ALDI Foods Pty Limited, As General Partner of ALDI Stores (A Limited Partnership) [2017] FWC 2188

[2017] FWC 2188 The attached document with the above code wholly replaces the document previously issued with the code ([2017] FWCA 202) on 11 January 2017. It is replaced for formatting compliance reasons. The refiled Decision of 18 April 2017 has been withdrawn and is wholly replaced with this refiled Decision. The date of this Decision, refiled 20 April 2017, remains as 11 January 2017. Simona Grieco Associate to Deputy President Bull Dated 20 April 2017 -- 1 of 18 -- -- 2 of 18 -- 1 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) (AG2015/6335) DEPUTY PRESIDENT BULL SYDNEY, 11 JANUARY 2017 Application for approval of the ALDI Minchinbury Agreement 2016. Application for approval of the ALDI Minchinbury Agreement 2016 - opposed by the SDA - BOOT considered – undertakings provided. NERR issue outstanding, interim decision issued [1] An application has been made by ALDI Foods Pty Limited, as General Partner of ALDI Stores (ALDI) (the applicant/ALDI) for the approval of an enterprise agreement known as the ALDI Minchinbury Agreement 2016 (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] In the F17 statutory declaration accompanying the application, Mr Tindal, a Managing Director for ALDI, described the group of employees to be covered by the Agreement in the following manner: “The Agreement covers all operational employees who would otherwise be covered by a Modern Award, who are employed in ALDI's Minchinbury Region. The only employees employed in ALDI's Minchinbury Region that are excluded are administrative employees and senior managers with disciplinary responsibilities. The Agreement covers: • employees engaged in a retail store operated by ALDI in the Minchinbury Region in the positions of Store Manager, Assistant Store Manager, Store Management Trainee, Store Assistant and Stock Replenisher; • employees engaged in the Minchinbury Distribution Centre located at 1 Sargents Road, Minchinbury operated by ALDI in the positions of Warehouse Operator, Warehouse Mechanic, Maintenance Engineer, Warehouse Caretaker, Palletiser; and [2017] FWC 2188 DECISION -- 3 of 18 -- [2017] FWC 2188 2 • employees engaged in the transport and distribution operations of ALDI in the position of Transport Operator operating from the Minchinbury Distribution Centre.” [3] Clause 5 of the Agreement reflects the above coverage. [4] As per the requirements under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen. [5] The application disclosed that the Shop Distributive and Allied Employees Association (SDA), National Union of Workers’ (NUW) and the Transport Workers’ Union (TWU) were union bargaining representatives in the negotiation of the Agreement. Each Union filed Form F18 statutory declarations in relation to the approval of the Agreement. The NUW and TWU statutory declarations stated that the unions supported the approval of the Agreement. [6] The F18 filed by the SDA stated that the union did not support the approval of the Agreement and disagreed with the applicant’s statutory declaration in support of the application. The SDA canvassed a number of issues that it said prevented the better off overall test (BOOT) being satisfied. [1] The SDA sought production of a number of documents from ALDI, which it claimed were relevant to the assessment of the BOOT. The orders for production were opposed by ALDI. The matter was subject to a hearing and a Decision and Order were delivered on 11 April 2016 granting the application for the production of documents in part.1 [2] Due to the extensive nature of the SDA opposition to the Agreement approval, the matter was listed for a hearing on 22 April 2016. [3] ALDI sought leave to be represented by Mr Hatcher SC and Ms Perigo and the SDA similarly sought leave to be represented by Ms Duffy of counsel, assisted by Ms Fox. Leave was granted under s.596(2)(a) of the Act for the parties to be represented. The hearing was held in combination with an application by ALDI to vary the terms of the Enterprise Agreement ALDI Prestons 2013 (AG2015/7237), as the variations sought in that matter reflected the terms of the proposed Minchinbury Agreement. The SDA opposed the variation of the Prestons Agreement for similar reasons provided in its opposition to the approval of the Minchinbury Agreement. The Prestons Agreement variation was approved by the Commission on 16 December 2016.2 [4] Ms McNaughton, a solicitor with Enterprise Law, gave evidence on behalf of ALDI. Ms McNaughton was a bargaining representative for ALDI. Mr Zalunardo, the Managing Director of ALDI Stores Prestons