Shop, Distributive and Allied Employees Association v Aldi Foods Pty Limited as General Partner of Aldi Stores (A Limited Partnership)
[2019] FWCFB 4241
•21 JUNE 2019
| [2019] FWCFB 4241 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Shop, Distributive and Allied Employees Association
v
ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership)
(C2015/6909)
(C2016/1264)
VICE PRESIDENT CATANZARITI | SYDNEY, 21 JUNE 2019 |
Appeal against decision [[2016] FWCA 2028] of Deputy President Bull at Sydney on 5 April 2016 in matter number AG2015/4917 Appeal against decision [2015] FWCA 6373 of Deputy President Bull at Sydney on 22 September 2015 in matter number AG2015/3510 Appeal against decision [[2015] FWCA 6373] of Deputy President Bull at Sydney on 22 September 2015 in matter number AG2015/3510.
[1] Some of the background to these appeals is set out in our decision in Shop, Distributive and Allied Employees Association v ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) (September 2018 Decision).1 We need not repeat it. The September 2018 Decision, inter alia, concerned an application by the Shop, Distributive and Allied Employees Association (SDA) to amend its notice of appeal in the Regency Park appeal (C2015/6909). The majority2 decided to defer determination of the application until after the Full Court of the Federal Court of Australia had decided a judicial review application brought by ALDI Foods Pty Limited (ALDI) against the Full Bench decision in ALDI Foods Pty Limited v Shop, Distributive and Allied Employees Association (Minchinbury and Derrimut decision).3 Deputy President Gostencnik would have allowed the amendment.4
[2] The Full Court in ALDI Foods Pty Limited as General Partner of ALDI Stores v Shop, Distributive and Allied Employees Association5 has since determined the judicial review application against the Minchinbury and Derrimut decision. The Full Court dismissed the application.
[3] Also relevant is the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Amendment Act) which amended, among other things, s.188 of the Fair Work Act 2009 (Act) to provide a mechanism for the Commission to conclude that an enterprise agreement has been ‘genuinely agreed’, within the meaning of s.186(2)(a), despite ‘minor procedural or technical errors’. The Amendment Act received the Royal Assent on 11 December 2018 and the amendments to s.188 commenced on 12 December 2018.
[4] The SDA now presses its application to amend its notice of appeal in the Regency Park appeal. It seeks to add the following appeal ground:
“The Deputy President erred in approving the agreement in circumstances where no valid NERR under s.174 of the Fair Work Act was given to employees as required by s.173 of the Fair Work Act prior to the making of the agreement.”
[5] In the proceedings the subject of the September 2018 Decision, ALDI contended that the sole matter remitted to the Full Bench of the Commission by the High Court in respect of the Regency Park Agreement 2015 (Regency Park) was whether that agreement passed the better off overall test (BOOT). ALDI contended that the High Court had before it two matters. The first concerned the coverage of the Regency Park agreement. The second concerned whether the agreement passed the BOOT. The High Court allowed ALDI’s appeal in relation to the coverage issue, but ALDI failed in its appeal in relation to the BOOT issue. The Full Bench of the Commission’s decision, dismissing the SDA’s appeal against the decision to approve the Regency Park agreement, was affected by jurisdictional error and was quashed by a writ of certiorari, and a writ of mandamus was issued directed to the Full Bench of the Commission requiring it to proceed to determine the SDA’s appeal according to law.
[6] ALDI argued that as a consequence it is the SDA’s appeal in respect of the BOOT that was remitted by the High Court to the Full Bench of the Commission to be determined according to law and that this leaves only the first instance decision concerning the BOOT before the Full Bench, and nothing else.
[7] At [22] of the September 2018 Decision, Deputy President Gostencnik rejected ALDI’s contention and we adopt what is there set out without repeating it. To the extent that the discretionary considerations canvassed by the Deputy President in the September 2018 Decision remain relevant we also adopt the Deputy President’s reasoning and conclusions.
[8] ALDI raises some further discretionary considerations. These relate to the impact of s.188(2) noted earlier on the proposed amended appeal ground.
