Fair Work Act 2009

s.604 - Appeal of decisions

ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) trading as ALDI Stores

Shop, Distributive and Allied Employees Association, United Workers' Union, Transport Workers' Union of Australia

Appeal against a decision of Deputy President Slevin at Sydney on 20 October 2025 in matter number AG2024/4407, AG2025/972 and AG2025/1118- Application for approval of three enterprise agreements - Deputy President not satisfied agreements passed the BOOT - Deputy President directed further proceedings to consider s 191A - Balance of convenience does not support stay being granted - Application for a stay refused.

• [1] ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) (ALDI) has filed a notice of appeal seeking permission to appeal and to appeal from the decision of Deputy President Slevin in ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) trading as ALDI Stores [2025] FWC 3130 handed down on 20 October 2025. The decision concerned applications made by ALDI under s 185 of the Fair Work Act 2009 (Cth) (the Act) for approval of three enterprise agreements known as the ALDI Prestons Agreement 2024, the ALDI Jandakot Agreement 2025, and the ALDI Stapylton Agreement 2025 (together referred to as the Agreements).

• [2] In his decision, the Deputy President indicated (at [62]) that he was not satisfied that each award covered employee, and each reasonably foreseeable award covered employee for the Agreements, would be better off overall if the Agreements applied to them than if the Storage Services and Wholesale Award 2020 (the SSW Award) applied to them. Accordingly, the Deputy President was not satisfied that the Agreements passed the better off overall test for the purposes of s 186(2)(d) of the Act. The Deputy President considered (at [63]-[65]) whether his concern as to whether the Agreements passed the better off overall test could be addressed by undertakings but said that ALDI had indicated it would not provide an undertaking.

• [3] The Deputy President then considered the operation of s 191A of the Act. Section 191A was introduced into the Act by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) and commenced operation on 6 June 2023. The section provides:

191A FWC may approve an enterprise agreement with amendments

(a) an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185; and

(b) the FWC has a concern that the agreement does not meet the requirement set out in paragraph 186(2)(d) (better off overall test).

(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an amendment specified by the FWC is necessary to address the concern.

(3) If the FWC intends to specify an amendment under subsection (2), the FWC must seek the views of the following:

(a) the employer or employers that are covered by the agreement;

(b) the award covered employees for the agreement;

(ba) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies - those employees;

(c) a bargaining representative for the agreement.

• [4] As will be apparent, s 191A provides that, if the Commission has a concern that the agreement does not meet the better off overall test, the Commission may approve an enterprise agreement if the Commission is satisfied that an amendment specified by the Commission is necessary to address the concern.

• [5] The Deputy President indicated that he proposed to exercise the discretion under s 191A and to specify amendments to the Agreements. The Deputy President said (at [68]):

[68] I propose to exercise the discretion and to specify an amendment that the Agreements provide for ALDI to reach agreement with each of its Hourly Rate part-time employees on a regular pattern of work, specifying at least, the hours worked each day, which days of the week the employee will work, and the actual starting and finishing times each day and to record that agreement in writing. Consequential changes will also be necessary to ensure that the rosters reflect the terms of the agreed regular pattern of work

• [6] The proceedings were listed for directions on 3 November 2025. On 3 November 2025, ALDI sought an adjournment of the proceedings before the Deputy President, or alternatively a stay, on the basis that it had filed a notice of appeal with respect to the decision of 20 October 2025. The Deputy President directed that ALDI provide submissions in relation to its application for a stay. ALDI provided further written submissions in response to that direction on 5 November 2025 and in support of its application for a stay.

• [7] Later on 5 November 2025, the Deputy President issued directions. The directions require ALDI to send the decision of the Deputy President and a memo drafted by him to all employees covered by the Agreements through its MyALDI app by 10 November 2025. The memo seeks the views of employees in relation to the proposal to specify an amendment to the Agreements as contemplated by s 191A(3). Directions were also made for the parties to file submissions and evidence in relation to the proposal and the proceedings were listed for further hearing on 17 December 2025.

• [8] In its notice of appeal, ALDI seeks a stay. The stay application was listed before me on 6 November 2025. On that morning, ALDI filed an amended notice of appeal. The amended notice of appeal also seeks to appeal the "Decision on 5 November 2025 to issue directions" in addition to the decision of 20 October 2025. At the hearing of the stay application, counsel for ALDI explained that the amended notice of appeal was intended to incorporate an appeal from the decision to refuse the stay application. In relation to the stay application, the amended notice of appeal says:

A stay is sought for the whole decision and the directions issued on 5 November 2025.