Region, also gave evidence on behalf of ALDI. 1 Shop Distributive and Allied Employees’ Association v ALDI Foods Pty Limited, as general partner of ALDI stores (a Limited Partnership) [2016] FWC 2299 2 ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) T/A Aldi Stores [2016] FWCA 4320 -- 4 of 18 -- [2017] FWC 2188 3 [5] Ms Patena, a National Industrial Officer for the SDA, gave evidence on behalf of the SDA. All witnesses were subject to cross examination. I have had regard to this evidence and the written submissions of both parties. Submissions of the SDA [6] The SDA provided written submissions on 1 February and 18 March 20163 which elaborated on its objection to the approval of the Agreement. [7] The SDA opposed the Agreement’s approval on a number of grounds including:  the classifications of salaried and store employees used by ALDI in applying the BOOT in comparison with equivalent classifications in the General Retail Industry Award 2010 (the Award); and  the indicative roster schedules filed by ALDI not accurately reflecting the actual roster patterns of employees and as such, appearing as a ‘generic template’ used by ALDI.4 [8] The SDA advanced the argument that ALDI had filed similar indicative rosters in support of the approval of at least six agreements since 2012.5 The rosters submitted by ALDI neglect geographical region, trading hours and patterns of work.6 Subsequently, the SDA submitted that the BOOT could not be satisfied. [9] The SDA questioned the veracity of Ms McNaughton’s statutory declaration which stated that she had reviewed a variety of rosters in determining the BOOT.7 Ms Patena, on behalf of the SDA, gave evidence that questioned the accuracy of ALDI’s position on the BOOT calculations.8 Furthermore, the calculations in relation to overtime undertaken by ALDI were said to be incorrect as they did not take into consideration overtime as calculated in accordance with clause 29 of the Award.9 [10] The SDA undertook an analysis of the actual rosters worked by employees at Minchinbury and Preston and concluded the following: • Employees work on more than 6 consecutive days in one week; • Shifts often exceed 10 hours in length; • Split shifts occur; • Employees incur less than a 10 hour rest period between shifts; • Employees are regularly rostered outside the start and finish times provided for in the indicative roster.10 3 Exhibits R4 and R3 4 Exhibit R3 at [16] and PN110 5 Exhibit R3 at [16] 6 Ibid at [16] 7 Exhibit R3 at [26] 8 Exhibit R1 9 Exhibit R3 at [17] 10 Ibid at [30] -- 5 of 18 -- [2017] FWC 2188 4 [11] The SDA proposed that employees at both Preston and Minchinbury stores would be ‘worse off’ under the Agreements than under the Award. The SDA argued that the Agreements provided lesser standards than the Award in the following ways: • No minimum break between shifts; • No minimum engagement period; • No spread of hours for store salaried employees; • No entitlements to rest breaks; • No continuous shift provisions; • No guarantee as to the maximum days per week an employee can work and no assurance as to employees having consecutive days off. [12] It was further submitted that the business review payments (BRP’s) relied on by ALDI in regard to the BOOT do not apply to Store Managers and Assistant Store Managers unless they are in a home store.11 BRP’s do not apply to Store Manager Trainees or Store Assistants. Therefore, ALDI’s reliance on the BRP’s is not a means of curing the BOOT deficiencies in the Agreement for salaried store employees and assistants.12 [13] The SDA, in its F18 and written submissions, contended that ALDI has wrongly classified employees for the purposes of the BOOT and does not provide descriptors for manager classifications.13 As such, it was argued by the SDA that no effective comparison could be made between pay rates under the Award and the Agreement for the purposes of the BOOT.14 [14] During the hearing Ms Duffy, on behalf of the SDA, withdrew its opposition that the ALDI classifications were not correctly aligned to the Award classifications, this withdrawal based upon a lack of evidence supporting their argument. 