By Simon Rogers
Everyone knows ALDI. Not many people know it is one of Australia’s largest employers.
ALDI recently sought approval of three enterprise agreements (covering its Prestons, Stapylton and Jandakot facilities). The working pattern for part-time employees under the proposed agreements matched those under the existing agreements: employees are required to be available on any day of the working week and were not guaranteed advance notice of total hours on a given shift (but employees were provided with their rosters, including start times, between two and three weeks in advance).
The rostering flexibility was a deliberate and bargained feature: it allowed ALDI to match staffing levels to unpredictable throughput, while employees received additional remuneration in exchange for that flexibility.
When the applications for approval came before the Fair Work Commission (Commission) at first instance ([2025] FWC 3130 and decisions [2026] FWC 2, [2026] FWCA 1, [2026] FWCA 2 and [2026] FWCA 3 made on 2 January 2026), the Commission identified a concern under the better off overall test (BOOT): the uncertainty of hours was a detriment that elevated hourly rates did not sufficiently offset, assessed against the Storage Services and Wholesale Award 2020 as the reference instrument.
The Commission offered ALDI the opportunity to offer undertakings (in a particular from, which removed the negotiated flexibility). ALDI did not take that opportunity, so the Commission invoked s 191A (inserted by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)), which allows the Commission, where it has a BOOT concern, to amend the agreement to address the concern.
The parties are not required to agree to the amendments, and the amendments can be made even if one party explicitly does not, or would not have agreed to put the agreement to vote if it were in those terms.
Understandably, ALDI objected to its bargained flexibility being removed (as it would severely impact current operations and rostering practices), and the agreement being amended largely without input from the parties.
The amendment obliged ALDI to reach individual written agreements with each part-time hourly-rate employee specifying fixed hours per day, days to be worked each week, and actual start and finish times (largely mirroring the Award part-time clause). The bargained flexibility was gone, and the Commission confirmed one thing. Enterprise agreements are “agreements” in name only.
ALDI appealed to a Full Bench ([2026] FWCFB 134). The Full Bench dismissed the appeal. Its reasoning on the central point of statutory construction was unambiguous. Unlike the undertakings regime, s 191A contains no constraint against substantial change.
Once the Commission identifies a BOOT concern and is satisfied an amendment is necessary to address it, the power is enlivened and neither employer nor employees hold a veto. The views of the parties must be sought and considered, but they are not binding.
The practical consequences are significant, and they cut against the stated objectives of the amending legislation and the ability to run a productive business. ALDI’s flexible part-time model benefited both parties: employees secured permanent employment with entitlements, while ALDI avoided the inefficiencies and cost of a largely casual workforce.
The imposed amendment inverts that arrangement, whilst still requiring ALDI to pay the employees the increased rates which no longer compensate for the flexibility.
For employers who need genuine scheduling flexibility, fixed contractual hours under a part-time model are unworkable; the default becomes casual engagement. The Secure Jobs, Better Pay Act was in part directed at reducing casualisation; the Commission’s exercise of the power it creates may achieve the opposite.
For employers, the lessons are straightforward. First, confirmation that BOOT assessments extend beyond pay rates and involve assessment of non-monetary detriments, including rostering uncertainty. Second, once an agreement is filed, s 191A exposure is real: the Commission has shown it will use the power, and the Full Bench has confirmed it can use it broadly.
Finally, if the Commission gives you notice that it is considering a s 191A amendment and seeks your views, there is real risk that the document you bargained for, and lodged with the Commission, will not be the “Agreement” you are operating under for the next four years (at least).