At present, the Deputy President has proposed to exercise the discretion set out in section 191A of the FW Act and specify an amendment to the Agreements. In doing so, the Deputy President intends to program the matter to seek the views of the persons set out in section 191A. The directions issued on 5 November 2025 set out the further programming of the matter.

A stay is sought to stay any further steps in the proceedings before Deputy President Slevin.

The basis on which the Deputy President has sought to exercise his discretion under section 191A, for the reasons set out above, is erroneous. While the decision of the Deputy President that the Agreements do not pass the BOOT is under appeal, no further steps in the proceedings should be taken.

• [9] The Shop, Distributive and Allied Employees Association (the SDA) appeared at the hearing of the stay application. The SDA opposes a stay order being granted and submits that the proceedings before the Deputy President should proceed.

• [10] The power to grant a stay pending the hearing and determination of an appeal lodged under s 604 is contained in s 606(1), which provides:

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

• [11] The Commission's power to grant a stay is necessarily subject to it being demonstrated by the applicant for a stay that there is an operative decision with ongoing or future effect capable of being stayed under s 606(1).[1] For example, it has been concluded that a decision of a member of the Commission declining to recuse themselves and to vacate directions, to refuse permission for legal representation or to dismiss a jurisdictional objection do not involve operative decisions capable of being stayed.[2]

• [12] ALDI has sought to address that issue in the amended notice of appeal by also appealing the decision of the Deputy President to issue directions on 5 November 2025. It says that this decision at least has future and ongoing effect capable of being stayed. The decision to issue directions is said to involve error because the directions flow from the Deputy President's decision that the Agreements do not pass the better off overall test and the proposed exercise of discretion under s 191A of the Act. For present purposes, I am prepared to accept that ALDI has identified an operative decision capable of being stayed. The directions and further hearings proposed by the Deputy President arise from his determination in relation to the better off overall test and in relation to s 191A. A stay of those directions would, arguably at least, involve a stay of "the operation of the whole or part of the decision" for the purposes of s 606(1).

• [13] It is necessary then to consider whether a stay should be granted. A commonly cited formulation of the principles applicable to the grant of a stay pending appeal is found in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 in which Ross VP (as his Honour then was) said:[3]

In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted."

• [14] Assistance may also be derived from the approach adopted by the courts in relation to an application to a stay pending appeal.[4] It is appropriate to emphasise that an applicant for a stay must positively demonstrate that the balance of convenience weighs in favour of a stay being granted. There is no prima facie position in favour of the granting of a stay, and the grant of a stay is not to be regarded as the usual course.[5] However, it is not necessary that the applicant for a stay demonstrate special circumstances.[6]

• [15] The first matter to consider is whether ALDI has an arguable case, with some reasonable prospects of success, in respect of both the question of permission to appeal and the substantive merits of the appeal. In its grounds of appeal, ALDI contends that the Deputy President erred by adopting a "line-by-line" approach to the comparison between the conditions in the Agreements and the SSW Award, by comparing hourly rate warehouse employees to part-time employees under the SSW Award rather than to casual employees, in making findings regarding the non-monetary detriments occasioned by the Agreements which lack evidentiary foundation and were not raised by the parties and in relation to the operation of s 191A of the Act.

• [16] The SDA contends that the notice of appeal discloses no arguable case on appeal. Some of the matters raised by the SDA might have force. However, it is not possible, at this stage, to assess the grounds of appeal in any detail. On the basis of the information before me, I accept that ALDI has an arguable case in relation to the appeal. Although some of the grounds may encounter difficulties, the grounds are arguable. ALDI also has an arguable case for permission to appeal to be granted in circumstances in which the Agreements will cover a large number of employees and it says that other enterprise agreements covering ALDI's operations with similar conditions have been approved by the Commission. I also note that s 191A is a new provision which has received little consideration as yet and that permission to appeal might be warranted to permit consideration of that section by a Full Bench.

• [17] However, I am not persuaded that the balance of convenience favours granting a stay. ALDI submits that the further directions issued by the Deputy President, and the process to consider whether to specify amendments to the Agreements under s 191A, are premised on an erroneous conclusion that the Agreements do not pass the better off overall test. It says that to allow those processes to go forward would cause uncertainty for a large group of employees and cause unnecessary costs and inconvenience to the parties. It says that the appeal with respect to the existing decision should be determined before any further proceedings take place. I do not accept those submissions.

