08 Apr Aldi Prestons Agreement 2013
In October 2017, 8 applications for approval of business agreements were referred to a full-fledged bank of the Fair Work Commission. The applications raised questions about how to apply the “best overall test” (“BOOT”) to agreements that converted penalty interest and other benefits into charged rates of pay. Full Bench has issued its decision, the Loaded Rates in Agreements Case, which clarifies how BOOT is implemented when an agreement contains charged rates. The assessment required by the BOOT is a mathematical assessment in which the comparative terms refer directly to remuneration. The assessment will be more complex if the agreement contains certain higher rights that are not monetary, that are available to the worker`s choice or that depend on certain events. If the charged rates cause financial harm to existing or potential workers in relation to the corresponding modern premium, it is unlikely that non-monetary, selective or non-financial rights will be sufficiently compensated, as part of an agreement, for the harm suffered by all the workers concerned, so that the agreement can pass through the BOOT. His request is “categorically rejected” by Aldi, which said in a statement: “The enterprise agreement provides for a reduction in working time and employees receive compensation for every hour worked.” Agreement known as the ALDI Prestons Agreement 2013 (the agreement). The application was filed pursuant to the Fair Work Act 2009.  The agreement is a single enterprise agreement that was approved on June 21, 2013 with a nominal expiry date 21 June 2017 and applies to the Territory of the Australian Capital and New South Wales. For existing workers, the Commission may review the turnover tables made by different categories of workers at the time of the test. In the case of existing and future workers, evaluation will inevitably lead to some assumptions. If a company is small and/or is still in development, or if the agreement covers a wider range of classifications, workplaces and/or service chart models that do not yet exist, the Commission will carefully examine the terms of the agreement to determine the types of work permitted by the agreement.
In June 2018, the Fair Work Commission adopted its decision in the Loaded Rates Agreements  FWCFB 3610 (“Tariffs charged in the case of agreements”). Following the decision, the Fair Work Commission approved on 16 October 2019 the Aldi Foods corporate agreements for the Aldi sites in Preston and Stapylton, both of which contain charged rates. The Commission sought evidence relating to ALDI`s rolling charts, including the working tables that attest to the work done by workers in different classifications. The Commission also asked ALDI to make commitments on the boot issues raised by the Commission. ALDI has established rollover tables and provided a number of commitments, including limiting the negative balance a worker can obtain under the banking arrangement. The Commission found that “no service table has been presented to prove that the load rates contained in the respective agreements would be lower than those that workers would receive” under the current premiums.