Shop, Distributive and Allied Employees Association v ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership)
[2017] FWCFB 2494
•17 MAY 2017
| [2017] FWCFB 2494 |
| 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)
(C2016/1264)
| Vice President Catanzariti | melbourne, 17 MAY 2017 |
Appeal against decision [[2016] FWCA 2028] of Deputy President Bull at Sydney on 5 April 2016 in matter number AG2015/4917.
On 5 April 2016, Deputy President Bull issued a Decision,[1] which found that employees of ALDI Foods Pty Limited (“the Respondent”) were better off overall under the ALDI Regency Park Agreement 2015 (“the Agreement”).
On 1 June 2016, the Shop, Distributive and Allied Employees Association (“the Appellant”) lodged a Notice of Appeal, appealing the Decision of Deputy President Bull. The matter was listed for hearing on 13 July 2016. However, noting the concurrent proceedings before the Federal Court, we informed the parties by way of correspondence dated 29 June 2016 that we would adjourn the appeal of this matter pending the result of the Federal Court proceedings.
We note that the Federal Court has since handed down its judgment,[2] which quashed the Decision of the Full Bench[3] and the Decision of Deputy President Bull. Having regard to this judgment, the Appellant sought leave from the Commission to amend its grounds of appeal by way of correspondence dated 9 December 2016.
We also note that the Respondent applied for special leave to the High Court and was granted special leave on 8 March 2017.
On 22 March 2017, we issued Directions to the parties requiring the parties to make submissions in relation to the issue of granting the Appellant leave to amend its grounds of appeal. We also noted that our Decision in this regard would be determined on the papers.
Leave to Amend Grounds of Appeal
The matter before us essentially relates to whether the Appellant should be granted leave to amend its grounds of appeal, which it seeks to rely upon in the appeal.
Appellant’s submissions
The Appellant has sought leave to amend its grounds of appeal in the terms set out in the “Proposed Amended Grounds of Appeal” attached to its submissions. The Appellant gave notice of its intention to seek leave in correspondence to the Commission dated 9 December 2016.
The Appellant noted the Proposed Amended Grounds of Appeal contained an additional ground of appeal upon which the Appellant seeks leave to rely in the appeal. The Appellant stipulated that the additional appeal ground seeks to contend that Deputy President Bull erred in approving the Agreement because the employees who voted to approve the Agreement pursuant to section 182 of the Act were not working in the enterprise at the time it was approved by them. As such, the Appellant asserted that the Agreement could not be made under section 172(2)(a) of the Act because it was not made “with the employees who are employed at the time the agreement is made and who will be covered by the agreement” and, therefore, could not be approved by the Commission.
The Appellant relied on the Full Federal Court's decision in Shop, Distributive &Allied Employees Association v ALDI Foods Pty Ltd[4] (hereafter “SDA v ALDI”) in support of the additional ground of appeal.
The Appellant contended that leave to amend the grounds of appeal should be granted because:
(a)The additional ground of appeal concerns the legal capacity and jurisdiction of the Commission to approve the Agreement.
(b)In the event that the Respondent's appeal to the High Court from the judgment of the Full Court in SDA v ALDI is dismissed, the additional ground of appeal will be dispositive of the appeal in the present matter in the Appellant's favour.
(c)The additional ground is confined to questions of law to be determined by reference to facts as found by the Commission at first instance. It will not require the Commission to make any findings of fact beyond those made at first instance.
(d)The delay in the raising of the additional ground is explicable by reason of the decision of the Full Court in SDA v ALDI delivered on 29 November 2016. In light of this decision, the Appellant promptly gave notice on 9 December 2016 of its intention to seek leave to amend its grounds of appeal. The Respondent has not suffered any prejudice by reason of this delay.
Respondent’s Submissions
The Respondent submitted that it did not oppose the Appellant’s application to join an additional ground to the notice of appeal in this matter on the basis that:
(a)There is no separate hearing of the matters in this appeal; and
(b)The appeal is adjourned pending the outcome of the Respondent’s appeal in the High Court (M33 of 2017) following the decision of the Full Court of the Federal Court in SDA v ALDI.
Consideration
In SDA v ALDI, White J noted the SDA’s submission that the change in tense in the Act (as between sections 172 to 181 and 186 to 188) meant that, at the time of the approval, there must be some employees actually covered by the agreement. His Honour noted various factors in support of this construction.
Firstly, the natural language in section 186(2), which states:
“(2) The FWC must be satisfied that:
(a) if the agreement is not a Greenfields agreement--the agreement has been genuinely agreed by the employees covered by the agreement …”
Secondly, section 188 of the Act requires that an enterprise agreement be genuinely agreed by the employees covered by the agreement.
Thirdly, His Honour found that Deputy President Bull had not undertaken the task required by section 186(2)(a) of the Act:
“The further consequence [of the finding that no one was covered by the Agreement] is that neither Bull DP nor the Full Bench undertook the task required by s 186(2)(a) in the way it required. They could have discharged that task only by first satisfying themselves that there were employees ‘covered by’ the Regency Park Agreement in the sense required by Pt 2-4. Instead, the Full Bench considered whether the enterprise agreement had been genuinely agreed to by employees who ‘will be’ covered by the agreement at some time in the future upon the happening of a contingency because it elided the concepts of ‘will be covered by’ and ‘covered by’. The Full Bench overlooked that the work of the expression ‘who will be covered by the agreement’ had been completed upon the making of the agreement in accordance with s 182.”
Considering the above and noting the Respondent did not oppose the Appellant’s application to join an additional ground to the notice of appeal in this matter on abovementioned bases, we are satisfied that leave should be granted to the Appellant to amend its grounds of appeal.
Conclusion
The Appellant is granted leave to amend its grounds of appeal.
VICE PRESIDENT
Hearing details:
Determined on the papers.
Final written submissions:
Submissions received by the Appellant on 5 April 2017.
Submissions received by the Respondent on 19 April 2017.
[1] [2016] FWCA 2028.
[2] [2016] FCAFC 161.
[3] [2016] FWCFB 91.
[4] [2016] FCAFC 161.
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