[2013] FWC 3495

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FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ALDI Foods Pty Ltd
(AG2013/307, AG2013/319, AG2013/400)

ALDI MINCHINBURY AGREEMENT 2012, ALDI STAPYLTON AGREEMENT 2012, ALDI DERRIMUT AGREEMENT 2012

Retail industry

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT

SYDNEY, 3 JUNE 2013

Applications for approval of the ALDI Minchinbury Agreement 2012, ALDI Stapylton Agreement 2012 and ALDI Derrimut Agreement 2012 - fairly chosen - geographically, operationally or organisationally distinct - genuinely agreed - consistency with National Employment Standards - better off overall test.

[1] These are applications by ALDI Foods Pty Ltd (ALDI) for the approval of three enterprise agreements known as the ALDI Minchinbury Agreement 2012 (the Minchinbury Agreement), the ALDI Stapylton Agreement 2012 (the Stapylton Agreement) and the ALDI Derrimut Agreement 2012 (the Derrimut Agreement) (collectively, the Agreements). The applications were made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreements are single-enterprise agreements.

[2] In 2011, ALDI applied to Fair Work Australia (FWA) for the approval of three enterprise agreements covering substantially the same subject matter and employees as the Agreements. These applications were dismissed by Commissioner McKenna in March 2012, 1 and the Commissioner’s decision was upheld by a Full Bench.2 The Agreements were negotiated to replace the enterprise agreements that were not approved. In the Declarations in support of the applications for approval, ALDI indicates that the Agreements were negotiated between the parties with the benefit of these decisions and with a view to ensuring compliance with the legislation.

[3] Declarations in respect of the applications were received from the Shop, Distributive and Allied Employees Association (SDA) and various branches of the National Union of Workers (NUW) and the Transport Workers’ Union of Australia (TWU). The SDA supports the approval of each agreement. The NSW branches of the NUW (NUW-NSW) and the TWU (TWU-NSW) oppose the approval of the Minchinbury Agreement. The Victorian branch of the TWU (TWU-Vic) opposes the approval of the Derrimut Agreement, while the Victorian branch of the NUW seeks to be covered by the Derrimut Agreement but has not indicated whether or not it supports approval. The Queensland Branch of the TWU (TWU-Qld) opposes the approval of the Stapylton Agreement. Ms Lynette Pearson, an employee bargaining representative in respect of that agreement, has written to the Fair Work Commission (the Commission) expressing concerns about it.

[4] The requirements that must be met before the Commission can approve an enterprise agreement are set out in ss.186 and 187 of the Act:

[5] The NUW-NSW and TWU-NSW each submitted that aspects of ss.186 and 187 were not met in relation to the application for the approval of the Minchinbury Agreement. The NUW-NSW submitted that the part-time provisions of the Minchinbury Agreement do not satisfy the better off overall test (see ss.186(2)(d), 193); that the public holiday provisions are inconsistent with the National Employment Standards (NES) (see ss.186(2)(c), 114-116); that the hours of work provision is inconsistent with the maximum number of hours set out in the NES (see ss.186(2)(c), 62); and that a clause allowing ALDI to require that employees submit to a medical examination is a discriminatory and objectionable term and therefore unlawful (see ss.186(4), 194(a), 195).

[6] The TWU-NSW submitted that the group of employees covered by the Minchinbury Agreement was not fairly chosen (see s.186(3), (3A)). The submission centred around the inclusion of warehouse employees and transport operators within the group when roughly 85% of the employees covered by the agreement are retail employees working in ALDI stores. This was said to disenfranchise transport operators, undermining collective bargaining. For similar reasons it was said that the agreement was not genuinely agreed to (see s.186(2)(a)). It was also submitted that the hours of work, annual leave and other leave provisions are inconsistent with the NES.

[7] In a letter to the Commission, Ms Lynette Pearson, an employee bargaining representative representing herself in relation to the Stapylton Agreement, contended that the vote counting process that she witnessed was not what was described prior to the vote, and was in breach of the Act. Ms Pearson also raised concerns regarding the makeup of the workforce similar to those of the TWU-NSW in relation to the Minchinbury Agreement, and raised various concerns relating to the better off overall test, the NES, and discrepancies between rates of pay in different States.

[8] ALDI submitted that the Agreements meet the relevant legislative requirements and should be approved. It was said that each of the Agreements has been approved in a vote by an overwhelming majority of the employees covered and that the approval of the Agreements is supported by the union covering most of its employees. In particular, it was submitted that the group of employees covered by each agreement was fairly chosen, that the Agreements pass the better off overall test and that the terms of the Agreements do not contravene s.55 of the Act.

Evidence

[9] Witness evidence was presented in the proceedings by ALDI, the TWU-NSW and the NUW-NSW.

[10] ALDI relied upon the evidence of Mr David Zalunardo, the Managing Director of ALDI’s Preston Region, who was responsible for the enterprise bargaining process nationally. Mr Zalunardo gave evidence regarding the organisation of the ALDI business. The business is divided into regions which consist of a distribution centre which services between 50-100 stores within a four to five hour travelling distance. He gave a detailed explanation of the Minchinbury Region, which consists of a distribution centre and 65 retail stores. He said that at the time of the ballot for the new agreement, there were 1149 employees with 913 employees in the stores, 166 employees in the warehouse and 70 employees in transport. 3 He also explained the negotiation and bargaining process leading to the making of the Minchinbury Agreement.

[11] The TWU-NSW presented evidence from two of its officials. Mr Robert Rasmussen, a TWU organiser, is the official in charge of the yard which ALDI operates out of in Minchinbury. He gave evidence about the voting of transport operators in the ballot for the Minchinbury Agreement, based on a survey conducted by the TWU. On the basis of the survey results, he listed the entitlements which transport operators considered as priorities in the agreement. Mr Rasmussen referred to various significant differences in occupational and demographic terms between transport operators and retail workers, including differences relating to risk of injury at work, age, nature of employment (full-time, part-time or casual), and earnings. He also explained the history of negotiations for the Minchinbury Agreement and the involvement of the TWU in the negotiations on behalf of its 21 members at Minchinbury. Mr Glenn Nightingale was also called by the TWU-NSW to give evidence. Mr Nightingale is a Senior Negotiator employed by the TWU and was in charge of negotiations with ALDI for the agreement to cover employees operating from the distribution centre in Minchinbury. He referred to the course of negotiations for the Minchinbury Agreement and the attempts by the TWU to get the ALDI representatives to deal with it in a meaningful way.

