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ALDI Foods Pty Ltd

ALDI Foods Pty Ltd

Case [2013] FWC 3495 3 June 2013

Collective Agreements

National Employment Standards

Better Off Overall Test

Employment & Labour Law

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[2013] FWC 3495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ALDI Foods Pty Ltd
(AG2013/307, AG2013/319, AG2013/400)

ALDI MINCHINBURY AGREEMENT 2012, ALDI STAPYLTON AGREEMENT 2012, ALDI DERRIMUT AGREEMENT 2012

Retail industry
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	SYDNEY, 3 JUNE 2013

Applications for approval of the ALDI Minchinbury Agreement 2012, ALDI Stapylton Agreement 2012 and ALDI Derrimut Agreement 2012 - fairly chosen - geographically, operationally or organisationally distinct - genuinely agreed - consistency with National Employment Standards - better off overall test.

[1] These are applications by ALDI Foods Pty Ltd (ALDI) for the approval of three enterprise agreements known as the ALDI Minchinbury Agreement 2012 (the Minchinbury Agreement), the ALDI Stapylton Agreement 2012 (the Stapylton Agreement) and the ALDI Derrimut Agreement 2012 (the Derrimut Agreement) (collectively, the Agreements). The applications were made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreements are single-enterprise agreements.

[2] In 2011, ALDI applied to Fair Work Australia (FWA) for the approval of three enterprise agreements covering substantially the same subject matter and employees as the Agreements. These applications were dismissed by Commissioner McKenna in March 2012, 1 and the Commissioner’s decision was upheld by a Full Bench.2 The Agreements were negotiated to replace the enterprise agreements that were not approved. In the Declarations in support of the applications for approval, ALDI indicates that the Agreements were negotiated between the parties with the benefit of these decisions and with a view to ensuring compliance with the legislation.

[3] Declarations in respect of the applications were received from the Shop, Distributive and Allied Employees Association (SDA) and various branches of the National Union of Workers (NUW) and the Transport Workers’ Union of Australia (TWU). The SDA supports the approval of each agreement. The NSW branches of the NUW (NUW-NSW) and the TWU (TWU-NSW) oppose the approval of the Minchinbury Agreement. The Victorian branch of the TWU (TWU-Vic) opposes the approval of the Derrimut Agreement, while the Victorian branch of the NUW seeks to be covered by the Derrimut Agreement but has not indicated whether or not it supports approval. The Queensland Branch of the TWU (TWU-Qld) opposes the approval of the Stapylton Agreement. Ms Lynette Pearson, an employee bargaining representative in respect of that agreement, has written to the Fair Work Commission (the Commission) expressing concerns about it.

[4] The requirements that must be met before the Commission can approve an enterprise agreement are set out in ss.186 and 187 of the Act:

“186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ALDI Foods Pty Ltd [2013] FWC 3495
Case: [2013] FWC 3495
Decision Date: 3 JUNE 2013

CaseChat Overview and Summary

The applicants, ALDI Foods Pty Ltd, applied to the Fair Work Commission for the approval of three agreements made with their employees: the ALDI Minchinbury Agreement 2012, the ALDI Stapylton Agreement 2012 and the ALDI Derrimut Agreement 2012. The agreements were intended to replace existing enterprise agreements, and the applicants sought to ensure that the new agreements met the necessary legal requirements for approval under the Fair Work Act 2009. The applicants argued that the new agreements were fairly chosen, geographically, operationally or organisationally distinct, genuinely agreed and consistent with the National Employment Standards. They further contended that the agreements would result in employees being better off overall.

The central legal issues before the Commission were whether the new agreements were genuinely agreed upon by the employees, whether they were consistent with the National Employment Standards, and whether they would result in employees being better off overall. The Commission had to determine whether the agreements met the criteria for approval under the Fair Work Act 2009, including whether the agreements were fairly chosen, genuinely agreed, and consistent with the National Employment Standards. The Commission also had to consider whether the agreements would result in employees being better off overall, taking into account all relevant factors.

The Commission found that the new agreements met the necessary criteria for approval under the Fair Work Act 2009. The Commission was satisfied that the agreements were fairly chosen, genuinely agreed, and consistent with the National Employment Standards. The Commission also found that the agreements would result in employees being better off overall, taking into account all relevant factors. The Commission approved the new agreements, finding that they met the necessary legal requirements for approval.

The Fair Work Commission approved the ALDI Minchinbury Agreement 2012, the ALDI Stapylton Agreement 2012 and the ALDI Derrimut Agreement 2012, finding that they met the necessary legal requirements for approval. The Commission found that the agreements were fairly chosen, genuinely agreed, and consistent with the National Employment Standards. The Commission also found that the agreements would result in employees being better off overall, taking into account all relevant factors. The Commission approved the new agreements, and they will now replace the existing enterprise agreements.

Orders