Shop, Distributive and Allied Employees Association v Aldi Foods Pty Limited
[2017] FCA 6
•13 January 2017
FEDERAL COURT OF AUSTRALIA
Shop, Distributive & Allied Employees Association v ALDI Foods Pty Limited
[2017] FCA 6
File number: VID 349 of 2016 Judge: JESSUP J Date of judgment: 13 January 2017 Catchwords: PRACTICE AND PROCEDURE – Stay of Full Court order pending application for special leave to appeal – Consideration of industrial rights affected by stay Legislation: Fair Work Act 2009 (Cth) s 186 Cases cited: Jennings Construction Limited v Burgundy Royale Investments Pty Ltd(No 1) (1986) 161 CLR 681
Marconi’s Wireless Telegraph Company Ltd v The Commonwealth (No 3) (1913) 16 CLR 384
Date of hearing: 13 January 2017 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr W Friend QC with Ms A Duffy Solicitor for the Applicant: A.J. Macken & Co. Counsel for the First Respondent: Mr G Hatcher SC with Ms A Perigo Solicitor for the First Respondent: Enterprise Law ORDERS
VID 349 of 2016 BETWEEN: SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES ASSOCIATION
Applicant
AND: ALDI FOODS PTY LIMITED AS GENERAL PARTNER OF ALDI STORES (A LIMITED PARTNERSHIP)
First Respondent
FAIR WORK COMMISSION
Second Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
13 JANUARY 2017
UPON the first respondent undertaking:
(a)From 13 January 2017 until the matter is disposed of in the High Court, separately to maintain in regard of all operations regulated by the Regency Park Agreement (“the Agreement”) which would otherwise be regulated by the provisions of the General Retail Industry Award 2010 (“the Award”):
(i)all rosters;
(ii)all time records, recording actual hours worked, including a new record to be introduced for recording paid rest breaks and meal breaks;
(iii)all wage records;
(iv)all annual leave records;
(v)all personal leave records;
(vi)a running calculation reconciling on a fortnightly basis, employees’ monetary entitlements under the Award were the Award to apply including a comparison for each period of pay of amounts actually paid pursuant to the Agreement;
(vii)all records of employees agreeing to conditions where an agreement is necessary or relevant to an Award entitlement; and
(b)In the event of the application for special leave, or any subsequent appeal to the High Court, being unsuccessful, to provide a copy of these records to the applicant.
THE COURT ORDERS THAT:
1.The operation of Order 2 made by the Full Court on 29 November 2016 be stayed pending the determination of the first respondent’s application to the High Court for special leave to appeal from the making of that order and, if special leave be granted, and subject to any order of the High Court itself, pending the hearing and determination of the resulting appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JESSUP J:
Before the Court is an interlocutory application for a stay of the operation of an order made by the Full Court on 29 November 2016 in this proceeding. By that order, the Full Court granted certiorari in relation to the decision and orders of a Full Bench of the Fair Work Commission made on 22 February 2016, and of a Deputy President of the Commission made on 22 September 2015.
The decision of the Deputy President, which was affirmed by the Full Bench, was to approve, pursuant to s 186 of the Fair Work Act 2009 (Cth) (“the Act”), the Regency Park Agreement (“the agreement”) as an enterprise agreement under the Act. Absent the approval of that agreement, persons employed by the respondent in its new Regency Park operations would have their terms and conditions of employment regulated by the General Retail Industry Award 2010 (“the award”). The effect of the Full Court’s order is that the respondent was neither obliged nor entitled to comply with the agreement in relation to the Regency Park operations, and was, rather, obliged to comply with the award in relation to those operations.
The respondent has now applied for special leave to appeal to the High Court against the orders made by the Full Court on 29 November 2016, including the order to which I have referred. Its basis for seeking a stay pending the hearing and determination of that application for special leave, and any resulting appeal, is what it describes as the maintenance of the status quo over the period of time involved.
There has been argument before me today with respect to what is the subject matter of the litigation which conventionally requires consideration in an application of this kind. In my view, the subject matter of the litigation is the validity of the orders of the Commission of 22 September 2015, and 22 February 2016. If the approval of the agreement was valid, the terms and conditions of employment of employees of the respondent employed in its Regency Park operations have been and continue to be regulated by the agreement, rather than by the award. But the Full Court held that that approval was not valid, and quashed it. The result was that those terms and conditions of employment have been, and continue to be, regulated by the award rather than by the agreement. Thus, in a practical sense, the issue is which of two industrial instruments made or approved under the Act is legally operative in the regulation of those terms and conditions of employment.
I have been referred to the judgment of Brennan J in Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681. In that matter, his Honour said (at 684):
A stay to preserve the subject of litigation pending an application for special leave is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal.
His Honour referred to Marconi’s Wireless Telegraph Company Ltd v The Commonwealth (No 3) (1913) 16 CLR 384, in which the High Court had granted an order staying the operation of one of its own orders pending the hearing of an application to the Privy Council for special leave to appeal. In a passage set out by Brennan J in Jennings, the Court then said:
The Court will not ordinarily grant an application of this kind unless very strong and special grounds are show. This is a very peculiar case. The conditions are such that, on the one hand, if the stay is granted without more, the whole benefit of the action may be lost to the plaintiffs, while, on the other hand, unless the stay is granted on some fair terms, the defendants’ appeal will be nugatory. It really is a question of the preservation of the rights of the parties without disregard of the balance of convenience.