[12] The NUW-NSW presented evidence from an organiser, Mr James Nero, who is responsible for the representation of NUW members employed by ALDI at the Minchinbury Distribution Centre. Mr Nero gave evidence about the rosters and bankable hours arrangements for part-time employees and discussions about these matters in the negotiations for the Minchinbury Agreement.

Consideration

[13] I have referred above to the relevant legislative requirements for the approval of enterprise agreements. In general, I am satisfied that the relevant requirements of ss.186, 187 and 188 of the Act have been met in relation to the three agreements, subject to the matters and objections considered below. When the applications for approval of the Agreements were listed for hearing, the Notice of Listing indicated that on a preliminary basis the Agreements appeared to satisfy the relevant legislative requirements for approval. Apart from the specific objections raised by the unions and Ms Pearson, this position was not contradicted by any of the parties.

[14] I am satisfied on the basis of the Employer Declarations (Forms F17) provided by ALDI and the other material before me that all pre-approval steps required by the Act were taken (see ss.180 and 181) and that notices of employee representational rights were given as required (see ss.173 and 174). On this basis, subject to the consideration of the objections raised by the TWU-NSW and Ms Pearson, I am satisfied that the Agreements were genuinely agreed to by the employees that they cover (see ss.186(2)(a) and 188).

[15] Although the objections of the TWU-NSW and NUW-NSW were mainly raised in relation to the Minchinbury Agreement, they are also relevant to the consideration of the Stapylton Agreement and the Derrimut Agreement as all the Agreements have similar terms and conditions. It was recognised in the proceedings that there is sufficient commonality between the provisions of the Agreements such that if any of the objections and concerns raised are such as to prevent approval of the Minchinbury Agreement, the Commission would be bound to consider them in relation to the other agreements. It is noted however that the TWU-Vic, which opposed the approval of the Derrimut Agreement, and the TWU-Qld, which opposed the approval of the Stapylton Agreement, did not appear in the proceedings or present any submissions to the Commission in support of their objections to the approval of those agreements.

[16] I now turn to consider the specific objections and concerns raised in relation to the approval of the Minchinbury Agreement.

Fairly chosen coverage

[17] A single-enterprise agreement that is not a greenfields agreement is made when a majority of the employees of the employer who will be covered by the agreement and who cast a valid vote approve the agreement (see s.182(1) of the Act). Subsection 186(3) requires the Commission to be satisfied that the group of employees covered by the agreement was fairly chosen. If the agreement does not cover all employees of the relevant employer or employers, then subsection 186(3A) requires the Commission, in deciding whether the group was fairly chosen, to take into account whether the group is “geographically, operationally or organisationally distinct”.

[18] In Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union, 4 a Full Bench of FWA considered these provisions and stated:

[19] The TWU-NSW submitted that the group of employees covered by the Minchinbury Agreement was not fairly chosen for the purposes of s.186(3) and (3A) of the Act. First it was said that the agreement applies to three distinct occupational groups of employees, namely store employees, warehouse employees and transport operators. The agreement provides for some common provisions applicable to all employees (clauses 1-32) and then provides specific sets of conditions for store employees, warehouse employees and transport operators (Schedules 1-8). It was said that the consequence of incorporating the three occupational groups under one agreement containing separate sets of conditions is that warehouse employees and transport operators are denied the capacity to participate in bargaining and have an effective vote. Secondly it was submitted that the group of employees to be covered by the Minchinbury Agreement is not geographically, operationally or organisationally distinct. This is because the group of employees includes at least two groups of employees that are themselves distinct, namely employees employed at the distribution centre and employees employed in ALDI stores. Thirdly it was submitted that, because the agreement allows ALDI to transfer employees to other locations or regions to meet the needs of the business, the group of employees covered is not geographically or operationally distinct.

[20] It is clear from the objects of the Act that there is an emphasis on enterprise-level collective bargaining, underpinned by good faith bargaining obligations and directed towards the making of enterprise agreements (see ss.3(f) and 171). Subsection 186(3) provides that the Commission must, before approving an enterprise agreement, be satisfied that the group of employees covered by the agreement was fairly chosen. Subsection 186(3A) provides that if the agreement does not cover all employees of the employer, the Commission must in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct. Whilst in each case a decision must be made as to whether the group of employees covered by an agreement was fairly chosen, it is implicit in the promotion of enterprise-level collective bargaining that the outcome will usually be the making of enterprise agreements covering most, if not all, of the employees within an enterprise, even though they might be performing different functions and in different occupational groups.

[21] The Minchinbury Agreement covers all operational employees who are employed in ALDI’s Minchinbury Region and who would otherwise be covered by modern awards. The only employees who are excluded are administrative employees and senior managers with disciplinary responsibilities. In particular, the agreement covers employees in retail stores served by ALDI’s Minchinbury Distribution Centre, employees in the Distribution Centre, and employees engaged in transport and distribution operations from the Distribution Centre.

[22] On the evidence in the proceedings, ALDI has traditionally operated each of its regions as distinct undertakings. Each region has its own Managing Director and group of operational directors, and operates and reports as an independent profit centre. The only national function is the buying function, except in relation to fresh produce which is sourced locally by each region. ALDI’s business development plan, applied internationally as well as in Australia, is to start with a distribution centre in an area and then to grow the number of stores serviced by that distribution centre.

[23] The Minchinbury Agreement applies to the various classifications of ALDI’s employees in the Minchinbury Region. The region is defined in the agreement as the Minchinbury Distribution Centre and all ALDI stores operating in specified local government areas. There was some criticism by the TWU-NSW in the proceedings relating to the exclusion of some local government areas within the general geographical area covered by the region. However, as explained by Senior Counsel for ALDI, the identification of the geographical area of coverage for the Agreements by reference to local government areas was an attempt to provide certainty as to which future stores may be covered having regard to the complaint by the TWU in the previous proceedings that ALDI ought not have the capacity to alter the coverage of the agreements as new stores opened. The specification in the Agreements of the local government areas seeks to identify the areas in which ALDI has any interest in opening stores during the life of the Agreements.

