ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) [2013] FWCA 8632 (1 November 2013)

[2013] FWCA 8632

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)
(AG2013/2766)

ALDI DANDENONG AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 1 NOVEMBER 2013

Application for approval of the ALDI Dandenong Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the ALDI Dandenong Agreement 2013 (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 24 October 2013, the Commission alerted the Applicant via its representative, and the Shop, Distributive and Allied Employees Association (SDAEA) and the Transport Workers' Union of Australia (TWU) as bargaining representatives for the Agreement to a number of concerns it had with aspects of the Agreement. These issues concerned the ordinary span of hours with respect to salaried employees and hourly rate store employees and shift loadings in relation to transport and distribution employees under the Agreement.

[3] Correspondence was received from the Applicant on 31 October 2013. The Applicant advised that it had addressed all previous concerns of the Commission, raised in previous applications.

[4] The Applicant submits that the Commission’s concerns with respect to the ordinary hours of work and shift loadings is resolved by the wording of clause 13 - Remuneration and Salary Sacrifice Arrangements, of the Agreement and in particular where the clause states:

“The remuneration paid for each classification has been set to ensure employees are better off overall under this Agreement than under the Modern Award which would otherwise apply. Where an Employee considers that they are not better off overall under this Agreement than the relevant Modern Award, they may request a comparison of the benefits received for a nominated period of time under the relevant Modern Award. Any shortfall in total remuneration which would otherwise be payable under the Modern Award will be paid to the Employee in the next pay period after the review is completed. If the Employee and ALDI cannot reach agreement on the remuneration which should be paid, the Resolution of Disputes provision of this Agreement will be followed and the parties will agree to the Fair Work Commission arbitrating and making a binding determination to resolve the matter.”

(my emphasis)

Salaried store employees

[5] With respect to Schedule 1 - Salaried Store Employees, and in particular, Part A - Hours of work and overtime, the Applicant submits that although a span of ordinary hours is not provided, when an employees is engaged under this Schedule, the hours of work are agreed between the Applicant and the employee. Further, the Applicant states that the employee works their contract hours and is remunerated accordingly, which includes payments that would exceed what the employee would have received had they been engaged under the terms of the relevant modern award.

[6] The Applicant submits that although it is difficult to envisage a situation where an employee could earn more under the relevant modern award, where such a situation arose, the employee has the benefit of clause 13 of the Agreement, which I have referred to previously.

Hourly rate store employees

[7] In its correspondence to the Applicant, the Commission noted that with respect to Schedule 2 - Hourly Rate Store Employees, and in particular, Part A - Hours of work and overtime, the ordinary span of hours were greater than the ordinary span of hours provided for under the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purposes of the better off overall test where employees are engaged as hourly rate store employees under the Agreement.

[8] Where the ordinary span of hours are greater than those in the Award, the Applicant in its correspondence states that it relies upon the provision under the Award at sub clause 27.2(b)(iii), that provides in the case of retailers whose trading hours extend beyond 9.00pm Monday to Friday or 6.00pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week will be 11.00pm.

[9] In circumstances where the ordinary span of hours extends beyond those hours, as provided under the Award, the Applicant has provided a number of indicative rosters and calculations to demonstrate that hourly rate store employees would be better off overall under the Agreement.

Transport and distribution employees

[10] In its correspondence to the Applicant, the Commission requested correspondence with respect to Schedule 4 - Transport and Distribution Employees, and in particular, Part A - Hours of work and overtime, and the ordinary span of hours and shift loadings. Specifically the Applicant was asked to provide correspondence outlining, that where an employee is not a shift worker engaged under this Schedule what penalties would apply if they were to work outside the ordinary span of hours.

[11] The Applicant has provided correspondence that states all employees covered by Schedule 4 of the Agreement are Transport Operators and are all treated as shift workers under the Agreement, and as such, receive 5 weeks annual leave each year.

[12] The SDAEA and the TWU did not provide any correspondence in relation to the concerns raised by the Commission.

[13] Upon review of the Applicant’s correspondence, I am satisfied the Agreement meets the better off overall test.

[14] The Agreement covers all operational employees who would otherwise be covered by a modern award and who are employed in ALDI’s Dandenong region. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[16] The SDAEA and the TWU being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[17] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 8 November 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

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