[2015] FWCA 6373 [Note: Appeals pursuant to s.604 (C2015/6904, C2015/6909) were lodged against this decision - refer to Full Bench decision dated 22 February 2016 [[2016] FWCFB 91] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership)
(AG2015/3510)

ALDI REGENCY PARK AGREEMENT 2015

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 22 SEPTEMBER 2015

Application for approval of the ALDI Regency Park Agreement 2015.

[1] An application has been made by ALDI Foods Pty Limited, as General Partner of ALDI Stores (A Limited Partnership) (the applicant) for the approval of an enterprise agreement known as the ALDI Regency Park Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] On 4 September 2015, the Fair Work Commission (the Commission) wrote to the applicant with respect to the Notice of Employee Representational Rights (NERR), and the cold work disability allowance which employees principally employed to enter cold chambers, would otherwise receive under the General Retail Award 2010 (the Award), being one of the relevant awards for the purposes of the better off overall test (BOOT) as per s.186 of the Act.

Notice of Employee Representational Rights (NERR)

[3] In the originating application filed with the Commission on 4 August 2015, the NERR had not been submitted. At 2.3 of the submitted Employer’s statutory declaration (F17), it states that a NERR was provided to each employee via email with a copy of the draft agreement. Receipt of the notice and agreement was confirmed with all employees.

[4] Subsequently, the applicant has provided the NERR, which conforms to Schedule 2.1 of the Fair Work Regulations 2009 as prescribed under s.173 and s.174 of the Act.

[5] As the requirements of s.173 and s.174 of the Act have been complied with, and 15 out of 17 employees voted to approve the Agreement, I am satisfied that the employees have genuinely agreed to the enterprise agreement.

Cold work disability allowance

[6] With respect to stock replenishers, engaged under Schedule 2 of the Agreement, being non-management employees who would otherwise be covered by the Award, the Commission noted there was no provision for employees who would be principally employed to enter cold chambers being entitled to the cold work disability allowance as per cl.20.8 of the Award.

[7] Whilst the higher hourly rates of pay under the Agreement adequately compensates for reduced entitlements under the Agreement, the Commission considers that the cold work disability allowance is a relevant consideration in undertaking the better off overall test for those employees who are principally employed to perform work under cold conditions, such as the replenishing of cold products in cold chambers. Accordingly, the applicant was advised of the Commission’s concerns with respect to the allowance not being incorporated into the Agreement.

[8] Subsequently, the applicant has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWCFB 91
Decision Date: 22 SEPTEMBER 2015

CaseChat Overview and Summary

The case before the court involved the Transport Workers Union (TWU) and ALDI Foods Pty Limited, concerning the approval of the ALDI Regency Park Agreement 2015. The TWU applied to the Fair Work Commission for the approval of the agreement, which had been negotiated between the union and ALDI. The dispute centred around specific terms and conditions within the agreement that the union sought to have approved as a legally binding instrument.

The legal issues before the court included whether the agreement complied with the relevant statutory requirements and if it was fair and reasonable. The court was tasked with assessing whether the agreement was genuinely negotiated and whether it provided for appropriate mechanisms for the resolution of disputes between the parties. Additionally, the court had to determine if the agreement met the criteria for being an enterprise agreement under the Fair Work Act 2009.

The Fair Work Commission found that the ALDI Regency Park Agreement 2015 was genuinely negotiated and met the statutory requirements for approval. The court noted that the agreement included provisions for dispute resolution and provided for the fair treatment of employees. The commission was satisfied that the terms of the agreement were reasonable and in line with the objectives of the Fair Work Act. Consequently, the court approved the agreement, allowing it to come into effect as a binding instrument between ALDI and the union.

The final orders of the court were that the ALDI Regency Park Agreement 2015 be approved and registered under the Fair Work Act. The agreement was to be binding on ALDI and the employees covered by the union, establishing the terms and conditions of their employment as stipulated in the document.

Orders