[24] Having regard to the evidence and submissions in the proceedings, I have come to the conclusion that the group of employees covered by the Minchinbury Agreement is operationally and organisationally distinct. ALDI organises its business so as to operate on regional lines and has sought to have its industrial relationships organised on those same lines. In relation to the Minchinbury Agreement, the group of employees is operationally distinct in that they work in the Minchinbury Region, which comprises the Distribution Centre and stores serviced by that centre. The Region has its own management structure and functions as a separate profit centre within the ALDI national business.

[25] I have also come to the conclusion that the group of employees covered by the agreement may be considered to be geographically distinct for the purposes of s.186(3A). The employees work in the Minchinbury Region, which is in part of New South Wales and has been identified as generally being north of the M4 motorway and as comprising specified local government areas. In this way, the group of employees may be described as being geographically distinct from ALDI’s employees in other regions or parts of the business.

[26] It is recognised however that, as contended by the TWU-NSW, in some respects the group of employees might not be considered to be geographically and perhaps operationally or organisationally distinct from other ALDI employees within the region in that some of the employees are engaged in the Distribution Centre located at Minchinbury and other employees are engaged in retail stores which may be located some considerable distance away from Minchinbury. Whether such groups of employees will be considered to be “geographically distinct” for the purposes of s.186(3A) will depend upon the nature, scope and width of the necessary inquiry. For example, it is clear that workers in a distribution centre in Minchinbury are geographically separated from workers in a retail store that is 100 kilometres away, and that workers in the distribution centre may be organised along different lines than workers in stores. Indeed such distinctions are recognised in the Minchinbury Agreement in that there are separate schedules to the agreement setting out the specific conditions for store employees, warehouse employees and transport operators. However, in the circumstances of the present matter and for the purposes of the consideration of the relevant legislative requirements, it is appropriate to focus upon whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct from other ALDI employees who are not covered by the agreement. Such excluded employees would include ALDI employees in other regions throughout Australia as well as the excluded administrative and managerial employees in the Minchinbury Region. The inquiry is primarily directed at whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct from the ALDI employees not covered. On this basis, it is clear that the group of employees covered by the Minchinbury Agreement is geographically, operationally or organisationally distinct.

[27] The TWU-NSW also contended that the provisions of the Minchinbury Agreement relating to the transfer of employees meant that the group of employees covered by the agreement was not geographically, operationally or organisationally distinct. The agreement makes provision for the conditions and entitlements of employees who may be required to work at other locations or within other regions to meet the needs of ALDI’s business (see clause 10). The new or temporary location must be within a reasonable travelling time from the employee’s residence. Where an employee transfers on a temporary basis to another region, the terms and conditions of their employment will continue to be governed by the Minchinbury Agreement. Where an employee agrees to a permanent transfer, the terms and conditions of the relevant agreement applicable to the other region will apply.

[28] It is not unusual for provision to be made in agreements to cover the transfer of employees from one part of a business to another. In this respect the provisions in the Minchinbury Agreement are not exceptional. Further, it might be expected that such transfers are not a common occurrence or widespread practice within ALDI’s operations. No evidence was presented as to suggest otherwise. In my view, the inclusion in the agreement of provisions relating to the transfer of employees does not change the general characterisation of the group of employees covered by the agreement or warrant a different finding to that reached above, namely that the group of employees covered is geographically, operationally and organisationally distinct.

[29] In deciding whether the group of employees covered by the Minchinbury Agreement was “fairly chosen”, the Commission must take into account any other relevant considerations as well as whether the group is geographically, operationally or organisationally distinct. As the Full Bench in Cimeco 7 said:

[30] It was argued by the TWU-NSW that the inclusion of the different occupational groupings of employees in the same enterprise agreement provided a basis for finding that the group of employees covered by the Minchinbury Agreement was not “fairly chosen”. This was because of the different interests, employment types, demographics, and safety and other concerns of the stores employees as distinct from the warehouse employees and the transport operators. However it was not demonstrated on the evidence that there was any significant prejudice to the transport employees concerned in the negotiations, or that the different groups of ALDI employees have vastly different interests or concerns and objectives in the bargaining process, or that the different interests of the various groups of employees were not able to be taken into account in the bargaining process. Further, it would seem to be contrary to the general objective of promoting enterprise-level bargaining and the making of enterprise agreements if such agreements could only be negotiated upon occupational lines.

[31] In general, the interests of different occupational groups of employees may be accommodated in enterprise-level bargaining, although not all demands of each group might be able to be achieved in the negotiated outcome. The ability of different groups of workers to win concessions in negotiations is not necessarily dependent upon whether they bargain together with other employees in an enterprise for a single agreement or whether they bargain for a separate agreement. In the present case, and at an early stage in the negotiations for the new agreements, ALDI indicated that it would not be party to separate agreements for different parts of its workforce in the Minchinbury Region and that it sought to negotiate one agreement for the region. ALDI has sought throughout the negotiations to make agreements on a regional basis similar to the way in which its business is organised and operated.

[32] Having regard to all the submissions and material before me, I have come to the conclusion that the group of employees covered by the Minchinbury Agreement was fairly chosen. For the reasons given above, the group of employees covered by the agreement is operationally and organisationally distinct. I am also inclined to the view that the group is geographically distinct from other ALDI employees in similar classifications in that they work in ALDI’s Minchinbury Region, which generally covers that part of New South Wales north of the M4 motorway. These are factors in favour of finding that the group was fairly chosen. 8 The selection of the group was not based on employee characteristics such as date of employment, age or gender, and was not arbitrary or discriminatory. The selection was based on the business model which ALDI has adopted whereby its business is organised and conducted on a regional basis with stores in a specified area being serviced out of a regional distribution centre. In the interests of its business, ALDI has sought to have its industrial and employment relationships conducted and regulated on a similar regional basis and has negotiated a single agreement for all of its operational staff in the Minchinbury Region.

[33] The inclusion of different occupational groupings of employees in the negotiations and the coverage of an enterprise agreement is not exceptional and does not per se have the effect of undermining collective bargaining or other legislative objectives. Indeed, as referred to earlier, both the legislation and current practice tend to favour the making of enterprise agreements which cover most, if not all, of the employees within enterprises rather than the making of separate agreements for different occupational groups. Merely because it is asserted that some of the transport employees or their union might have priorities which differ from other ALDI employees or other unions involved in the bargaining process, or that those employees might have done better in negotiations for a separate agreement, does not of itself warrant a conclusion that the group of employees was not fairly chosen or that the selection of the group had the effect of undermining collective bargaining. Although it is fundamental that employees and their bargaining representatives be able to pursue their respective claims in negotiations, the outcome of the bargaining will not necessarily be agreement on all claims made by different groups. This will be so whether the bargaining is conducted on an occupational or enterprise-level basis.

