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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.
[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] and 21 June 2019 [[2019]
FWCFB 4241] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb4241.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb4241.htm
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB91.htm
[2015] FWCA 6373
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[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.
[2015] FWCA 6373
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DEPUTY PRESIDENT
OF THE FAIR WORK OMMISSION Oil THE
[2015] FWCA 6373
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Annexure A
Printed by authority of the Commonwealth Government Printer
Price code A, AE415743 PR571924
In the Fair Work Commission Matter Number: AG2015/3510 ALDI FOODS PTY LIMITED (ABN 086 210 139) AS GENERAL PARTNER OF ALDI STORES (A LIMITED PARTNERSHIP) Applicant ENTERPRISE AGREEMENT ALDI REGENCY PARK 2015
ALDI undertakes: 1. That the hourly rate of pay for Stock Replenishers for work performed from 7am-6pm Monday to Friday (referred to as the Bankable Hourly Rate for this classification in Schedule 2 of the Enterprise Agreement ALDI Regency Park 2015) will be $19.55 per hour. Signed by VAdopc Viktor Jakupec Managing Director, ALDI Stores, Regency Park Region For and on behalf of ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) 7 September 2015