15 [15] The SDA submitted that clause 20 of the Agreement, which pertains to Personal/Carer’s leave, is detrimental when compared with the National Employment Standards (NES). In particular, the requirement under clause 20 that employees notify their employer of leave prior to the start of their rostered shift and provide a medical certificate in specified circumstances were said to be more onerous than the requirements under the NES.16 11 Ibid at [6] 12 Ibid at [6]-[9] 13 Ibid [39]-[42] 14 The SDA contended that there is the ‘possibility’ that managers could be put in charge of 3-4 subordinate employees, and therefore would need to be afforded the appropriate classification under the Award.14 In this respect, the SDA submitted: “a) the appropriate comparative GRIA classification for Store Manager in Schedule 1 - Salaried Store Employees of the Agreement, is Retail Employee Level 8, not Retail Employee Level 6. b) the appropriate comparative GRIA classification for Assistant Store Manager in Schedule 1 - Salaried Store Employees of the Agreement, is Retail Employee Level 6, not Retail Employee Level 4. c) the appropriate comparative GRIA classification for Store Management Trainee in Schedule 1 - Salaried Store Employees of the Agreement, is Retail Employee Level 4, not Retail Employee Level 3.” The SDA also suggested that given the size of the ALDI Supermarket chain, store managers should be classified at a higher level than those managers working in smaller retail supermarkets. 15 PN539 16 Exhibit R4 at [7]-[13] -- 6 of 18 -- [2017] FWC 2188 5 [16] It was also submitted that overtime should not be calculated on a daily basis,17 and that the actual rosters of employees indicate that employees do not always receive the minimum break between shifts as required by the Award.18 [17] Clause 13 of the Agreement, Remuneration and Salary Sacrifice Arrangements, provides that an employee may request a comparison of benefits between the Award and the Agreement if, during a nominated period, they consider that they are not better off overall under the Agreement. The SDA submitted that this provision could not cure a failure to pass the BOOT or relieve the Commission from its obligation to be satisfied that the Agreement passes the BOOT. Submissions of ALDI: [18] ALDI submitted that the BOOT required a summation of the disadvantages and advantages under a proposed enterprise agreement and operates as an overall assessment of the Agreement and not a ‘line by line’ test.19 [19] The rosters supplied by ALDI are indicative only, as rosters frequently change to meet the needs of the business.20 Mr Hatcher submitted that the indicative roster is not the roster employees typically work but is ‘indicative’ of the hours employees typically work. Actual hours worked by employees will fluctuate.21 Indicative rosters acknowledge that employees are working a variety of different hours of work. The exercise was to identify the boundaries within which the hours are worked.22 It was submitted that the SDA’s objections to the indicative rosters are not founded upon any evidence or reasoned analysis.23 [20] ALDI rejected the assertion, (no longer pressed by the SDA) that classifications under the relevant Award are different to that under the proposed enterprise agreement.24 [21] The evidence of Ms Patena was rejected by ALDI, in particular the replicating of the fortnightly roster over an 8 week period, as ALDI submitted the rosters do not replicate themselves.25 [22] For the purposes of the BOOT ALDI also relied on store management employees including Store Managers, Assistant Store Managers, and Store Management Trainees receiving an additional week’s annual leave above the Award entitlement. [23] Mr Zalunardo gave evidence that there were an average of 17 employees in each store in the Minchinbury region. Each store has one Store Manager and then Assistant Managers 17 PN655 18 PN702 19 Exhibit A6 at [16] 20 Ibid at [17] 21 Exhibit A1 at [10] and PN570 22 PN116 23 Exhibit A6 at [19] 24 Ibid at [24] 25 PN400 -- 7 of 18 -- [2017] FWC 2188 6 and Trainee Managers. Under cross examination, Mr Zalunardo was unable to explain why there were two managers listed for the Hamilton store which is in the Minchinbury region.26 [24] In respect of the ability of employees to request a comparison of benefits under the Agreement and the Award as per clause 13 of the Agreement, Remuneration and Salary Sacrifice Arrangements, ALDI submitted that this provided a greater benefit than the Award. [25] Clause 20 of the Agreement, Personal/Carer’s Leave, requires employees to notify the employer before the start of their rostered shift that they will be absent and to state the nature of their illness/injury. The SDA, in their F18, stated that this was a more onerous obligation than the NES. ALDI submitted that the clause is consistent with the NES which allows for an agreement to provide for terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave.27 [26] It was put by ALDI that clause 20 does not detract from the Award, which provides the NES entitlement as it does not burden employees with a more onerous obligation to consult their employer.28 It