ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

ALDI FOODS PTY LIMITED AS GENERAL PARTNER OF ALDI STORES (A LIMITED PARTNERSHIP) APPELLANT

AND

SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES ASSOCIATION & ANOR RESPONDENTS

ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53 6 December 2017 M33/2017

ORDER

1. Appeal allowed in part.

2. Set aside orders 1, 2(b) and 3 of the Full Court of the Federal Court of Australia dated 29 November 2016 and, in their place, order that:

(a) the applicant's originating application for relief under s 39B of the Judiciary Act 1903 (Cth) be allowed in part; and

(b) a writ of mandamus issue directed to the second respondent, requiring it to determine the first respondent's appeal from the decision and orders of Deputy President Bull made on 22 September 2015 in matter number AG2015/3510 according to law.

On appeal from the Federal Court of Australia

Representation

G J Hatcher SC with A L Perigo for the appellant (instructed by Enterprise Law)

W L Friend QC with A M Duffy and C J Tran for the first respondent (instructed by AJ Macken & Co)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association

Industrial law (Cth) – Fair Work Act 2009 (Cth) – Enterprise agreements – Approval of enterprise agreements by Fair Work Commission – Where employer in process of establishing new undertaking – Where existing employees in other undertakings of employer accepted offer of employment in new undertaking – Where enterprise agreement made with those employees before new undertaking commenced operations – Whether agreement required to be made as "greenfields agreement" pursuant to s 172(2) and (4) of Fair Work Act – Where Commission may approve non‑greenfields agreement under s 186 of Fair Work Act only where satisfied agreement genuinely agreed to by employees covered by agreement – Whether employees "covered by" agreement from time agreement made or from time employees commence working under agreement.