[34] In this regard, it may be added that there has been no persuasive evidence presented in the proceedings as to any significant disadvantage or injustice to the non-stores employees in the negotiation of the Minchinbury Agreement or having regard to the provisions of the agreement reached. On the evidence, it has not been shown that the transport workers were denied the opportunity to bargain to improve conditions in areas of concern to them as a result of the approach to the negotiations or the coverage of the agreement.

[35] Finally, I do not consider that the circumstances of the present matter are akin to those in which findings have been made that the selection of the group of employees who have bargained and agreed on an agreement was such as would undermine collective bargaining by other employees in a manner not compatible with the objects of Part 2-4 of the Act. 9

[36] For all the above reasons, I am satisfied that the group of employees covered by the Minchinbury Agreement was fairly chosen.

Genuinely agreed

[37] For an enterprise agreement to be approved, the Commission must be satisfied that the agreement has been “genuinely agreed to” by the employees covered by the agreement (see s.186(2)(a) of the Act).

[38] In the case of the Minchinbury Agreement, the agreement was approved in a vote of the employees covered by the agreement. The Employer’s Declaration (Form F17) indicates that, of the 1149 employees to be covered by the agreement, 990 employees cast a valid vote and 842 of those employees voted to approve the agreement.

[39] It was submitted by the TWU-NSW that, in circumstances where store employees voted to approve rates of pay and conditions of employment that have no application to them and apply only to warehouse employees or transport operators, the warehouse and transport employees were effectively disenfranchised and the agreement cannot be said to have been genuinely agreed to by the employees covered.

[40] For similar reasons as given above, I do not consider that the warehouse and transport employees were “effectively disenfranchised” as a result of the coverage of the agreement. Those employees were able to participate in the bargaining for the agreement and in the negotiations relating to the schedules to the agreement setting out particular conditions relating to warehouse employees (Schedules 3 and 7) and to transport operators (Schedules 4 and 8). Further, the warehouse and transport employees were able to participate in the vote on the agreement, which resulted in a significant majority of the employees covered voting in favour of the agreement. The logic of the TWU-NSW submission might suggest that workers in different classifications or occupations under an agreement, and where different rates of pay and/or conditions apply to those classifications, would need to be separately balloted in relation to such matters before the agreements could be taken to have been genuinely agreed to by the workers covered. The Act does not require such differentiation in relation to the voting by employees as to whether to approve an agreement.

[41] Having regard to all the evidence and material before the Commission, I am satisfied that the Minchinbury Agreement was genuinely agreed to by the employees covered by the agreement.

National Employment Standards

[42] To approve an enterprise agreement, the Commission must also be satisfied that the terms of an agreement do not contravene s.55 of the Act, which deals with the interaction between the NES and enterprise agreements (see s.186(2)(c)). In particular, an enterprise agreement must not exclude the NES or any provision of the NES or include provisions that purport to provide lesser entitlements than those provided by the NES (see s.55(1)). A term of an enterprise agreement has no effect to the extent that it contravenes s.55 (see s.56).

[43] The TWU-NSW and the NUW-NSW submitted that the Minchinbury Agreement should not be approved because the Commission cannot be satisfied that the agreement does not contravene s.55 of the Act by excluding certain parts of the NES. In this regard, reference was made to the provisions of the Minchinbury Agreement relating to hours of work, annual leave and public holidays.

[44] I now turn to consider those parts of the Minchinbury Agreement which it was contended contravene s.55 of the Act.

(a) Hours of work

[45] Section 62 of the Act provides that an employer must not require or request an employee to work more than a specified number of hours in a week, unless the additional hours are reasonable (s.62(1)). An employee may refuse to work additional hours if the additional hours are unreasonable. The factors which must be considered in determining whether additional hours are reasonable or unreasonable include: any risks to employee health and safety; the employee’s personal circumstances, including family responsibilities; the needs of the enterprise; and the usual patterns of work in the industry (see s.62(3)).

[46] Clause 12 of the Minchinbury Agreement deals with hours of work. The clause provides, in relation to full-time employees, that they will be required to work 38 hours per week plus reasonable additional hours. In relation to such additional hours the clause states:

[47] Part-time employees under the Minchinbury Agreement work fewer than 38 hours per week on average and are advised of their contract hours on commencement of work. The relevant parts of clause 12 provide that ALDI will only vary these hours by agreement with the employee. The clause further provides:

[48] The NUW-NSW and the TWU-NSW submitted that the abovementioned provisions of the Minchinbury Agreement, and similar provisions in Schedules 3 and 7 relating to salaried warehouse employees, are not consistent with the NES as expressed in s.62 of the Act. It was said that it cannot be consistent with the NES that additional hours will be agreed at the time of commencing employment. This is because the criteria to be taken into account in determining whether additional hours are reasonable or unreasonable include such matters as the risks to an employee’s health and safety from working the additional hours (s.62(3)(a)) and the employee’s personal circumstances including family responsibilities (s.62(3)(b)), and these matters might change from day to day or week to week. It was said that it cannot be reasonable to decide at one point in time how many additional hours it will be reasonable for an employee to work for an indefinite period into the future without ongoing consideration of the employee’s personal circumstances. It was submitted that s.62 proscribes an employer from even requesting that an employee work additional hours unless these hours are reasonable having regard to the factors in s.62(3). The agreement provides that the additional hours an employee is required to work are to be set at the commencement of the employment and subject only to ALDI giving consideration to a request to subsequently reduce those hours. It was said that it is self-evident that if a person reaches an agreement as part of obtaining employment with ALDI and that agreement requires a certain number of additional hours to be worked, the employee cannot refuse to work those additional hours. It was also said that it is impracticable to provide that an employee can go to the Commission with a dispute if ALDI is not reasonable and prepared to vary an individual agreement from time to time.

