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

[2021] FWCA 144

[2021] FWCA 144

FAIR WORK COMMISSION

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
(AG2020/3806)

ALDI STAPYLTON AGREEMENT 2017

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 3 FEBRUARY 2021

Application for termination of the ALDI Stapylton Agreement 2017.

[1] ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership) T/A ALDI Stores (ALDI) has made an application, pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act), to terminate the ALDI Stapylton Agreement 2017 1(the 2017 Agreement).

[2] The 2017 Agreement is a single enterprise agreement and was approved by the Commission on 16 October 2019. 2 The 2017 Agreement has not yet reached its nominal expiry date of 15 October 2023 which is four years from the date of approval.

Relevant Legislation

[3] The relevant provisions governing applications to terminate agreements before their nominal expiry date are set out at ss.220-224 of the Act as follows:

“220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

Consideration

S.220(1) Standing to make application

[4] In respect of s.220(1) set out above, and noting clause 3 - Parties to the Agreement of the 2017 Agreement, I am satisfied that the applicant is covered by the 2017 Agreement and thus has standing to make the termination application.

[5] Having been satisfied that the requirements of s.220(1) have been met, the Commission must terminate the 2017 Agreement (s.223) subject to being satisfied of the remaining requirements under the Act.

S.220(2) Reasonable steps

[6] Section 220(2) of the Act requires the employer to take all reasonable steps to notify employees of the time and place at which the vote will occur, the voting method and give employees a reasonable opportunity to decide whether to approve the proposed termination.

[7] By way of background, the proposed 2017 Agreement termination has proceeded on the basis that a replacement agreement would operate and have immediate effect upon termination of the 2017 Agreement, as set out in an accompanying statutory declaration of the Stapylton Managing Director, Joanne Brown.

[8] Ms Brown states that on 27 August 2020, employees were provided with details of the changes to terms and conditions of their employment proposed to be made in a new enterprise agreement that would replace the existing 2017 Agreement although the 2017 Agreement had not passed its nominal expiry date. Employees were advised that they would be invited to vote on whether they wished to terminate the 2017 Agreement if the proposed new agreement was approved by employees and the Fair Work Commission (the Commission).

[9] Ms Brown further states that on 6 November 2020, information about the ballot was placed on noticeboards in each store in the Stapylton region, the warehouse, the distribution centre and sent to each employee by email. Information was provided to employees regarding the changes to the terms and conditions of their employment if the new agreement the ALDI Stapylton Agreement 2020 (2020 Agreement) was approved and the 2017 Agreement terminated. 3

[10] On 15 November 2020, voting for the termination of the 2017 Agreement commenced and the voting concluded on 26 November 2020.

[11] Based on the statutory declaration of Ms Brown, I am satisfied that ALDI has complied with s.220(2) of the Act by taking all reasonable steps to notify employees of the time and place at which the vote was to occur, the voting method to be used and has provided a reasonable opportunity for employees to decide whether they wish to approve the proposed termination.

S.221(1) Must be majority vote

[12] As required by s.221(1) of the Act, an agreement that has not passed its nominal expiry date can only be terminated where the majority of employees covered by the agreement who cast a valid vote; vote to approve its termination.

[13] Ms Brown’s statutory declaration states that there were 1,390 employees covered by the 2017 Agreement. The total number of valid votes cast was 1,160 with 895 of the valid votes in favour of terminating the 2017 Agreement, being a majority of employees who cast a valid vote.

S.222(3)(a) To be filed within 14 days

[14] Section 222(3) requires an application to terminate an agreement to be made within 14 days after the termination is agreed to. The agreement to terminate was made on 26 November 2020, when the voting process concluded and the application was made to the Commission on 9 December 2020, which is within the 14 day period.

S.223(c) No other reasonable grounds

[15] With respect to s.223(c), I am further satisfied that there are no ‘other reasonable grounds’ for believing that the employees have not agreed to termination of the 2017 Agreement.

S.223(d) Views of employee organisations covered

[16] Subsection 223(d) requires the Commission to take into account the views of the employee organisation(s) covered by the 2017 Agreement. The 2017 Agreement approval decision of the Commission notes that the Shop Distributive and Allied Employees’ Association (SDA), the National Unions (sic) of Workers (now the United Workers’ Union [UWU] 4) and the Transport Workers Union5 gave notice under s.183 of the Act to be covered by the 2017 Agreement. 6

[17] On 13 January 2021, my chambers wrote to the SDA, UWU and the TWU, in relation to the proposed termination asking for their respective views on the proposed 2017 Agreement termination and requesting a response by no later than 5:00pm on Tuesday 19 January 2021.

[18] On the same day, the TWU Queensland responded advising that it was not opposed to the termination if the 2020 Agreement was approved simultaneously.

[19] On 19 January 2021, the SDA Queensland advised that it:

“is not opposed to the termination of the ALDI Stapylton Agreement 2017 as long as the ALDI Stapylton Agreement 2020 satisfies the BOOT test when it is approved.”

[20] To date the UWU have not provided a response.

[21] Having taken into account the views expressed by the TWU and SDA, they do not raise any concern that is not accommodated in this decision or the decision to approve the 2020 Agreement. 7

[22] On the basis that ALDI has complied with sub-ss. 220(2) and 221(1) of the Act, and there being “no other reasonable grounds’ as per s.223(d) for believing that employees have not agreed to the termination, and further noting the employee organisations’ views where provided, I consider that the requirements of the Act have been met and that it is appropriate to approve the termination of the 2017 Agreement.

S.224 Date of termination

[23] The application for termination of the 2017 Agreement and approval of the 2020 Agreement were lodged at the same time. The 2020 Agreement (AG2020/3802) was approved by the Commission on 3 February 2021 and in accordance with s.54 of the Act, and the terms of the 2020 Agreement, it is to operate from the first pay period occurring at least 7 days from the date of approval.

[24] Pursuant to s.224 of the Act, the termination of the 2017 Agreement will take effect on commencement of the operation of the 2020 Agreement. This will allow the 2020 Agreement to immediately provide coverage and employees will not be without any enterprise agreement coverage or need to revert to any modern award but employees will have the terms and conditions of their employment transition to the approved 2020 Agreement.

[25] An order to terminate the 2017 Agreement will issue concurrently with this Decision [PR726599].

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE505555  PR726131>

 1   AG2017/1943

 2   [2019] FWCA 6816

 3   Form F24A at 2.2

 4   The NUW deregistered on 11 November 2019 see [2019] FWC 7672 and became part of the United Workers’ Union see [2019] FWC 3931

 5   Transport Workers’ Union of Australia in the named employee organisation on the F18

 6   [2019] FWCA 6816 at [28]

 7   [2021] FWCA 143