The SDA and TWU lodged an appeal with the Fair Labour Commission and applied DP Bull`s approval decision. In particular, the unions argued that the agreement should have been entered into in the form of a “Greenfields Agreement” in accordance with S 172(b) (b) of the Fair Work Act 2009 (FW Act) because ALDI created a new business and did not employ any of the persons necessary for the normal conduct of the company. They also argued that the agreement did not pass the Better Off Overall Test (BOOT) within the meaning of s 186 (2) (d) of the FW Act. The High Court indicated that it was not appropriate for ALDI to have been able to enter into an agreement with Greenfields on the operation of Regency Park. The agreement was concluded in the form of a non-green agreement, as permitted by the FW Act. The Tribunal found that Aldi had not been able to demonstrate an error of jurisdiction and refused to declare its communications for other Aldi agreements in Queensland, Western Australia and South Australia compliant. If a job has a registered contract, the premium does not apply. However, the Transport Workers Union of Australia (TWU) and the Shop, Distributive and Allied Employees Association (SDA) have appealed the approval of the Aldi agreement. They argued that Aldi`s agreement should have been entered into in the form of a “Greenfields agreement” given that the Regency Park area had not been established and Aldi did not employ any staff members necessary for the normal behaviour of the company. It was also argued that the Aldi agreement had failed the best overall test (BOOT). Full Bench rejected both arguments and dismissed the complaint. The SDA has asked the Federal Court of Justice to conduct a judicial review. An agreement that is not a Greenfields agreement is reached after approval by staff who are subject to the agreement.

The SDA then asked the Bundesgerichtshof for a judicial review of the decisions of Bull DP and Full Bench. The majority of the Federal Court of Justice allowed the SDA`s appeal and found that the seventeen employees would not be “covered by the agreement” to find that the agreement had in fact been concluded under the act of S 186, paragraph 2, point a), of the law, since no worker could be “covered by the agreement” until their activity. The Court also found that the Full Bank of the Fair Work Commission had not properly compared the agreement with the corresponding modern arbitration award in order to properly assess whether the agreement had been reached with the BOOT. Registered contracts apply until they are terminated or replaced. “There are two other Aldi demands for the non-union Jandakot and Regency Park agreements before the FWC, which are also affected by a flawed denunciation of workers` representation rights.” The court ruled that individuals who are covered by the agreement only at some point in the future are not “covered by the agreement” when they approve it, as required by the Fair Work Act 2009 (Cth).