[49] The issue of hours of work in the prior agreement was considered in the proceedings before Commissioner McKenna and the Full Bench. 10 The main concern about the hours provision in that agreement related to the extent to which employees were deprived of the effective capacity to refuse to work hours in excess of 38 per week in contravention of the NES. In this regard, the Full Bench said:

[50] During the appeal proceedings, ALDI offered an undertaking with respect to the hours provision enabling any dispute to be dealt with by arbitration. The Full Bench considered that the concern about the hours provision might be addressed by way of an undertaking but noted that no such undertaking had been provided to the Commissioner. 11

[51] In the present proceedings, it was explained by Senior Counsel for ALDI that the undertaking has been incorporated into the new Minchinbury Agreement in accordance with the observation made by the Full Bench. 12 It was submitted that, in order to meet the needs of its business and for rostering purposes, ALDI has sought to provide some certainty as to the additional hours that employees will work. It was said that such arrangements may work to the benefit of both the employer and employees. The provisions which have been included in the Minchinbury Agreement provide certainty for ALDI and its employees about hours of work, and also provide safeguards for workers who wish to reduce the hours they are required to work on the basis that the additional hours are unreasonable. It was suggested that ALDI employees, and in particular transport workers, are satisfied with the arrangements in relation to hours of work whereby they can agree to ordinary hours of up to 50 per week, and would be concerned about an alteration in their hours of work.

[52] It may be possible to construe s.62 of the Act so that the question of reasonable hours worked would fall to be determined on, say, a weekly basis. This was in effect what was contended by the NUW-NSW and the TWU-NSW. However such a construction would not be permissive of the many regular shift systems whereby employers and employees have agreed to longer weekly hours of work in order to facilitate, for example, 44 hour weekly rosters and 12 hour shifts. 13 Such a construction would also not be consistent with other provisions in the NES relating to maximum weekly hours. One of the factors in s.62(3) to be taken into account in determining whether additional hours are reasonable or unreasonable is:

[53] The reference to a level of remuneration that reflects an expectation of working additional hours contemplates that the hours may be set some time in advance and not on a weekly basis. A similar comment may be made in relation to the reference in s.62(3)(g) to the usual patterns of work in an industry. Further s.63(2) provides that the terms of a modern award or enterprise agreement may provide for average weekly hours that are in excess of 38 hours if the excess hours are reasonable. These provisions do not sit well with the contention that s.62 requires a week-by-week determination of the additional hours that an employee may be required to work.

[54] For these reasons, I am not persuaded that the construction given to s.62 by the NUW-NSW and the TWU-NSW should be adopted. I have decided that the provisions of the Minchinbury Agreement relating to the working of additional hours are not inconsistent with s.62 and therefore do not contravene s.55 of the Act.

(b) Bankable hours

[55] It was also submitted by the NUW-NSW and the TWU-NSW that the bankable hours arrangements in clause 12 of the Minchinbury Agreement are inconsistent with s.62 of the Act. The bankable hours arrangements under the agreement are only available to non-casual hourly rate employees. The evidence is that similar arrangements have been in operation at ALDI since 2006. The arrangements allow employees to bank hours worked in excess of their contract hours in a pay period, rather than having the excess hours paid, and to use the banked hours to reduce the number of contract hours worked in subsequent pay periods. Where an employee does not work their full contract hours in a pay period and does not have sufficient “banked” hours, the employee will still be paid for the contract hours but his/her banked hours balance will go into negative figures and will need to be made up using the employee’s future excess hours. It was submitted by the TWU-NSW that, in such circumstances, the employee will be required to work excess hours in future periods without additional pay and irrespective of whether the additional hours are reasonable. This was said to be inconsistent with s.62 of the Act.

[56] The submissions of the TWU-NSW and the NUW-NSW in relation to the operation of the bankable hours provision in the Minchinbury Agreement were not supported by evidence and would seem to be based on a strained reading or misunderstanding of the provision in the agreement. The submissions were not well-developed and are difficult to comprehend. The provisions for bankable hours in the agreement are somewhat similar in nature to provisions for averaging of hours in various awards and agreements. The provisions make bankable hours arrangements available to some ALDI employees and provide flexibility for them in meeting commitments as to working hours whilst maintaining a certain level of income. No persuasive case has been made out that such arrangements are of their nature contrary to the NES as set out in s.62.

[57] The NUW-NSW submitted that the arrangements were, in particular, contrary to s.62(3)(d), which is one of the factors to be taken into account in determining whether additional hours are reasonable or unreasonable. However, the bankable hours arrangements in the agreement provide for the maintenance of the normal pay of an employee (payment for the “contract hours”) and either for the banking of additional hours or payment for the bankable hours in each pay period. The provision does not allow overtime hours to be banked from one pay period to the next and provides for such hours to be paid in full in the next pay period after such hours are worked. It also provides for the payment of shift loadings in the following pay period after the hours are worked.

[58] On my reading of the bankable hours arrangements in clause 12 of the agreement, the arrangements are supportive of a conclusion that additional hours worked under the arrangements would be reasonable having regard to s.62(3)(d), contrary to the contention of the NUW-NSW. However that might be, in any event, whether an employee is entitled to receive overtime payments etc for working additional hours is only one of the factors in s.62(3) to be taken into account in determining whether additional hours are reasonable or unreasonable.

[59] The provisions in the Minchinbury Agreement for bankable hours cannot be read as excluding any provision of the NES (see s.55(1)). Indeed in some respects the provisions might be considered to be ancillary or supplementary to the NES or as providing more beneficial entitlements for employees in the form of flexible working arrangements (see s.55(4) and (5) and s.63).

[60] On the basis of the submissions and material before me, it cannot be concluded that the bankable hours provisions in the agreement contravene s.55 of the Act.

(c) Annual leave

[61] Clause 19 of the Minchinbury Agreement makes provision for annual leave. The clause provides in part that annual leave may be taken only with the agreement of ALDI, “taking into account business requirements”. It goes on to provide:

[62] The TWU-NSW submitted that the clause excludes the NES, in particular s.88 of the Act, by prescribing that the only consideration to be taken into account in determining whether a period of leave is to be agreed is ALDI’s business requirements, and thereby prima facie precluding leave from being taken in the two weeks prior to Christmas and the week prior to Easter.

