Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd [2016] FCAFC 161

FEDERAL COURT OF AUSTRALIA

Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd [2016] FCAFC 161 File number: VID 349 of 2016

Judges: JESSUP, KATZMANN AND WHITE JJ

Date of judgment: 29 November 2016

Catchwords: INDUSTRIAL LAW – application for judicial review under s 39B of the Judiciary Act 1903 (Cth) – decision by Deputy President of the Fair Work Commission (FWC) to approve, pursuant to ss 186-188 of the Fair Work Act (2009) (Cth) (FW Act), an enterprise agreement between the first respondent and persons expected to be employed in the enterprise – appeal to the Full Bench of the FWC dismissed – whether jurisdictional error in the decisions of the FWC – whether the agreement had been genuinely agreed to for the purposes of s 186(2) when the employees voting to approve it were not covered by the agreement upon its making – consideration of the terms "will be covered" and "covered by" within Part 2-4 of the FW Act – whether the FWC had erred in determining that the agreement satisfied the "better off overall" test under s 186(2)(d) of the FW Act – Held (by majority): jurisdictional errors established – discussion of whether the decision of the Full Bench was also affected by jurisdictional error by reason of a defect in the notice sent by the employer to employees pursuant to s 173 of the FW Act.

Legislation: Acts Interpretation Act 1901 (Cth) s 25C Fair Work Act 2009 (Cth) ss 3, 12, 51, 52, 53, 54, 58, 168A, 169, 171 – 182, 185, 186, 187, 188, 190, 193, 247 – 251, 256A, 607 Fair Work Amendment Act 2012 (Cth) Judiciary Act 1903 (Cth) s 39B Fair Work Regulations 2009 (Cth)