Shop, Distributive & Allied Employees' Association v Aldi Foods Pty Ltd (No 2)

The case of Shop, Distributive & Allied Employees' Association v Aldi Foods Pty Ltd (No 2) involves the determination of pecuniary penalties for breaches of the Fair Work Act 2009 (Cth) by Aldi Foods Pty Ltd. The Fair Work Ombudsman, acting on behalf of the Shop, Distributive & Allied Employees' Association, brought the matter before the court, asserting that Aldi had contravened sections 50 and 323 of the Act by requiring employees to perform work prior to their rostered start time without compensation. The legal issues in this case centred on the appropriate level of penalty to be imposed on Aldi for these breaches, taking into account various factors such as deterrence, the nature and extent of the contraventions, and Aldi's response post-discovery of the breaches.

The court considered several factors in assessing the penalty, including the deliberate nature of Aldi's policy requiring employees to perform work prior to their scheduled start time, the significant period over which the contraventions occurred, and the lack of an apology or public statement by Aldi to affected employees. The court also noted that Aldi had compensated employees after the initial liability decision and had taken corrective actions to prevent future breaches. However, the court found that Aldi's decision to litigate the matter despite clear evidence of the contraventions indicated a degree of aggravation, and the absence of an apology further mitigated any leniency based on contrition.

In determining the penalty, the court applied the principles established in Australian Building and Construction Commissioner v Pattinson, which emphasize the need for penalties to be proportionate and to serve the purpose of deterring future contraventions. The court concluded that a penalty of $40,000 for each contravention, totaling $80,000, was appropriate, considering the need for deterrence and the financial resources of Aldi. The court ordered Aldi to pay the penalties within 21 days of the date of the orders.