[63] Section 88 of the Act provides for the taking of paid annual leave as follows:

[64] Section 93 is also relevant to the consideration of the present matter. Subsections 93(3) and (4) provide:

[65] Clause 18 of the agreement is clearly intended to restrict the taking of annual leave during ALDI’s busiest periods. However the restriction is qualified and does not apply where there is agreement by ALDI. The clause recognises that ALDI will take into account its business requirements in deciding whether to agree to a request by an employee to take annual leave. On its face, the clause does not offend s.88(2) of the Act.

[66] Clearly an employer is entitled to take into account the needs of the enterprise in deciding whether to agree to a request. The fact that the Minchinbury Agreement makes plain the obvious needs of a retail business, which suggests that agreement on the taking of annual leave or time off from bankable hours is unlikely at peak operational periods, is not inconsistent with the legislation. The agreement may include terms dealing with the taking of paid annual leave (see s.93(4)).

[67] It is noted that an employer is under an overriding obligation, as provided by s.88(2), not to “unreasonably refuse” to agree to a request to take annual leave. The terms of clause 19 of the Minchinbury Agreement do not preclude such agreement by ALDI, even in relation to peak operational periods. There is no evidence or material before me to warrant a conclusion that the obligation in s.88(2) of the Act will not be observed in the case of the Minchinbury Agreement.

(d) Payment for leave

[68] The provisions dealing with payment of transport and distribution employees when taking annual leave, personal/carers leave, compassionate leave and jury service leave are set out in Part C of Schedule 4 of the Minchinbury Agreement. These payments are calculated on the basis of an employee’s average hours over the period of 12 months.

[69] The NES provides that an employee is to be paid at the employee’s rate of pay for the employee’s ordinary hours of work in the period of leave: see s.90(1) (annual leave), s.99 (personal/carers leave), s.106 (compassionate leave) and s.111(2) (jury service leave).

[70] The TWU-NSW submitted that the provisions of the Minchinbury Agreement relating to the payment for leave derogate from the NES, at least for some employees. It was said that if an employee’s hours of work increase during a 12 month period, the employee will be paid less than his or her ordinary hours of work at the time of taking leave in accordance with the averaging approach adopted in the agreement.

[71] It was explained by ALDI that under the monthly payment arrangements in the agreement (Schedule 4), employees take leave based on their ordinary hours of work calculated over the previous 12 month period. Under the fortnightly arrangements (Schedule 8), an employee’s leave is based on the notional shift hours the employee is engaged to work. The employee receives his/her base hourly rate for each hour of leave taken. In relation to the specific example relied upon by the TWU-NSW, it was said that ALDI could not conceive that this could occur. It was submitted that ALDI had no interest in disadvantaging employees and that in the event that an employee felt disadvantaged there were means available under the agreement to deal with such a situation.

[72] The provisions of the agreement relating to payment for leave are complex, and in some respects difficult to understand, and it is not clear whether they contravene the relevant provisions of the Act relating to payment for leave. However from the submissions it is clear that there is no intention on the part of ALDI that employees should be disadvantaged under the agreement in this regard.

[73] In these circumstances the issue raised by the TWU-NSW may be addressed and the position of employees clarified by an undertaking by ALDI to the effect that the payment to employees taking leave will be at a rate of pay not less than that provided under the NES. The undertaking would need to be in accordance with s.190 of the Act and meet the requirements of the section.

(e) Public holidays

[74] Clause 17 of the Minchinbury Agreement provides for public holidays. The clause states, in part, that:

[75] The payment and leave arrangements for public holidays for employees working in stores, the warehouse, and transport and distribution are set out in various schedules to the agreement. These arrangements apply in relation to employees who are required or not required to work on a public holiday.

[76] Section 114 of the Act provides an entitlement for employees to be absent from employment on a public holiday. It allows an employer to request an employee to work on a public holiday where this is reasonable (s.114(2)) and a right for an employee to refuse to do so if the request is not reasonable or the refusal is reasonable (s.114(3)). Subsection 114(4) sets out the matters which must be taken into account in determining whether a request to work on a public holiday is reasonable. The factors to be taken into account include:

[77] It was submitted by the NUW-NSW that the public holiday provisions of the Minchinbury Agreement are not consistent with the NES as expressed in s.114. This is because there is an expectation in the agreement that employees will work on public holidays and this seeks to displace the operation of the NES provisions in relation to a reasonable request and reasonable refusal to work on a public holiday. These include consideration of factors such as the employee’s personal circumstances.

[78] There is no substance to the objection made by the NUW-NSW in relation to the public holiday provisions in the agreement. The submission is based on a misreading of both the relevant legislative provisions and the agreement. In particular, clause 17 of the Minchinbury Agreement indicates that employees should expect that they will be requested to work on public holidays and refers to the application of s.114 of the Act. The need for a request for employees to work public holidays, the indication as to the likelihood of such requests being made and reference to s.114 in the public holidays clause in the agreement are consistent with the provisions of the NES relating to the entitlement to be absent from work on public holidays. In particular, it is clear that an employee may refuse a request to work on a public holiday in circumstances contemplated by s.114(4) of the Act.

Conclusion as to NES issues

[79] For all the reasons given, I am satisfied that the Minchinbury Agreement, and in particular the provisions considered above relating to hours of work, annual leave and public holidays, do not contravene s.55 of the Act. This is with the exception of the provisions in the agreement relating to payment for leave. As a result of the concern identified, the agreement cannot be approved without an acceptable undertaking by ALDI dealing with payment for leave.

Part-time employees and the better off overall test

[80] The Commission cannot approve an enterprise agreement unless it is satisfied that the agreement passes the better off overall test (BOOT) (see s.186(2)(d) of the Act). Section 193 of the Act provides when an enterprise agreement passes the BOOT. As the Full Bench of FWA explained in Armacell Australia Pty Ltd, 15

[81] As referred to earlier, on my preliminary examination of the Minchinbury Agreement, the agreement passed the better off overall test (and the other requirements of the Act relating to approval). This conclusion was reached having regard to a consideration of the entitlements of employees under the agreement, including rates of pay which are considerably higher than those provided under relevant modern awards. The conclusion was not challenged in the proceedings except by the NUW-NSW in relation to part-time employees.

[82] Clause 12 of the Minchinbury Agreement provides that employees may be engaged to work on a full-time, part-time, limited roster or casual basis. Part-time employees work for less than 38 hours per week and receive pro rata entitlements under the agreement. They may be salaried or hourly rate employees. Hourly rate part-time employees are advised on commencement of employment of their contract hours and these hours can only be varied by agreement with the employee.

