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

[2021] FWCA 143

[2021] FWCA 143

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
(AG2020/3802)

ALDI STAPYLTON AGREEMENT 2020

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 3 FEBRUARY 2021

Application for approval of the ALDI Stapylton Agreement 2020.

[1] ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership) T/A ALDI Stores (ALDI) has applied for approval of a single enterprise agreement known as the ALDI Stapylton Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The applicant’s Form F16 stated that the Shop Distributive and Allied Employees Association (Qld and NSW Branch) (SDA), and the Transport Workers’ Union Queensland (TWU) were employee organisation bargaining representatives in the negotiation of the Agreement along with four employee bargaining representatives. Each union filed a Form 18 statutory declaration in relation to the approval of the Agreement, giving notice that it wished to be covered by the Agreement pursuant to s.183 of the Act.

[3] Following the application for approval of the Agreement being made, my chambers corresponded with the applicant’s representative requesting further information concerning application of the National Employment Standards (NES), the date of operation of the Agreement and requested a copy of a document referred to in the application.

Coverage

[4] The Agreement will cover all employees who are employed under the classifications set out in clause 5.3 in the Stapylton Region and will apply to the existing Distribution Centre and stores and any new stores opening during operation of the Agreement. Administrative employees and senior managers with disciplinary responsibilities are not covered. 1 I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being geographically or organisationally distinct.

NES

[5] Clause (7) of the Agreement – How this Agreement interacts with the NES provides that where there is any conflict with the NES (National Employment Standards) and the Agreement the NES will apply as a minimum.

Shiftwork

[6] In response to chamber enquiries, ALDI advised that whilst it is possible for an employee to work beyond 11:00pm it would not occur on a regular basis and any hours worked beyond 11:00pm would be hours additional to their rostered shift or overtime. 2

[7] ALDI have advised that employees engaged as caretakers either full-time or part-time and required to regularly work their ordinary hours over seven days of the week working Sundays and public holidays, will be entitled to an additional weeks’ annual leave.

[8] ALDI have also advised that all employees covered by Schedule 4 - Transport and Distribution Employees of the Agreement receive five weeks annual leave.

[9] Noting clause 7 of the Agreement, I am satisfied that the NES will prevail where there exists any inconsistency between the Agreement and the NES.

BOOT

[10] For the purposes of this Agreement and the Better Off Overall Test (BOOT), the modern award comparators as per s.193(1) of the Act for the various Agreement classifications listed schedules 1 – 4 of the Agreement are the:

•  General Industry Retail Award 2020

•  Storage Services and Wholesale Award 2020

•  Road Transport and Distribution Award 2020

•  Manufacturing and Associated Industries and Occupations Award 2020 and the

•  Miscellaneous Award 2020

[11] The Full Bench in Armacell Australia Pty Ltd 3 made the following observation with respect to the BOOT:

“The BOOT, as the name implies, requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement.”

[12] Taking into account the higher rates of pay under the Agreement and the Agreement’s improvement and reductions as identified at questions 10-13 of the applicant’s Form F17 statutory declaration, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

Genuine Agreement

[13] Section 186 of the Act sets out a number of general requirements for approval of an enterprise agreement, one of which is that an employer must ‘take all reasonable steps’ to ensure that the terms of the agreement and the effect of those terms are explained to the relevant employee.⁴ A failure to comply with this pre-approval requirement will preclude the proposed agreement from being an agreement capable of being approved by the Fair Work Commission (Commission).⁵

[14] Subsection 186(2)(a) requires that the Commission must be satisfied that the agreement was ‘genuinely agreed’ to by the employees covered by the agreement, the meaning of which is set out at s.188.

[15] Ms Joanne Brown - Managing Director, who completed the Form F17 employer’s statutory declaration, has stated that on 27 August 2020 a Notice of Employee Representational Rights was posted on the noticeboard in each store in the ALDI Stapylton Region and also emailed to employees. On 6 November 2020, a number of actions took place:

•  Information about the ballot was placed on noticeboards

•  Information about the ballot was emailed to each employee

•  A copy of the proposed agreement was placed on the noticeboards

•  An explanation of the impact of the proposed agreement on employee terms and conditions was provided to each employee by email

[16] Between 6 and 13 November 2020, managers spoke to employees to confirm receipt of all material and the impact statement was reviewed with employees and the key changes to current terms and conditions of employment were flagged with employees. 6 I further note that the SDA and TWU and four employees are named as bargaining representatives for the Agreement. On the basis of the information before the Commission I am satisfied that the Agreement has been genuinely agreed.