was submitted that a requirement to notify prior to a rostered shift is less onerous that the NES provision of “as soon as practical”.29 [27] Mr Hatcher, on behalf of ALDI, stated that personal/carer’s leave would not be refused if notice could not reasonably be provided before commencement of a shift.30 [28] Following the hearing on 22 April, the parties were provided with the opportunity to provide further written submissions. The SDA raised concerns with the application of the BOOT in respect of employees not receiving a 12 hour break between shifts, non-provision31 of consecutive days off in a roster and the working of overtime outside the spread of hours. [29] The SDA continued to maintain that the revised roster calculations provided by ALDI were not reflective of the ‘real worked roster’ for Store Managers, Assistant Store Managers and Store Management Trainees. [30] ALDI also provided the Commission with further submissions and refuted the submission by the SDA that classifications of Store Manager on a 45 hour contract, Assistant Store Manager on a 45 hour contract, and Store Management Trainee on a 38 hour contract year 1 and 2 do not meet the BOOT.32 [31] ALDI repeated that they do not have a system of fixed rosters where employees work the same hours each week. The rosters are prepared at a store level having regard to the needs of the store and its employees. ALDI submitted that its evidence on this matter was unchallenged.33 26 PN337 27 S.107(5) 28 Exhibit A4 at [7] 29 S.107(2)(a) 30 PN887 31 SDA email of 28 April 2016 32 Written submission of 13 May 2016 33 See Affidavit of Ms McNaughton 20 January 2016 Exhibit A1 at [11] -- 8 of 18 -- [2017] FWC 2188 7 [32] It was put by ALDI that the fact that the SDA had shown that on some occasions employees work hours at odds with the indicative rosters does not establish that the rosters are not indicative or that the hours in the period examined by the SDA are indicative of hours the employees work more generally. [33] ALDI also rely on s.193(7) of the Act which states: “FWC may assume employee better off overall in certain circumstances 193(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.” [34] ALDI submitted that in the absence of evidence to the contrary the Commission is entitled to assume that if a class of employees are better off overall then all employees in the class are better off overall.34 [35] ALDI relied on the BOOT being applied as an overall test, and as such regard must be had for the additional week of annual leave provided for salaried employees and the Business Review Payments available to the specified managerial employees of which a nominated amount is non-discretionary.35 ALDI submitted that the BRP’s which are actually paid in practice were well in excess of that guaranteed for the purpose of the BOOT under the Agreement. [36] It was submitted that the SDA analysis is flawed as it uses the most inefficient basis to cost the rosters for the purposes of the BOOT i.e. the method used in allocating overtime. Better off Overall Test (BOOT) [37] Section 193(1) of the Act defines the BOOT in the following manner: “193(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.” [38] Sub section s.186(2)(d) of the Act provides that in order to approve an agreement the Commission must be satisfied that the agreement passes the BOOT. The BOOT is to be applied at the test time36 as opposed to when the Agreement is made37 No provision in the Act 34 ALDI submissions 13 May 2016 35 See Schedule 1 of the Agreement 36 S.193(1) Fair Work Act 2009 37 S.182(1) Fair Work Act 2009 -- 9 of 18 -- [2017] FWC 2188 8 including s.193(1) provides any legislative meaning to the phrase “better off overall”; this is left to the satisfaction of the Commission.38 [39] The Full Bench in Armacell Australia Pty and Others39 stated in respect of the BOOT: “The BOOT, as the name implies, requires an overall assessment to be made. This requires identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement.” [40] In Re McDonald’s Australia Enterprise Agreement 200940 the Full Bench held that the role of the Commission includes facilitating enterprise agreements: “[13] The appellants emphasised the facilitative aspects of these objectives. We agree that these objectives place the primary role for making enterprise agreements on the parties to those agreements and their representatives and that the role of Fair Work Australia (FWA) [as it was then known] includes facilitating the making of enterprise agreements. In general we believe that the requirements for approval should be considered in a practical, non-technical manner and that reasonable efforts