TWU v ALDI Foods Pty Limited

[2016] FWCFB 91

[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 provided an undertaking which increases the hourly rate for stock replenishers. The increased hourly rate adequately compensates for the cold work disability allowance not being afforded under the Agreement, and ensures that such employees would be better off under the Agreement.

[9] The undertaking provided by the applicant is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[10] The undertaking is not so substantial that if asked to vote again, the employees who voted would not approve the Agreement. I am therefore satisfied that the undertaking does not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act.

[11] Taking into account the substantially higher rates of pay under the Agreement in comparison to the Award, management employees and employees who would otherwise be covered by the Road Transport Award and Storage Award 2010 receive 5 weeks annual leave as opposed to 4 weeks under the Awards, and the undertaking provided by the applicant, I am satisfied that the Agreement results in employees being better off overall.

[12] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[13] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 29 September 2015. The nominal expiry date of the Agreement is 4 years from the date of approval of this Agreement.

[14] This decision and undertaking should be brought to the attention of employees covered by the Agreement by the applicant.

DEPUTY PRESIDENT

Annexure A

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