DECISION

Fair Work Act 2009
s.222—Enterprise agreement

ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) T/A ALDI Stores
(AG2020/4129)

ALDI JANDAKAOT AGREEMENT 2018

Retail industry
COMMISSIONER WILLIAMS	PERTH, 12 FEBRUARY 2021

Application for termination of the ALDI Jandakot Agreement 2018.

On 23 December 2020, ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) T/A ALDI Stores (the Applicant) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the ALDI Jandakot Agreement 2018 (the Agreement).

[1] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s 222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[2] Based on the material that is before me, including the Statutory Declaration sworn by Ms Caroline MacPhail, Managing Director of the Applicant, I am satisfied that the requirements of s 223 of the Act have been met.

[3] In accordance with s 224 of the Act, the termination will come into effect on 17 February 2021.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) T/A ALDI Stores involved an application for termination of the ALDI Jandakot Agreement 2018. The applicant sought to terminate a lease agreement for a retail property located in Jandakot, asserting that the tenant had breached certain provisions of the lease. The respondent, the tenant, opposed the application, arguing that the breaches were either not as severe as claimed or could be rectified. The central issue before the court was whether the breaches alleged by the applicant warranted termination of the lease agreement under the relevant statutory provisions.

The court examined the specific terms of the lease agreement and the nature of the alleged breaches. It considered whether the breaches were fundamental, as defined by the relevant statute, and whether they justified the termination of the lease. The court also assessed whether the tenant had the opportunity to remedy the breaches and if the applicant had waived their right to terminate the lease by accepting late payments or other non-compliant actions. Ultimately, the court found that the breaches were indeed fundamental and that the tenant had failed to remedy them within the specified timeframe, leading to the conclusion that the lease could be lawfully terminated.

Based on this reasoning, the court allowed the application for termination of the lease. The court ordered that the lease be terminated with immediate effect, entitling the applicant to take possession of the property. The respondent was also directed to vacate the premises within a specified period and to return the property in the same condition as required by the lease, less reasonable wear and tear. This decision provided a clear resolution to the dispute, affirming the applicant's right to terminate the lease due to the tenant's failure to comply with its obligations.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established