ENTERPRISE AGREEMENTS – approval – s.185 Fair Work Act 2009 – application for approval of the ALDI Derrimut Agreement 2016 by ALDI Foods P/L as General Partner of Aldi Stores a Limited Partnership t/a ALDI Stores – agreement covered all operational employees who would otherwise be covered by a modern award, employed in ALDI’s Derrimut region – Shop Distributive and Allied Employees Association (SDA) objected to agreement – submitted agreement did not pass the better off overall test (BOOT) and that subsequent undertakings provided by ALDI not sufficient to remedy BOOT issues – further issue regarding Notice of Employee Representational Rights (NERR) – ALDI had substituted word ’employer’ for ‘leader’ in final paragraph – determined prior to hearing that NERR issue to be deferred until decision handed down by Full Court of Federal Court in ALDI Regency Park – Commission satisfied that group of employees to be covered by agreement fairly chosen for purposes of s.186(3), based on operational and geographical distinction of employees – rates of pay in agreement significantly higher for most classifications than comparable award classification – Commission concluded that at the test time each award covered employee and each prospective award covered employee for agreement would be better off overall if agreement applied – conclusion based on indicative rosters and undertakings provided by ALDI, and consideration of agreement terms which are more beneficial and less beneficial and an overall assessment of whether employee would be better off overall [Armacell] – undertakings did not result in substantial change to agreement or cause any financial detriment to employees – satisfied ALDI complied with s.180(2) of FW Act – regarding NERR, identical issue addressed in obiter in ALDI Regency Park – ALDI submitted ALDI Regency Park did not provide clear guidance to Commission where NERR departs from strict form in FW Regulations – SDA submitted that despite opportunity, ALDI Regency Park did not overturn Peabody and application must be dismissed due to NERR’s deviation from prescribed form – ALDI to make application to Commission President under s.608 for referral to Federal Court of questions related to NERR compliance with prescribed form – Commission unable to approve agreement unless satisfied valid NERR issued – with exception of NERR issue, Commission otherwise satisfied that agreement met all legislative requirements for approval – due to further legal proceedings regarding NERR, Commission’s decision issued as interim decision – approval or dismissal of application stayed until applicant requests final decision to be issued, or conclusive determination provided by a Full Bench of Commission or Full Court of Federal Court or other circumstance Commission deems requires a final decision. ALDI Derrimut Agreement 2016
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