Aldi loses court battle against union marketing campaign

German discount supermarket chain Aldi has lost a lengthy legal battle against the Transport Worker’s Union over a marketing campaign that focused on the safety and wages of truck drivers transporting groceries.

Aldi said the union’s various pickets, leaflets and press releases were misleading or deceptive, and caused injurious falsehood, a defamation-like claim available to companies.

One flyer read “Multi national corporations at the top of the supply chain, like Aldi, put pressure onto trucking companies and owner drivers to fulfil unsafe deadlines”.

A media release stated that “[Aldi is] refusing to accept that this pressure is leading to horrific deaths and injuries on our roads” and that “[t]ransport workers in Aldi’s supply chain are constantly faced with pressure from above, leading to trucks not being maintained, drivers forced to speed, drive long hours and skip mandatory rest breaks … Aldi last year attempted to pay truck drivers less than their already woefully low rate by misclassifying them in an Enterprise Agreement which, fortunately, the Federal Court struck down”.

Another spoke of a protest which “demanded that Aldi end the financial squeeze on transport companies and truck drivers, which is leading to deaths on our roads”.

A flyer distributed in stores and at protests said that, “Every year hundreds of people die on our roads in truck related accidents. This is caused by big companies – like Aldi – cutting costs in their contracts. This squeeze is sweating drivers forcing us to work longer and harder with little chance to take a break or do maintenance.”

One of the TWU flyers [Click to enlarge]

However, the Federal Court’s Justice Flick dismissed Aldi’s case, which was lodged in 2017 and finally ended on Friday. The union could not have been misleading or deceptive under the Australian Consumer Law because it is not a trading corporation, so the marketing messages were not made in trade or commerce. Rather, the union is an employee organisation which uses membership fees to reinvest in “political worker campaigns and other initiatives”.

Justice Flick did note in his judgment that, if this weren’t the case and the union was a trading corporation, its statements were at least “likely to mislead or deceive”.

“The most extreme of the statements made, or those which were the most prejudicial to the interests of Aldi, were those that sought to implicate Aldi in road fatalities involving truck drivers,” Justice Flick said.

“The association of Aldi with the statement that ‘hundreds of people die on our roads in truck related accidents’ is either misleading or deceptive or – at the very least – ‘likely to mislead or deceive’.”

In another example, a union official participated in a Today Show interview on Nine in which he said that “we have trucks out there and drivers that are literally time bombs waiting to go off because of the pressure from Aldi” and “Aldi is refusing whilst they are seeing people being slaughtered in our industry and they are doing nothing about it”.

“The cheap groceries would not be possible without Aldi’s low-cost wages… It is the hidden shame of the supermarket wars that truck drivers down Aldi’s supply chain are forced to neglect vehicle maintenance, drive longer than recommended hours, break speed and other road rules and skip mandatory meal breaks… just to make ends meet,” the official told the Today Show’s Deborah Knight.

But, “there was no evidence of any Aldi truck being a ‘time bomb’. And it was simply wrong – and ‘likely to mislead’ – for Mr Sheldon to state that Aldi is ‘doing nothing about it’,” Justice Flick said.

The judge did recognise that the union’s concerns “as to public safety were real”. Aldi did prioritise cutting costs. It did not check whether it was paying transport operators enough to ensure the transportation was undertaken safely. And that pressure put on drivers did “inevitably, but regrettably, occasioned contraventions by drivers of safety standards”.

Aldi did, however, monitor, record and act on these contraventions, which the union did not acknowledge, Justice Flick added.

The supermarket’s allegation of injurious falsehood, meanwhile, fell over because the union did not make the statements with malice and Aldi did not experience any loss or damage from the statements.

Aldi said that despite the loss due to a “legal technicality”, it feels “vindicated”. The court case was never about stifling the union or its workers, but about ensuring the TWU tells the truth, the supermarket added.

“We feel vindicated with today’s judgement [sic], as it has clearly been stated by the court that the TWU’s conduct has been misleading and deceptive,” a spokesperson said on Friday.

“The judgement [sic] determined that this legal action was justified in protecting ALDI’s commercial interests and was never about silencing Australian workers. All ALDI employees and the employees of our business partners have the right to freely join unions. 

“We have not, and will not, work to silence the voice of Australia’s union movement. We simply demand that they tell the truth. It is disappointing that a legal technicality appears to allow the TWU to peddle lies and mistruths with impunity.”


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