[9] ALDI contends that the application of s.188(2) upon the impugned notice of employee representational rights (NERR) will require determination should the SDA's application to amend its notice of appeal be granted. It says that although the application of s.188 is not a matter for the Full Bench to determine with respect to the application to amend the appeal grounds, s.188(2) is relevant because:
• the transitional provisions of the Amendment Act will likely apply to the appeal containing the amended ground;
• the impugned NERR will be assessed in light of s.188(2), taking into account matters such as those examples set out in the Revised Explanatory Memorandum; and
• consequently the application by the SDA to amend its appeal grounds has no real utility as the result will likely be favourable to ALDI notwithstanding any minor deficiency in the NERR underpinning the Regency Park agreement.
[10] ALDI contends there is no public interest in such an appeal given the application of s.188(2) has been considered extensively by a Full Bench of the Commission in Huntsman Chemical Company Australia Pty Limited TIA RMAX Rigid Cellular Plastics & Others.6It says the SDA has made no submission or produced any evidence that any employee will beadversely affected or subjected to any practical detriment should the Regency Park agreement,which has beenoperational since September 2015, remain on foot. It says that there is no contention advanced that any employee who voted for the Regency Park agreement did notgenuinely agree to it. The Regency Park agreementidentifies 16 employee signatories and the application for approval of the Regency Park agreement states that it covers 17 employees. Sixteen employees cast a valid vote, 15 of whom voted to approve the Regency Park agreement. ALDI contends that the SDA have not shown any public interest would attach to their proposed ground of appeal in circumstances where the decision at first instance did not display error and in circumstances where the legislation has now changed.
[11] ALDI also contends that if the SDA's application is granted and the Full Bench determines that s.188(2) does not apply, it is prejudiced by the granting of the application to amend.
[12] We are not persuaded that any of these matters weigh against the exercise of our discretion to allow an amendment to the SDA’s notice of appeal.
[13] Section 188(2) introduces a two stage process for determining whether a failure to comply with the form and content requirements of a NERR will vitiate genuine agreement. First, the departure must be a "minor procedural or technical error'' in respect of the relevant requirement. Secondly, employees covered by the enterprise agreement must not be likely to have been disadvantaged by the failure to comply. Self-evidently questions of fact and degree are involved.
[14] If we are to grant the application to amend, and if the appeal is upheld on that ground, or if permission to appeal on that ground is resisted by reason of s.188(2), ALDI will likely need to lead some evidence about its contention as to the absence of relevant employee disadvantage. We cannot assume, at the stage of considering an application to amend a notice of appeal, that ALDI will be able to make good its contentions. Moreover, the SDA is not required at this stage to put on a positive evidentiary case demonstrating an adverse impact on relevant employees as a consequence of the contended non-compliance. Indeed, as we apprehend the SDA’s case, it says the departure in the impugned NERR was neither a minor procedural nor technical error. Whether that is so remains to be determined.
[15] In addition and putting s.188(2) to one side, the very same issue which the SDA seeks to agitate in its proposed amended ground of appeal was considered in the Minchinbury and Derrimut decision in which the Full Bench determined that the identical departure in the form of the NERR to that which is apparent in this case, was not trivial but was substantive for the reasons therein stated. As already noted, the judicial review application against the Minchinbury and Derrimut decision was dismissed. The SDA was not involved in the approval proceeding for the Regency Park agreement. That this is so also weighs in favour of allowing the amendment.
[16] A further discretionary consideration weighing in favour of allowing the application to be amended is that the issue of the validity of a NERR, in the same terms, is also raised in the Jandakot appeal (C2016/1264). We will therefore be required to determine whether s.188(2) is engaged and whether it saves that agreement.
[17] For these reasons we will allow the SDA to amend its notice of appeal in Regency Park appeal (C2015/6909) by adding the following ground of appeal:
“The Deputy President erred in approving the agreement in circumstances where no valid NERR under s.174 of the Fair Work Act was given to employees as required by s.173 of the Fair Work Act prior to the making of the agreement.”
VICE PRESIDENT
Appearances:
Mr W Friend QC for the Appellant
Mr GJ Hatcher SC with Ms A Perigo of Counsel for the Respondent
Hearing details:
2019
Sydney
6 June
Final written submissions:
Appellant 10 May 2019
Respondent 26 April 2019
Printed by authority of the Commonwealth Government Printer
<PR709486>
1 [2018] FWCFB 5727
2 Catanzariti VP and Cirkovic C; See [2018] FWCFB 5727 at [14]-[15]
3 [2018] FWCFB 2485
4 [2018] FWCFB 5727 at [25]
5 [2019] FCAFC 35
6 [2019] FWCFB 318
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