should be made to clarify matters with the parties and consider undertakings to clarify or remedy concerns to the extent that these may be available under s.190 of the Act.”41 [41] It is noted that the Award allows for the employee/employer to agree to other arrangements outside the requirement to have two consecutive days off each week or three consecutive days off in a two week period.42 [42] Enterprise agreements are able to include terms that are ancillary or incidental to the NES provided they are not detrimental to an employee when compared to the NES.43 I am not convinced that the Personal/Carer’s Leave clause in the Agreement for the reasons advanced by ALDI is contrary to the NES. Undertakings [43] ALDI have submitted that in order to put beyond doubt that the Agreement satisfies the BOOT, it would provide a number of undertakings, which have been received by the Commission and copied to the bargaining representatives. Undertakings were provided on 20 January, 13 May and 12 August 2016. Rates of Pay Store Assistants [44] The hourly rates of pay for Store Assistants working and 5 out of 7 days are increased from $23.40 per hour to $24.00 per hour. 38 See Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd [2016] FCAFC 161 Jessup J at [33] 39 [2010] FWAFB 9985 at [41] 40 [2010] FWAFB 4602 41 Re McDonald’s Australia Enterprise Agreement 2009 [2010] FWAFB 4602 at [13]. 42 Clause 28.11 of the General Retail Industry Award 2010 43 S.55(4) Fair Work Act 2009 -- 10 of 18 -- [2017] FWC 2188 9 Split Shifts [45] ALDI have provided an undertaking due to the concern raised by the SDA in relation to split shifts. The undertaking states that the ordinary hours worked for Salaried Store Employees and Hourly Rate Store Employees on any day will be continuous except for work breaks and meal breaks. Store Meetings [46] ALDI made reference to the holding of management meetings with Salaried Store Employees and Store Employees of which, there are no more than 7 per year with each meeting not lasting more than 1.5 hours in duration.44 Where the employees are required to attend these meetings, the meetings will form part of their ordinary hours of work and be paid at their ordinary rate of pay and any period of attendance will count towards their ordinary weekly hours as if worked. Rest Breaks [47] Hourly Rate Store employees and Store Management Trainees will be granted at least a 10 hour rest break between the completion of work on one day and the commencement of work on the next day (attendance of employees at store meetings will be disregarded for the purposes of the rest break). [48] Where Hourly Rate Store employees have not received the 10 hour break they will receive double time until the break is taken without loss of pay where the break occurs during ordinary time hours. [49] Where Store Management Trainees have not received the 10 hour break they will receive double the Bankable Hourly Rate of a Store Assistant working any 5 out of 7 days until the break is taken without loss of pay and where the break occurs during ordinary time hours. Business Review Payment [50] In respect to the non-discretionary and guaranteed component of the BRP’s in the Agreement, an undertaking has been provided to increase the non-discretionary component. The undertaking provides that Assistant store managers working 50 hours a week will receive a minimum of $440 per fortnight and store managers working 50 hours per week a minimum of $570 per fortnight. Assistant store managers and store managers engaged to work an average of less than 50 hours per week will receive a pro rata payment. [51] In this Agreement ALDI submitted that a consistent pattern of rostered hours worked did not exist and that rosters changed according to the needs of the particular store and its 44 Undertaking of 13 May 2016 -- 11 of 18 -- [2017] FWC 2188 10 employees.45 Unlike its competitors, there is no system of fixed rosters with the same hours being worked each week.46 On this basis, ALDI have prepared indicative rosters for the purposes of the BOOT. The exercise undertaken by ALDI was to identify the boundaries within which the hours are worked.47 [52] Having examined the calculations of both parties in respect of hours worked and payments under the Agreement vis-à-vis the relevant Awards I am satisfied that the undertakings provided by the applicant address the concerns raised by the Commission in respect of the BOOT.48 I am further satisfied that the undertakings also address the issues raised by the SDA. [53] I am of the view that the reference to an employee requesting a comparison of benefits between the Agreement and the Award in clause 13 