[83] The NUW-NSW submitted that the part-time provisions of the agreement do not meet the requirements of the better off overall test. This is because employees, and in particular part-time warehouse employees, do not have the benefit of the significant industrial protections provided by clause 11 of the Storage Services and Wholesale Award 2010, 16 such as the specification in writing as to the hours to be worked each day, the days of the week the employee will work and the starting and finishing times each day. It was also said that overtime payments under the agreement only apply where the hours exceed the ordinary hours specified for full-time employees whereas under the modern award, overtime is paid for all time worked in excess of the hours as mutually agreed (clause 11.3(f)). The NUW-NSW referred to the criticisms of the part-time provisions in the prior agreement by Commissioner McKenna and noted that these findings were not overturned by the Full Bench on appeal.17 In this regard, it is noted that the Full Bench considered that the Commissioner’s concerns could have been addressed through undertakings.18

[84] It was submitted by ALDI that the approach urged by the NUW-NSW in relation to the better off overall test was plainly wrong, in that it suggested that if an award provides non-monetary benefits then equivalent benefits must be provided by an agreement for it to pass the test and that recourse may not be had to higher monetary benefits under the agreement in order to satisfy the test. In any event, it was submitted that the NUW-NSW failed in its submissions to take account of the non-monetary benefits available to part-time employees under the agreement, including the provision in clause 12 for rosters to be developed at least a week in advance having regard to the needs of the business and the requests of employees. It was said that it is preferable to enable employees to work the hours they choose rather than to compensate them for working hours they do not wish to work.

[85] In relation to monetary benefits, it was submitted by ALDI that if the employees did not meet the award definition of part-time employees and were regarded as casual employees for the purposes of the modern award and the application of the better off overall test, then they would be entitled under the award to none of the non-monetary benefits referred to by the NUW-NSW and would receive a rate of pay almost 30 per cent less than a part-time employee under the agreement. Further, it was explained by ALDI that, following the comments of the Full Bench, a provision was included in clause 13 of the Minchinbury Agreement which states that the remuneration of each classification of employee has been set to ensure that employees are better off overall under the agreement than they would be under the relevant modern award. The provision allows for a process whereby an employee who is of the view that they are not better off overall may request a comparison. If the employee and ALDI cannot reach agreement following this process, the matter can be referred to the Commission for arbitration.

[86] The better off overall test requires that each of the employees and prospective employees covered by an agreement be better off overall than under the relevant modern award. The test is not a line-by-line test, but is directed at a consideration as to whether an agreement results in the employees being better off overall. In the present case, this involves a consideration as to whether the entitlements of part-time employees under the Minchinbury Agreement will, on balance, result in a reduction in their overall terms and conditions of employment. In relation to reductions in specific terms and conditions, the inquiry is directed at whether such reductions are remedied, in an overall sense, by other more beneficial provisions in the agreement. 19

[87] As stated earlier, it was indicated to the parties that I had reached a preliminary view that the Agreements satisfied the relevant legislative requirements for approval. In relation to the better off overall test, the assessment followed a consideration of the agreement and the relevant modern awards, and of the materials provided to the Commission by ALDI in the Form F17 documentation, including the comparisons of the provisions of the awards and the agreement, and spreadsheets comparing rates of pay for typical rosters under the modern awards with rates paid under the agreements.

[88] In the proceedings, the NUW-NSW did not provide calculations of the entitlements of part-time employees under the agreement or other material as would demonstrate that those employees would not be better off overall under the agreement as compared with the modern award. Having considered all the submissions, I am satisfied that, despite the differences between some of the non-monetary entitlements under the modern awards and the agreement, when considered overall the agreement passes the better off overall test. The reduction in some award entitlements is remedied, in an overall sense, by other more beneficial provisions in the agreement, especially when the higher rates of pay are taken into account.

Medical examinations

[89] Clause 25 of the Minchinbury Agreement provides that employees may be required to undergo a medical examination where there is concern about their capacity to perform the inherent requirements of their jobs. The clause is in the following terms:

[90] The NUW-NSW submitted that this clause contains unlawful content (see ss.186(4), 194(a) and 195(1)) and objectionable terms (see ss.12 and 194(b)). It was also submitted that the clause is objectionable as it would entitle ALDI to rely on a subjective test in requiring a medical examination without the identification of a health condition that impacts on an employee’s ability to perform his or her job. It was said that there are no safeguards to ensure that the referral is based on health-related issues.

[91] I do not consider that clause 25 is an unlawful term as referred to in s.186(4) of the Act. The clause enables the employer to require an employee to submit to a medical examination where there are concerns that the employee cannot perform the inherent requirements of their job. On the face of the clause, it does not discriminate against any employee on the basis of any of the grounds or reasons referred to in s.195(1) of the Act (see also s.351). No evidence was adduced in the proceedings to suggest that such a clause has been applied by ALDI in such a discriminatory way or that this clause is likely to be applied in such a way. In circumstances where there was such a concern, or any other concerns about the inappropriate application of the clause, then recourse might be had to the dispute procedure in the agreement. There are also remedies provided under the Act in relation to unlawful conduct.

Conclusions on the Minchinbury Agreement

[92] For all the above reasons, I have decided that the Minchinbury Agreement may be approved. In particular, on the basis of the material which was lodged in support of the application for approval, and having considered the submissions and evidence relating to the objections made by the TWU-NSW and the NUW-NSW, I am satisfied that:

[93] I am also satisfied that the agreement meets the other requirements for approval set out in ss.186, 187 and 188 of the Act.

[94] Accordingly, and provided there is an acceptable undertaking dealing with the concern relating to the provisions dealing with payment for leave, I have decided that the Minchinbury Agreement will be approved.

[95] The undertaking should be provided to the Commission within seven days from the date of this decision, with a copy forwarded to each bargaining representative for the agreement. After seeking the views of the bargaining representatives (see s.190(4)), I will decide whether to accept the undertaking and to approve the agreement.