Consultation term

[17] While noting that clause 39 – Consultation of the Agreement states that the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will apply to the Agreement, the model consultation term prescribed by the Commission’s Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

Minor procedural or technical error

[18] The applicant applied to waive an irregularity in the form or manner in which the application was made pursuant to s.586(b)) of the Act with respect to the requirements of s.180(3)(a), being that the employer must take all reasonable steps to notify the relevant employees of the time and place at which the vote will occur. The grounds for the application were set out in an accompanying statement of Ms McNaughton 7 the bargaining representative and solicitor for ALDI.

[19] The background to this application is that prior to the Agreement being made, employees were advised the vote for the proposed Agreement would be conducted by an external organisation during the period 14 November to 26 November 2020. Due to difficulties experienced by the external provider, the vote commenced one day later than advised on 15 November and was completed as advised on 26 November 2020.

[20] Section 586(b) of the Act refers to the waiver of an irregularity in the form or manner in which an application is made before the Commission. This section of the Act would not appear to enable the Commission to waive a failure to comply the pre-approval requirements at s.180(3) of the Act prior to the approval application having been filed.

[21] Following a request from the Commission concerning this issue, the applicant’s representative advised that it relies upon s.188(2) of the Act to overcome the irregularity. 8 This sub section provides that the Commission can be satisfied that an agreement has been genuinely agreed to by employees despite minor procedural or technical errors in certain circumstances, the sub section is in the following terms:

“(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174.”

[22] Ms McNaughton’s statement and the F17 statutory declaration of Ms Joanne Brown attest to 1,400 employees being covered by the Agreement and eligible to vote, of which 1,170 employees voted with 878 employees being in favour of approving the Agreement. 9 This results in over 50% of eligible employees voting to approve the Agreement. On this basis I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error where a majority of employees eligible to vote, have voted to approve the Agreement.

[23] In the circumstances set out above, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 10 I am satisfied that the voting having commenced one day later than what was notified to employees constitutes a minor procedural error for the purposes of compliance with s.180(3)(a) of the Act.

[24] As a result of the above conclusions, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

[25] I am also satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met and the Agreement is approved.

[26] The Shop, Distributive and Allied Employees Association and the Transport Workers' Union of Australia, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

Date of Operation

[27] ALDI have advised 11 that the ALDI Stapylton Enterprise Agreement 2017 (2017 Agreement), which was approved by the Commission on 16 October 2019 and commenced operation from 23 October 2019 with a nominal expiry date of four years from the date of approval, covers employees that this Agreement will also cover.

[28] Pursuant to s.58 of the Act only one enterprise agreement can apply to an employee at any one time. Further, an in-term agreement, that is one that has not passed its nominal expiry date, will continue to apply despite there being a replacement enterprise agreement (s.58(2)(d). In view of these circumstances, the Agreement cannot operate while the 2017 Agreement has not yet passed its nominal expiry date and remains in operation.

[29] ALDI have also applied to terminate the 2017 Agreement simultaneously with this Agreement approval application, 12 thus overcoming the difficulties posed by s.58(2)(d) should the 2017 Agreement be terminated.

[30] At clause 4 of the Agreement – Duration of the Agreement, it is stated that the Agreement will operate in the first pay period occurring at least seven days after its approval by the Fair Work Commission (the Commission). ALDI have clarified that the application of this clause means that the Agreement will commence on the first day of the next full pay period occurring at least seven days after its approval by the Commission. 13

[31] In accordance with s.54 of the Act and sub clause 4.1 of the Agreement, the Agreement will commence to operate in the first pay period occurring at least 7 days from the date of approval. In accordance with sub clause 4.2 of the Agreement the nominal expiry date of the Agreement is 2 February 2025 being four years after the date of approval.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE510080  PR726130>

 1 F17 at [4]

 2   Written response of 19 January 2021 and attached statement of Ms McNaughton

 3   [2010] FWAFB 9985

4 S.186(2)(a) requires ‘genuine agreement’ which is defined at s.188 which requires compliance with s.180(5) which requires an employer to take all reasonable steps to explain the terms of the Agreement and their effect

5 Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 Flick J at [91]

 6 F17 at [21-22]

 7   Dated 23 December 2020

 8   Correspondence of 19 January 2021

 9   It is noted that the number of employees said to be covered by the Agreement is slightly more than that stated in matter AG2020/3806 to terminate the existing 2017 enterprise agreement.

 10   [2019] FWCFB 318

 11 F17 at [7]

 12   AG2020/3806

 13   Correspondence of 19 January 2021