High Court of Australia

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

6 Dec 2017

Case Number: M33/2017


Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ


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.

Industrial law (Cth) – Fair Work Act 2009 (Cth) – Enterprise agreements – Approval of enterprise agreements by Commission under s 186 of Fair Work Act – Where Commission, before approving agreement, required to be satisfied that each award-covered employee would be "better off overall" under agreement than under relevant modern award – Where Commission considered agreement passed better off overall test because clause in agreement entitled employees to payment of any shortfall in entitlement under agreement as compared with entitlement under modern award – Whether Commission failed to engage in comparison between agreement and modern award.

Words and phrases – "applies", "better off overall test", "covers", "employees covered by the agreement", "greenfields agreement", "will be covered by the agreement".

Fair Work Act 2009 (Cth) – ss 51, 52, 53, 54(1), 58(1), 172, 173(1), 176, 180(2)(a), 181(1), 182, 185, 186, 187(5), 188, 193, 207.

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