Shop Distributive and Allied Employees' Association v ALDI Foods Pty Limited, as general partner of ALDI stores (a Limited Partnership)

[2016] FWC 2299

[2016] FWC 2299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.592 - Application for production of documents

Shop Distributive and Allied Employees’ Association
v
ALDI Foods Pty Limited, as general partner of ALDI stores (a Limited Partnership)
(AG2015/6335 and AG205/7237)

DEPUTY PRESIDENT BULL SYDNEY, 11 APRIL 2016

Request for production of documents, s.590(2)(c) of the Fair Work Act 2009 re: approval of new agreement and variation of existing agreement. Application granted in part.

[1] In this matter, the Shop Distributive and Allied Employees’ Association (SDA) have applied for production of documents relating to two applications filed by ALDI Foods Pty Limited, as general partner of ALDI stores (a Limited Partnership) (ALDI). Leave was granted to both parties to be represented by counsel pursuant to s.596(2)(a) of the Fair Work Act 2009 (the Act). The applications are listed below:

● Application AG2015/6335 - Approval of the proposed ALDI Minchinbury Agreement 2016 (Minchinbury Agreement)

● Application AG2015/7237 - Variation of the ALDI Prestons Agreement 2013 1

[2] The SDA filed objections to both applications via a Form F18 and a Form F23B dated 1 and 22 December 2015, respectively. The objections to the new or varied agreements are in essence that they do not pass the better off overall test. The objections raised by the SDA are listed for hearing and determination on 22 April 2016. 2

[3] In response to the SDA’s objection, an affidavit was filed by Ms McNaughton; a solicitor from Enterprise Law dated 20 January 2016 in relation to the approval of the Minchinbury Agreement. Ms McNaughton was the applicant’s bargaining representative.

[4] In Ms McNaughton’s affidavit at paragraph (37) she states:

“I am aware of only two employees nationally who have requested a comparison of benefits under the Agreement with those payable under the relevant Award. One Store Manager employed under the Dandenong Agreement (which has the same pay structures as the Prestons and Minchinbury Agreements) requested a review of remuneration over a 7 month period. There was an approximately $20,000 excess in the remuneration paid under the Agreement compared to that payable under the Award for this period.”

[5] The SDA seek to test the validity of this statement by requesting numerous documents relating to the employee concerned.

[6] ALDI submits that the documents have no relevance to the objections raised by the SDA, whereas the SDA maintain that the assumptions and calculations relating to how ALDI have determined that an employee was better off under the ALDI Dandenong 2013 – ALDI Foods Pty Limited Agreement 3 than the relevant award is relevant to their objection to the approval of the Minchinbury Agreement.

[7] A hearing in relation the production of documents sought by the SDA was held before me on 11 April 2016.

[8] The jurisdiction of the Commission to make an order for the production of documents arises from s.590 of the Act, and in particular 590(2)(c) which states:

“590 Powers of the FWC to Inform Itself


....

590(2)...

(c) by requiring a person to provide copies of documents or records, or to provide any other information to FWC;…”

[9] In exercising its discretion to issue an order to produce documents, the Commission will generally be guided by what applies in courts of law 4.

[10] Pursuant to the powers of the Act, documents must have, prima facie, an apparent relevance to the issues raised in the application and thus a legitimate forensic purpose not to be an abuse of process (See Trade Practices Commission v Arnotts Limited 5).

[11] In this matter ALDI rely on a statement of Ms McNaughton in opposing the SDA objection to the Minchinbury Agreement approval. Prima facie, the extracted paragraph has an apparent relevance to the application simply on the basis that ALDI rely upon it.

[12] However I am not persuaded that the order in the entire detail as sought by the SDA is necessary to produce the result it seeks. A narrower and less onerous order to produce documents in the following terms will issue:

i. The calculations and assumptions made by ALDI in undertaking this review (including the analysis of entitlements under the agreement and under the Award 6)

ii. The conclusions reached in this review (including the reasoning as to how they were derived at)

[13] The above is a subset of what is contained in the SDA’s draft order.

[14] The SDA have advised that they do not require the name of the individual referred to in Ms McNaughton’s affidavit to be identified.

[15] On this basis and by consent of parties, the Order will require that the name of the individual employee not be revealed and that any material irrelevant to the question asked by the SDA need not be produced.

[16] The SDA may at any time apply to extend the Order in terms of documents sought should the resultant production of documents not provide sufficient guidance in ascertaining the relevant information.

[17] The Order issued in conjunction with this decision will require compliance by 4:00pm 13 April 2016.

DEPUTY PRESIDENT

Appearances:

A Duffy of Counsel for the SDA

A Perigo of Counsel for ALDI

Hearing details:

2016

Sydney

11 April

 1   [2013] FWCA 4028

 2   The Transport Workers’ Union of Australia, NSW Branch and the National Union of Workers’ New South Wales Branch filed form F18’s is in support of the approval of the Minchinbury Agreement 2016

 3   AE405142

 4   Munro J in Clerks’ (Alcoa of Australia – Mining and Refining) Consolidated Award (Alcoa) Case [1988] AIRC 391 Print F9441

 5 (1989) 88 ALR 90 at 103

 6   Being the General Retail Industry Award 2010 (being the relevant award for the purposes of the better off overall test)

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