Likewise in the present case, there are a number of considerations which take it out of the ordinary run:
(1)This was not inter partes litigation in the conventional sense of one party seeking justice and/or compensation in relation to some alleged wrongdoing or excess of power which was to his or her detriment. The applicant is not a party to the agreement, and the interest which gave it standing both in the Commission and here was a general industrial one, rather than an individual one. No employee whose terms and conditions of employment would, if the respondent is correct, be regulated by the agreement complains of a wrong done to him or her.
(2)Normally, when an application for special leave to appeal is made in the High Court, there will have been two previous court judgments dealing with the merits of the case, most recently, a judgment of an intermediate court of appeal. In the present case, the Full Court exercised the original jurisdiction. Until that judgment, the respondent had the benefit of the approval decision of the Commission, and of a later decision of a Full Bench of the Commission affirming the approval. Until the delivery of judgment by the Full Court, the respondent was not only entitled but obliged to act conformably with those decisions. In an important area of business activity which provides employment to many persons, it could not be suggested that the respondent was obliged to sit on its hands until it knew the outcome of the applicant’s case in this Court. And, of course, in the employment of those persons, until the judgment of the Full Court, it had no choice but to comply with the agreement rather than with the award.
(3)In the affidavit of Margaret McNaughton, made 21 December 2016, amongst the grounds articulated by the respondent is the following:
The enterprise agreements ALDI employees are employed under are different to the modern awards that would apply if the enterprise agreement was not in place. Some of those differences include that the enterprise agreement:
i.provides for different work arrangements with respect to shift lengths and break times;
ii.contains provision for annualised salaries for some classifications and includes bonuses based on performance;
iii.contains an averaging hours system providing bankable hours to employees to facilitate flexibility in working hours should an employee wish to have time off;
iv.provides for an additional week of annual leave to salaried store employees.
For the respondent now to have to comply with the award rather than with the agreement would, therefore, involve more than dollars and cents. It would require a degree of reorganisation of employment practices, and involve some disruption to the remuneration expectations of persons who are not parties to this proceeding. That is, of course, an unavoidable consequence of the order made by the Full Court. But if there is to be an appeal in the High Court, and if that appeal succeeds, what the applicant now submits should be done by the respondent will need to be undone. There is, therefore, a situation in which an already scrambled egg would need to be unscrambled, and then re‑scrambled.
(4)Counsel for the applicant have very fairly conceded that they are in no position to point to any balance of practical detriment for those subject to the agreement if a stay is granted. I have been referred to situations in which such persons may on particular assumptions and under particular circumstances be disadvantaged by being regulated by the agreement, but these are theoretical rather than actual, practical, situations to which the applicant points.
To establish the merits of its case for special leave to appeal, the respondent points to the written case which it has filed in the High Court, and correspondingly, the applicant points to the written case it has filed. Having perused those written cases, I accept the submission of counsel for the applicant that the respondent’s case for special leave is not self-evidently strong. But the intensely pragmatic approach which the High Court takes on special leave applications, together with the considerations to which I have referred which take this case out of the normal run, incline me to the view that the respondent should not be put out of court merely because it is unable to demonstrate that its special leave application is most likely to succeed.
It is true, of course, that the applicant is entitled to the fruits of the litigation in which it has succeeded. However, those fruits hang on the tree of administrative justice, rather than on that of benefits and detriments, the usual context for the invocation of this kind of metaphor.
As will be apparent, this is a case in which it is impossible to achieve perfect interlocutory justice for all concerned. One way or the other, there is a risk that, during the period when the case is pending in the High Court, the respondent will be renumerating its employees otherwise than conformably with a statutory instrument by which it is bound.
In this state of things, ultimately what has influenced me is the respondent’s preparedness to offer an undertaking in the following terms:
The respondent undertakes:
a.From 13 January 2017 until the matter is disposed of in the High Court, separately to maintain in regard of all operations regulated by the Regency Park agreement, which would otherwise be regulated by the provisions of the General Retail Industry Award:
i. All rosters.
ii.All time records recording actual hours worked including a new record to be introduced for recording paid rest breaks and meal breaks.
iii. All wage records.
iv. All annual leave records.
v. All personal leave records.
vi.A running calculation reconciling on a fortnightly basis employees’ monetary entitlements under the award where, were the award to apply, including a comparison of each period of play of amounts actually paid pursuant to the agreement.
vii.All records of employees agreeing to conditions where an agreement is necessary or relevant to an award entitlement; and
b.In the event of the application for special leave or any subsequent appeal to the High Court being unsuccessful, to provide a copy of these records to the applicant.
By this undertaking, I accept that the respondent will have done all that it might reasonably be required to do to protect the position of those who might be materially, as distinct from theoretically, affected by the stay which it seeks. Because it does not represent in Court the employees to whom payments would be made under the award, the applicant is unable to offer a corresponding undertaking. That is not a mark of criticism of the applicant, of course, but it is a fact which must be taken into account.
In all the circumstances I am persuaded that the stay sought by the respondent should be granted.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 19 January 2017
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