of the Agreement is not a necessary requirement in meeting the BOOT. [54] As per s.190(3) of the Act, the undertakings, while essential in alleviating concerns with the BOOT, neither cause financial damage to employees or result in substantial changes to the Agreement. A copy of the undertakings is attached at Annexure’s A, B and C. NERR [55] As per s.173 of the Act, an employer that will be covered by a proposed enterprise agreement must take all reasonable steps to give a notice of the right to be represented by a bargaining representative (NERR) to each employee who will be covered by the Agreement and is employed at the notification time. Section 174(1)(A) states that the notice must contain the content prescribed by the regulations and not contain any other content and be in the form prescribed by the regulations. The regulations set out the content and form of the notice at Schedule 2.1. [56] In Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union49 (Peabody), a Full Bench of the Commission held that compliance with the form prescribed for the purposes of s.174(1A) of the Act was mandatory, and that a failure to comply would invalidate the notice. [57] On 24 May 2016 Ms McNaughton, on behalf of the applicant, advised the Commission that the word ‘employer’, where it appeared in the last paragraph of the prescribed NERR, read ‘leader’ as it best represented ALDI’s individual circumstances. [58] Following an invitation from the Commission to comment on the applicant’s NERR the SDA wrote to the Commission on 27 May 2016, and in summary, described the word substitution as an incurable jurisdictional impediment to the approval of the Agreement. The SDA referred to a number of Commission decisions to support their position. 45 Exhibit A4 at [22] 46 ALDI Written submissions 13 May 2016 at [6] 47 PN116 48 The Commission wrote to the applicant on 11 January 2016, re: BOOT and other matters 49 [2014/ 242 IR 210 -- 12 of 18 -- [2017] FWC 2188 11 [59] On 31 May 2016, the applicant responded, arguing that the word substitution was not an impediment to the Agreement’s approval, and stated that it would strain credulity to contend that the change in words, from ‘employer’ to ‘leader’, is a change that Parliament intended would render the NERR invalid. [60] On 8 June 2016, the SDA’s solicitors wrote to the Commission advising that an identical issue of NERR compliance was being dealt with by a Full Bench of the Commission. [61] On this basis the parties were advised that this approval decision would be delayed until the outcome of the Full Bench decision was known. Subsequently, the issue of NERR compliance became an issue being dealt with by a Full Court of the Federal Court. [62] The Federal Full Court decision in Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd [2016] FCAFC 161 (ALDI Regency Park) was handed down on 29 November 2016. The decision traversed compliance with s.174(1)(A) and addressed the decision of the Full Bench in Peabody. [63] In ALDI Regency Park an identical issue in regard to the alleged non-compliance with s.174(1A) was agitated. That being, the word ‘employer’ had been substituted with the word ‘leader’. Unlike in this application, in the Full Court matter the point was being raised by the SDA for the first time, having not been raised during the approval application or the Full Bench appeal hearing. [64] To ascertain the Full Court’s position on compliance with s.174(1A) it is necessary to consider the comments made by each of the judges. [65] Jessup J stated that whatever might be the strength of the SDA argument considered as a legal proposition in isolation, because it does not involve a jurisdictional fact, and in light of the procedural history of the matter in the exercise of the court’s discretion he would decline to grant the relief sought. Jessup J then went on to observe ex hypothesi that the nomination of the contact as the ‘leader’ would not amount to a departure from the prescribed form even if strict compliance were necessary. Had the Full Bench’s attention been drawn to the departure from the prescribed form it would not have been in error, jurisdictionally, to have read s.174(1A) as permitting the reference to ‘leader’ as used, on the facts of the case. [66] Katzmann J declined to agree with Jessup J and expressed a different view on whether strict compliance with the content and form requirements for the NERR is required. While accepting that ALDI may have substantially complied with the form, her Honour held that nothing less than strict compliance is sufficient, based on the language of s.174(1A). As such, omission of the word ‘employer’ and the