Aldi appeals Federal Court decision in TWU case

Discount supermarket Aldi is appealing a Federal Court decision handed down last month, in which it believes “a legal technicality” prevented the Transport Workers Union (TWU) from being charged with misleading and deceptive conduct.

On March 6, the court dismissed the charge against the TWU but acknowledged that in some instances the representations made by the union were at least “likely to mislead”. The court also dismissed the claim relating to injurious falsehood.

Aldi said in a statement on Monday that it is appealing the decision on the basis that “the TWU is a trading corporation for the purposes of the Australian Consumer Law”.

“Justice Flick of the Federal Court found that, although the TWU had made misleading and deceptive representations, they were not prevented from doing so due to a legal technicality.  The Court found that the TWU was not covered by the provisions of the Australian Consumer Law because they were not a trading corporation and the comments made were not in trade and commerce,” Aldi said in a statement.

“The terms ‘corporation’ and ‘in trade and commerce’ are in the Australian Consumer Law and are subject to interpretation by the courts.  Aldi is appealing the interpretation of these terms to seek clarity about the rights of the TWU to make untrue statements in pursuit of their objectives.”

A spokesperson for Aldi said the comments made by the TWU were made in trade and commerce and that the TWU sought to involve itself in the management and operation of Aldi’s transport supply chain.

“The comments made by the TWU were not made as part of an industrial campaign to improve wages and conditions of employment for its members, but were also conduct in trade and commerce,” the spokesperson said.

The TWU has made a number of claims toward Aldi, including that its drivers were pushed to drive long hours, skip safety procedures and operate faulty trucks. The supermarket refuted these claims.

The retailer said that comments made about the business “must be truthful and grounded in fact” and that a party that makes untrue comments “should be held accountable for their actions”.

The long-standing legal battle between the two began in August 2017 when the retailer failed to get an injunction to prevent the TWU from protesting and speaking out about Aldi.

TWU national secretary Michael Kaine said Aldi has refused to engage in talks on improving safety in its supply chain since the court’s decision.

“The TWU is highly disappointed that Aldi has refused our offer of talks on the way forward to improve safety in its supply chain and instead is resuming the court case against us in an appeal,” he said in a statement.

“It is utterly astounding that having lost this case in such spectacular fashion that the global retailer remains hell bent on pursuing transport workers and their representatives in an attempt to shut them up. But this won’t work. It is absolutely our duty to call out safety problems when transport workers draw our attention to them. We are still getting a steady stream of drivers approaching us with evidence of blatant contraventions of safety rules.”

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