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Aldi fails to have $150m underpayment class action thrown out
Supermarket giant Aldi was accused of forcing the Federal Court to hear a “mini-trial” as part of its unsuccessful attempt to have a $150 million underpayment class action thrown out.
Naomi Neilson
The Shop Distributive and Allied Employees Association (SDA) and its lead applicants have accused Aldi of deliberately underpaying its employees over six years by requiring them to work for up to 30 minutes before their shift without remuneration.
On Friday (9 February), Justice Shaun McElwaine said Aldi’s summary judgment application was “not a suitable vehicle for the resolution of conflicts”, especially as there are “directly contrasting issues” that would need to be resolved forensically.
“It seems to me that what has been formulated before me is a mini-trial. This is not a suitable vehicle for the resolution for the conflicts on evidence and, for those reasons, the application for summary judgment is dismissed,” Justice McElwaine determined.
Justice McElwaine added it was “unusual” for a summary judgment application to rely on so much evidentiary material.
Aldi was told a summary judgment application would not be suitable if there were contested questions of fact, but counsel Garry Hatcher pressed on with an argument the class action had “no utility”.
In submissions, Mr Hatcher explained that Aldi’s system paid employees the additional 10 minutes after their rostered finish time, but any period beyond that would have to be approved by a manager.
Mr Hatcher said the only circumstances in which an employee would not be paid for time beyond the 10 minutes was either a failure to “clock on” to the shift or they “did clock on, did some work, and it wasn’t authorised” by the managers afterwards.
“The amount of those employees falling into those categories would be remarkably small and not sufficient to justify the court’s time.
“Whatever issue of fact as to payment is outstanding is de minimis and not sufficient to warrant the proceedings continuing,” he said.
Mr Hatcher also added the “money had been paid”, alluding to the company’s decision to backpay shift workers in an announcement it made the same day SDA filed the class action.
Counsel for SDA, Mark Irving, said the notion the employees were paid in full for their work “falls” and pointed to affidavits from the applicants, which disputed Aldi’s payment argument.
Justice McElwaine accepted there were contestable questions of fact that would “require resolution in the ordinary course”.
The parties will meet in March to determine what has been paid, with the hopes of narrowing the pleadings.
If not, Mr Irving said the plan is to identify a set of issues prior to the next appearance.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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