substitution of the word ‘leader’ was not in the prescribed form and the notice failed to comply with s.173(1). Katzmann J also declined to provide relief to the SDA for the same reasons expressed by Jessup J, being that the point was not argued before the Full Bench. [67] White J agreed with the reasoning of Jessup J in holding that the NERR argument did not involve a jurisdictional fact. White J when on to state that the reasons of Katzmann J regarding strict compliance being necessary appeared to have some force, but that he would prefer not to express a concluded view until it is necessary to do so. -- 13 of 18 -- [2017] FWC 2188 12 [68] In summary, all views of the Full Court on the topic were obiter with the decision of Katzmann J stating that strict compliance was required, contrary to that of Jessup J and with White J indicating that the views of Katzmann J on the subject appeared to have some force. [69] Both ALDI and the SDA provided comment on the effect of the Federal Full Court decision. [70] The SDA have submitted50 that the Full Federal Court, despite having the opportunity to do so, did not overturn the decision of the Full Bench in Peabody, which remains binding on Commission members. On that basis any deviation from the prescribed statutory contents of the NERR must result in the Agreement approval application being dismissed. [71] On 21 December 2016, ALDI advised the Commission that an application for special leave to appeal the ALDI Regency Park Federal Full Court decision had been made to the High Court, having advised on 16 December that an application was being prepared. The special leave grounds traverse a number of matters including application of the BOOT, provision of the reconciliation clause and coverage of employees under the Agreement in respect of the work they were engaged to do rather than work they were actually doing.51 In the correspondence of 16 December 2016, ALDI requested that a decision on the application to approve the Agreement be adjourned pending the outcome of the special leave application. [72] ALDI submitted that the ALDI Regency Park decision does not provide clear guidance to the Commission where the NERR departs from the prescribed form. However the High Court special leave application does not address the NERR issue. [73] ALDI also advised that on 1 July 2016, in an application under s.60852 of the Act, it had sought from President Ross a referral to the Federal Court on the question of whether strict compliance with the NERR prescribed form in Regulation 2.05 of the Fair Work Regulation 2009 was an essential element of an agreement’s approval.ALDI requested that the application be adjourned until the Full Court decision in ALDI Regency Park.53 [74] The correspondence went on to state; ‘given the lack of conclusive determination of this issue, we advise that ALDI is now formulating the questions it would seek for the President of the Fair Work Commission to refer to the Federal Court … “ [75] I am of the view, consistent with that submitted by the SDA that the Full Bench decision in Peabody remains binding on individual members of the Commission. As a valid notice has not been issued by the employer I cannot therefore, be satisfied that s.188(a)(ii) has been complied with, with the result that the Commission cannot be satisfied that the Agreement was genuinely agreed to for the purposes of s.186(2)(a). [76] However in view of the impending legal proceedings in respect of NERR compliance, this decision will remain as an interim decision with the approval or dismissal of the application stayed until the applicant either requests a final decision to be issued or a 50 Correspondence dated 14 December 2016 51 Raising an issue as to whether the Agreement should have been a Greenfields agreement. 52 S.608 Referring questions of law to the Federal Court 53 See matter C2016/1264 -- 14 of 18 -- [2017] FWC 2188 13 conclusive determination, as sought by ALDI, is provided by a Full Bench of this Commission or the Full Court of the Federal Court. [77] As indicated above the Commission is otherwise satisfied that the Agreement meets all the legislative requirements for approval. DEPUTY PRESIDENT Appearances: G Hatcher SC and A Perigo for ALDI A Duffy Counsel and Ms J Fox for the SDA Hearing details: 2016. Sydney, April 22. Further written submissions: ALDI: 13, 24, 31 May, 21 December 2016 SDA: 28 April, 27 May, 14 December 2016 Printed by authority of the Commonwealth Government Printer <Price code G, PR91957> -- 15 of 18 -- [2017] FWC 2188 14 Annexure A -- 16 of 18 -- [2017] FWC 2188 15 Annexure B -- 17 of 18 -- [2017] FWC 2188 16 Annexure C -- 18 of 18 --