• [18] First, the Deputy President has not, as yet, determined the applications for approval of the Agreements. The Deputy President has done no more than express a view as to whether the Agreements pass the better off overall test and proposed to address his concern in that respect by specifying amendments under s 191A. The Deputy President proposes to receive further submissions about that matter. It is desirable that this occur before the appeal is considered by a Full Bench. Having received submissions, the Deputy President might decide not to specify amendments and dismiss the applications for approval. He might approve the Agreements with amendments which all parties accept in which case an appeal might become unnecessary. He might specify amendments which ALDI or the SDA believe involve error in which case further grounds of appeal will be necessary or the SDA, or another bargaining representative, might appeal themselves. It is preferrable that any appeal, and the question of permission to appeal, be considered when the outcome of this process is known.

• [19] Second, it is unclear how the Full Bench could deal with some of the grounds of appeal relied upon by ALDI until the Deputy President has resolved the proceedings. Ground 7 in the amended notice of appeal is as follows:

7. The Deputy President erred that in proposing to the exercise his discretion under section 191A of the FW Act in that he:

7.2 proposes to act in excess of his discretion by varying the agreement in a manner that does not reflect the agreement made.

• [20] It is difficult to see how that ground could be determined by the Full Bench until the Deputy President has decided whether to specify amendments for the purposes of s 191A and the form of any amendments specified for the purposes of the section.

• [21] Third, ALDI did not explain what uncertainty would be created by the Deputy President continuing to deal with the proceedings to their conclusion. I accept that it is desirable that the conditions of employment to apply to a large group of employees should be determined with certainty as soon as possible. In my opinion, that is best done by permitting the proceedings before the Deputy President to be finalised before an appeal is considered by a Full Bench of the Commission. If the proceedings are stayed at this stage, it is possible that there will be multiple appeals, and the proceedings will not be resolved for a significant period of time. The most efficient course is to permit the Deputy President to resolve the applications and for the Full Bench to deal with any appeals at one time.

• [22] Fourth, the preparation of submissions and evidence and the further hearing to be conducted by the Deputy President will involve some expense and effort by the parties. It is possible that this work will be for no purpose if ALDI establishes that the Deputy President erred in his consideration of the better off overall test. I have taken that matter into account. However, in my opinion, it remains the more efficient course for the Commission and all the parties that the proceedings before the Deputy President be completed, and the Full Bench consider all issues raised at one time. Greater inconvenience and expense are likely to be occasioned by the course proposed by ALDI.

• [23] Fifth, ALDI submits that, if the proceedings before the Deputy President go forward, it may be difficult to unscramble the steps taken pursuant to the directions issued on 5 November 2025. I do not understand why that would be the case. If the Deputy President were to approve the Agreements with amendments to which ALDI objects, it could then seek a stay. A stay of a decision to approve an agreement would prevent the Agreements coming into operation. If a stay is granted, no steps will be required to be taken under the Agreements as approved. If ALDI's appeal is ultimately successful, the decision to approve the Agreements with amendments could be quashed. If that is the course which plays out, no steps will have been taken which cannot be undone.

• [24] For these reasons, the application for a stay should be refused. The appeal will be listed before a Full Bench of the Commission on a tentative basis in late January 2026. If the Deputy President is able to resolve the proceedings before Christmas, the appeal can proceed at that time. Otherwise, the appeal can be listed on a convenient date in February 2026.

A Perigo, of counsel, instructed by Enterprise Law for ALDI.

J McKenna, of counsel, instructed by A Amin for the Shop, Distributive and Allied Employees Association.

[1] See, for example, Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWC 4276 at [11].

[2] Woodside Energy Ltd v The Australian Workers Union [2022] FWC 2573 at [14]; PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Nash [2024] FWC 1735 at [34]- [36]; Affinity Nursing Recruitment Pty Ltd v Thomas [2025] FWC 2344 at [10]- [13].

[3] Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 at [5].

[4] See, for example, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694; Powerflex Services Pty Ltd v Data Access Corporation [1996] FCA 460; (1996) 67 FCR 65 at 66.

[5] Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [11] citing Edwards v Telstra Corporation Limited [1998] AIRC 679, Print Q2467.

[6] Phillip Morris (Aust) Ltd v Nixon [1999] FCA 1281 at [17].

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