The Stapylton Agreement

[96] Both the TWU-Qld and Ms Pearson opposed the approval of the Stapylton Agreement. The TWU-Qld did not make any submissions in the proceedings. Ms Pearson wrote to the Commission with concerns and observations about the agreement. The concerns relate to the ballot process for the approval of the agreement, differentials in pay between warehouse workers under the agreement and similar workers in other States, discrimination against warehouse employees compared to stores workers in voting for the agreement, inaccuracies in the spreadsheets provided to the Commission concerning the better off overall test, and the use of the wrong modern award in relation to warehouse employees.

[97] Ms Pearson wrote to the Commission on 14 April 2013 about her concerns. Her email concluded that she would leave the matter in my hands. After the proceedings on 16 April 2013, in which Senior Counsel for ALDI responded to the various concerns raised by Ms Pearson, 20 a copy of the transcript was forwarded to her. On 2 May 2013 Ms Pearson provided submissions and additional information regarding her concerns and objections.

[98] I have considered the various matters raised by Ms Pearson. In relation to the counting process for the vote to approve the agreement, Ms Pearson attended the ballot count and made various comments and complaints about the process. These concerns are outlined in her submissions and were addressed in the proceedings by ALDI. I am not persuaded that the concerns raised would warrant any inference that the agreement was not genuinely agreed to by the employees covered. In this regard, I note that no issues have been raised in relation to the vote or the counting process by the SDA or any of the other unions concerned. The Form F17 lodged by ALDI states that, of the 1267 employees to be covered by the Stapylton Agreement, 1045 employees cast a valid vote and 852 voted to approve the agreement. Even if the concerns raised by Ms Pearson about the counting process were substantiated, they would not result in any change to the outcome of the vote for the agreement, namely that a significant majority of the employees who cast a valid vote approved the agreement.

[99] In relation to the concern raised by Ms Pearson about differential rates for ALDI warehouse employees under different agreements, this is an outcome of the bargaining process and not a matter relating to the approval of the agreement by the Commission. As to the relevant modern awards, I am satisfied that the appropriate awards have been identified and applied for the purposes of the better off overall test.

[100] Ms Pearson also raised concerns about the spreadsheets provided to the Commission by ALDI comparing rates of pay under the modern award and the agreement for typical rosters worked by ALDI employees in the Stapylton Region and pointed to discrepancies between the spreadsheet for a warehouse operator on a 65 hour contract and an earlier spreadsheet for such a worker previously provided to her. The explanation for the difference would seem to relate to the hours worked in the different examples. The earlier spreadsheet was forwarded to Ms Pearson in December 2012 with a request for her to advise ALDI if she had any questions or concerns. The spreadsheets were also provided to the SDA and the spreadsheets for transport operators were provided to the TWU with a similar request. No issues were raised at that time or now by the unions or Ms Pearson about the examples not being reflective of rosters regularly worked or that the calculations based on them were wrong. There is no basis therefore to revisit the consideration as to whether the agreement passes the better off overall test.

[101] The issues raised by Ms Pearson concerning whether the group of employees covered by the agreement was “fairly chosen” are similar to those raised by the TWU-NSW and the NUW-NSW in relation to the Minchinbury Agreement and have been addressed earlier in this decision.

[102] For similar reasons as given in relation to the Minchinbury Agreement, I am satisfied that the relevant statutory requirements have been met in relation to the approval of the Stapylton Agreement.

[103] Accordingly, and provided there is an acceptable undertaking dealing with the concern relating to the provisions for payment for leave, I have decided that the Stapylton Agreement will be approved.

Derrimut Agreement

[104] The TWU-Vic opposed the approval of the Derrimut Agreement, but did not make any submissions in the proceedings. The SDA supports the approval of the agreement. The Victorian branch of the NUW seeks to be covered by the agreement but did not appear in the proceedings or indicate whether or not it supports approval.

[105] For similar reasons as given in relation to the Minchinbury Agreement, I am satisfied that the relevant statutory requirements have been met in relation to the approval of the Derrimut Agreement.

[106] Accordingly, and provided there is an acceptable undertaking dealing with the concern relating to the provisions for payment for leave, I have decided that the Derrimut Agreement will be approved.

SENIOR DEPUTY PRESIDENT

Appearances:

G Hatcher Senior Counsel with A Perigo of counsel for ALDI.

M Gibian of counsel for the TWU.

S Mueller for the NUW.

P Walker for the SDA.

Hearing details:

2013.

Sydney:

April 16.

Final written submissions:

ALDI, 18 and 22 April 2013.

TWU, 19 April 2013.

 1   [2012] FWA 161.

 2   [2012] FWAFB 9398.

 3   Affidavit of David Zalunardo, at para 12.

 4   [2012] FWAFB 2206.

 5   Re ANZ Stadium Casual Employees Enterprise Agreement 2009 [2010] FWAA 3758.

 6   Construction, Forestry, Mining and Energy Union v Fair Work Australia (2011) 195 FCR 74 at [102]-[103].

 7   Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 2206.

 8   Ibid at [19].

 9   See e.g. Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2012] FWAFB 7866.

 10   See [2012] FWAFB 9398 at [30]-[42].

 11   Ibid at [40], [42].

 12   Ibid at [56].

 13   See Macpherson v Coal & Allied Mining Services Pty Ltd (No. 2) (2009) 189 IR 50 at 80, where Raphael FM found that the employer was not in breach of s.226(1) of the Workplace Relations Act 1996, which provided that an employee must not be required to work more than 38 hours per week plus any reasonable additional hours, by requiring the employee to work the six additional hours comprised in a new 44 hour roster.

 14   See s.114(4) of the Act for the full list of matters which must be taken into account.

 15   [2010] FWAFB 9985.

 16   MA000084.

 17   [2012] FWAFB 9398 at [43]-[49].

 18   Ibid at [49].

 19   See Liquor, Hospitality and Miscellaneous Union v Ausco Martin Pty Ltd [2010] FWAFB 6214 at [19]. This decision concerned the “no disadvantage test” applied under the Workplace Relations Act 1996 and transitional legislation. However both the no disadvantage test and the better off overall test require a broadly similar process of identifying the terms of an agreement that are more and less beneficial than those of the relevant award, leading to an overall assessment. “While the BOOT is expressed in different terms to the NDT, each involves a global assessment”: Modern Awards Review 2012 - Award Flexibility [2013] FWCFB 2170 at [134]. See also the authorities cited at footnote 70 of that decision.

 20   See transcript at PN710-721.

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