Worker takes the BOOT to Coles and wins Fair Work appeal

Brisbane-based Coles employee Duncan Hart has won an industrial battle against the supermarket giant and retail union the Shop Distributive and Allied Employees Association (SDA).

Mr Hart and The Australasian Meat Industry Employees Union (AMIEU) appealed the decision of the Fair Work Commission (FWC) in July 2015 to approve the Coles Store Team Enterprise Agreement 2014-17 (the agreement).

The agreement, which was negotiated by the SDA with Coles, provides employees a higher hourly rate than the relevant award rate, but applies lower penalty payments for evenings, weekends and public holidays.

Section 193(1) of the Fair Work Act (2009) provides that to replace an award, enterprise agreements must satisfy a Better Off Overall Test (BOOT). To pass the BOOT the Commission must be satisfied, at the test time, that each award covered employee, and each prospective award covered employee, would ‘be better off’ the agreement covered the employee than if the relevant modern award covered the employee.

Following the appeal hearings, the Full Bench of the FWC ruled on this week that the agreement fails the BOOT.

The FWC has now given Coles until June 10, 2016 to indicate if it will provide an undertaking to remedy the failings in the agreement or the FWC will make an order quashing the agreement.

A Coles spokesperson told C&I Week: “Coles has constructively engaged in the Fair Work Commission’s process and will respond to the decision in due course.

“Over the past 12 years, Coles’ workplace agreements have consistently delivered wage rises ahead of inflation, at the same time as we have lowered prices for our customers.

“Coles’ current agreement was approved by the Fair Work Commission in 2015. It delivered an average increase of 3 per cent in base rates, maintained penalty rates from the previous agreement and brought six complex agreements into a simple, easy to understand document.”

Tip of the iceberg
David Bates, director of Workforce Guardian, told C&I Week, he suspects the ruling by the Commission is “the tip of the iceberg”.

“The Fair Work Commission’s decision to set aside the previous approval of this Enterprise Agreement confirms three things. First, Many unions long ago gave up caring about their members’ best interests and instead focused on cozy deals with large employers to guarantee their revenue streams. In this case, a single employee took on the combined might of both Coles and the SDA (one of the most powerful unions) and proved beyond doubt that many Coles employees were left financially worse-off by the union-negotiated agreement.

“Secondly, the Fair Work Commission’s Enterprise Agreement approval process is completely dysfunctional. The record shows that agreements negotiated with union involvement are often allowed to sail through the approval process, while those negotiated without union involvement are regularly subjected to much greater scrutiny. This, sadly, is the logical consequence of former trade union officials with little if any legal qualification being appointed to the Commission for the duration of their working lives.

“And finally, many large employers will be scrambling today to confirm whether their agreements are similarly vulnerable to challenge by their part-time or casual employees.”

ABC News reports that in the aftermath of the FWC ruling a part-time Woolworths employee and union delegate has slammed the SDA for doing deals with big business.

According to ABC News, part time worker at a Melbourne Woolworths store and SDA delegate, Michael Johnstone, has accused the SDA of failing to provide its members with enough information about the current wage deal the union is negotiating with Woolworths, and the previous deal signed in 2012.

Mr Johnstone said he had calculated that the majority of workers at his store were worse off under the current workplace agreement between the SDA and Woolworths than they would be under the award.