In a landmark decision1, the Fair Work Commission (FWC) has for the first time exercised its power under s 191A of the Fair Work Act 2009 (Cth) (Act) to unilaterally amend an enterprise agreement at approval — over the employer’s objection — to address Better Off Overall Test (BOOT) concerns. The takeaway from the decision is clear: the Commission can exercise its powers to amend your agreement before approving it – whether you consent or not.
The Limitation of Undertakings
Before a new enterprise agreement is approved, the FWC must be satisfied it passes the BOOT: employees must be better off overall under the agreement than they would be under the relevant award.
Historically, if BOOT concerns arose at the approval stage, the FWC would invite the employer to provide undertakings and the employer could provide them to address the BOOT concerns. But undertakings have a critical limitation: they cannot result in substantial changes to the agreement. This constrained how far an agreement could be modified to secure approval.
Introduction of Section 191A
Section 191A of the Act, introduced by the Secure Jobs, Better Pay reforms, changes the landscape. Where the Commission has a BOOT concern, it can now specify amendments to the agreement that it considers necessary to resolve that concern. The Commission must seek the views of the employer, employees and bargaining representatives, but it is not bound by those views.
The ALDI Decision
ALDI sought approval for enterprise agreements covering its warehouse operations. The Commission identified a BOOT concern: part-time employees faced unpredictable working hours, with no certainty about which days they would work or when their shifts would end. This uncertainty, the Commission found, was a detriment that higher pay rates did not adequately compensate.
ALDI resisted amendments, arguing that section 191A should be read narrowly — that the Commission could not impose changes the parties had not agreed to, and certainly not changes that would fundamentally alter the agreement. The Commission rejected this. It held that unlike undertakings, section 191A is not constrained by any requirement to avoid substantial change. If an amendment is necessary to address a BOOT concern, the Commission can impose it.
The outcome: the agreements were approved, but with amendments requiring ALDI to agree with each part-time employee on fixed working hours, days, and start and finish times. A significant operational change — imposed over the employer’s objection.
What This Means for Employers
This decision is a turning point. It demonstrates that leaving BOOT compliance to be resolved at the approval stage may no longer be a viable strategy and not one that EMA Consulting would recommend. If the Commission identifies a concern, it has the power and has demonstrated the willingness to intervene — and the result may not align with your operational needs.
The answer is to address and manage potential BOOT issues at the planning stage as well as throughout the bargaining process. This means understanding how your proposed terms compare to the award, identifying potential risks early, and addressing them in a way that works for your business — before the agreement goes to a vote.
This is where experienced representation and advice make a difference. The right adviser can help you navigate BOOT issues strategically during negotiations, ensuring you reach an agreement that meets your objectives and will withstand Commission scrutiny. An advisor who is appointed as an employer bargaining representative can also act on your behalf with the Commission at approval without needing separate permission – which is beneficial considering the risk that the Commission may not approve representation at this stage.
The Bottom Line
Section 191A has shifted the balance. The Commission’s power to amend agreements at approval is broader than many anticipated, and the ALDI decision confirms it will use that power when necessary.
The right support can make the difference between an outcome you’ve shaped and one that’s been reshaped for you.
Require further information/assistance?
If you require experienced, strategic advice and representation during your enterprise agreement negotiations, please contact us.
This EMA Note is not comprehensive advice about your situation and does not cover all your obligations. If you require further information or advice, please contact your Consultant.
- Application by Aldi Foods Pty Limited As General Partner Of Aldi Stores (A Limited Partnership) Trading AS Aldi Stores [2026] FWC 2 (2 January 2026) ↩︎
