1925) (the Prestons Agreement) and ALDI Stapylton Agreement 2017 (AG2017/1946) (the Staplyton Agreement) . The Prestons Agreement and the Staplyton Agreement are both listed for hearing before Vice President Catanzariti on 20 and 21 August 2019. The SDA submit that the application for the 2018 Agreement should be delayed in order to discourage the possibility competing alternative decisions.

•  The basis for such adjournments in relation to the Aldi Agreements is not without precedent. 1 Further, the SDA may be placed in a position of having to “unscramble a scrambled egg” if the matter is determined before Vice President Catanzariti has made a decision regarding the Prestons Agreement and Stapylton Agreement, and that the Vice President in dealing with those applications is exercising “authority delegated” to him by the Loaded Rates Agreement Full Bench.

[5] The SDA submit that: “…the above factual matrix strongly militates in favour of the conclusion that consideration of the present application for approval should be adjourned or deferred, being the application:

a) most recent in time; and

b) least likely to occasion prejudice to any employee were it to be adjourned in circumstances where the nominal expiry date of the current agreement it seeks to replace is still approximately 12 months away.

It should also be emphasised that there is no present need to expedite the approval of the agreement before the Commission.

The application should be adjourned until the hearing and determination by his Honour Vice President Catanzariti of the BOOT matters delegated to his Honour to hear and determine in relation to the Loaded Rates Agreement Case.” 2

Submissions of the Applicant

[6] The Applicant submits that they do not seek expedition of the application. Rather, they seek that it be dealt with in the usual way in a timely matter.

[7] The Applicant agrees that should the 2018 Agreement be approved it will not apply to employees covered by it until the nominal expiry of the 2015 Agreement has passed. However, the Applicant notes that the approval of the 2015 Agreement is currently subject to appeal. In the event the appeal is successful, the Applicant is seeking certainty by having in place a new Agreement which would then apply to employees.

[8] The Applicant concedes that it may be the case that the BOOT objections raised in the Prestons Agreement and Stapylton Agreement cases are similar, however the agreements are not identical.

[9] Joining the application of approval of this Agreement with the proceedings before Vice President Catanzariti will involve widening the scope of those proceedings to deal with non-BOOT related objections which will only complicate the approval applications already being dealt with by the Vice President.

[10] The Loaded Rates Agreement decision provides guidance for applying the BOOT to loaded rates and the Applicant submits that they have taken these into account in the making of the 2018 Agreement.

Consideration

[11] I am not persuaded that the application for approval should be deferred, delayed or adjourned. The submissions of the Applicant that the application be dealt with in the usual manner in a timely way are persuasive.

[12] The Agreements before the Vice President and the current application are not identical, and the grounds of objection differ. In the circumstances, there is no real benefit in delaying the hearing of the application. Joining the application with the matters before Vice President Catanzariti will unnecessarily complicate those proceedings. Further, while the Vice President is dealing with matters referred to him by the Full Bench, his honour is dealing with those matters as a single member of the Commission.

[13] The 2018 Agreement and the objections to it can be dealt with consistent with the prevailing law, including the application of the principles in the Loaded Rates decision to the BOOT considerations so far as they are relevant.

[14] The 2015 Agreement is subject to appeal. Should that appeal be successful, and the 2018 Agreement has not been approved by reasons of its deferral, the Applicant would likely be prejudiced as they would have to “unscramble the egg” by way of moving to Modern Award based remuneration. On the other hand, there is no significant prejudice to the SDA in the event the current application is to proceed in the usual manner and not be delayed.

[15] I agree with the Applicant’s submissions at paragraphs 37, 38 and 39 which distinguish the proceedings in SDA v ALDI Foods Pty Ltd 3and the ALDI Regency Park Agreement 2015 matter:

“The SDA also rely on the adjournment granted by a Full Bench in SDA v ALDI Foods Pty Ltd. 4 The common and discrete matter in those agreements was whether the NERR issued complied with the legislative requirements.

The matters of objection raised by the SDA in these proceedings go beyond whether the agreements comply with the BOOT.

With respect to the Regency Park Agreement raised by the SDA, this matter has been remitted to the Commission from the High Court following its decision in ALDI Foods Pty Ltd v Shop, Distributive and Allied Employees Association.7 The remittal from the High Court was for a Full Bench of the Commission to determine the appeal of the SDA, made in 2015, against the decision and orders of Deputy President Bull according to law. This matter is separate and distinct from the other Full Bench proceedings regarding the BOOT given its nature, timing and the orders made by the High Court.” 5

[16] The application for the approval of the 2018 Agreement should proceed in the usual manner. The Applicant seeks the hearing of the application for approval be in Sydney given the Applicant’s witnesses are located in New South Wales.

[17] It is appropriate that the matter is dealt with by member of the Commission based in New South Wales. The application will be allocated to a New South Wales based Commission Member for hearing.

COMMISSIONER

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 1   [2018] FWCFB 5727

 2 SDA Submissions, 17 April 2019 at [17].

 3   [2018] FWCFB 5727.

 4   [2018] FWCFB 5727.

 5   ALDI submissions, 29 April 2019.