sda NATIONAL fflE UHIOH FOR WORKDlS IIN RErAI FASrRJlllWAREHOUSHli.
Shop Distributive and Allied Employees' Association
SUBMISSION IN REPLY -Adverse Comment
SDA Submission in reply to Senate Inquiry into Unlawful Underpayment of Employee’s Remuneration
Date Submitted: 1 June 2020
Submitted by: Gerard Dwyer National Secretary SDA National Office Level6 53 Queen Street MELBOURNE VIC 3000
Telephone: (03) 8611 7000
Email: general@sda org au
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SDA Submission in Reply – Adverse Comment
1 June 2020
The Shop, Distributive and Allied Employees’ Association (SDA) acknowledges, and is grateful for, the invitation of the Committee Secretariat to write a response to the submission which has been made by the self-styled Retail and Fast Food Workers Union Inc. (RAFFWUI).
RAFFWUI continue to level significant and unfounded criticism at the SDA and its submission demonstrates nothing but an unwavering commitment to damage the standing of the SDA, and subsequently the Fair Work Commission and the construct of Enterprise Bargaining in this country.
The RAFFWUI submission levels criticism of the SDA, employers, and inferentially, the Fair Work Commission for being involved in the negotiation of industrial agreements which RAFFWUI contends ought not to have been approved.
Throughout RAFFWUI makes repeated defamatory imputations against both the SDA and named industrial Officers.
To the extent that the RAFFWUI Submissions devote themselves to challenging the legitimacy of past and current industrial agreements approved by the Fair Work Commission (and its regulatory antecedents) and which were or are in consequence quasi-statutory instruments compliance with which raises no question of unlawful non-payment or underpayment, the Committee may consider that RAFFWUI’s Submissions fall outside the stated Terms of Reference of the presently constituted Committee.
To the extent that the Committee is resolved to receive RAFFWUI’s submissions, the SDA would make the following comments in reply.
RAFFWUI - A Political Organisation Not a Trade Union
1. It is noted that in paragraph one of their submission RAFFWUI falsely asserts that it is a trade union, something that has become common practice by RAFFWUI from this submission to its public commentary. The Senate Committee should be aware that the Fair Work Commission (FWC) has called RAFFWUI to account on several occasions in this regard. The following extract from AG2019/4042 (KFC National Enterprise Agreement 2020, DP Cross, Decision 22 April 2020) is consistent with other FWC rulings on this point:
“[15] RAFFWUI is clearly not an employee organization as defined by the Act, and its attempt to equate it’s position to that of the SDA, contained at paragraph 12 of their submission …….., is baseless and contrary to the entire scheme of the Act and the Fair Work (Registered Organisations Act) 2009.
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[16] The provisions of the Fair Work (Registered Organisations Act) 2009 impose significant obligations upon all registered organisations, and employee organisations in particular, regarding such issues as their Rules, the keeping of accounts and the filing of relevant documentation with the Commission. Failure to comply with these obligations can have serious consequences, including significant pecuniary penalties. RAFFWUI is not subject to any such obligations, and its attempt to equate itself with a registered organization by the use of the term “union” in its name is misleading.
2. RAFFWUI is not an organisation of employees registered under Fair Work (Registered Organisations) Act 2009 - it is an incorporated association incorporated pursuant to the provisions of the (Vic) Associations Incorporations (Reform) Act 2012.
3. Its finances and (alleged) membership are accordingly not subject to the same scrutiny and audit as a registered organisation of employees. Its sources of funding are unknown. Whether and to what extent the whole of its alleged membership is financial at any point in time or even employed in the retail and fast food industry is unknown and not subject to checking or verification by any regulatory authority. It is public knowledge that it originally solicited crowd-funding for its operations. It is unknown whether it still does so and, if it still solicits or receives private donations, who its principal benefactors are and what agreements or understandings exist in exchange for such undisclosed support.
4. RAFFWUI continuing to assert that it is a union causes significant confusion within workplaces. Workers are left with the view RAFFWUI as a union and are governed with appropriate oversight mechanisms. RAFFWUI continuing to assert that it is a union is outright deceptive, boardering on malicious, and does nothing but seek to misrepresent facts to the members they proport to represent.
5. Australia has long had a system, supported by all sides of politics, of democratically controlled, registered, industry unions. Any legitimisation of this or other rogue organisations fundamentally undermines this construct.
Interests Of Retail and Fast Food Workers Secondary To Attacking SDA
6. Given its operation outside Australia’s federal industrial system and that it transacts all aspects of its operations without the same transparency that attaches to registered organisations, the Committee is entitled to, and should, give little weight to its self- promoting assertions as to its influence in the retail and fast food industry and its so- called achievements. RAFFWUI exists primarily to attack the SDA, not to promote the interests of retail and fast food workers. This is apparent in almost daily examples but two are particularly instructive. Both demonstrate RAFFWUI acting in a way contrary to the interests of the persons on whose behalf it was purporting to act.
a. The following is an extract from The Fair Work Commission Full Bench Decision in C2019/596 (The Woolworths EBA Case) – [also see Appendices attached]. RAFFWUI was a Bargaining Agent in this matter:
“[46] The RFFWUI, against the interests of the employees whom it purports to represent, seeks that clause 5.2 be given a narrow construction so that it is read as not applying to preferred dress in order to endeavor to establish that there was a misrepresentation on the part of Woolworths. Such a construction would, for employees wearing preferred dress, deprive them of the benefit of the allowance, which amounts to $6.25 per week for full-time employees and
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$1.25 per shift for part-time and casual employees. We see no reason to grant permission to appeal to allow the RFFWUI to argue that employees should not receive a monetary benefit which Woolworths is willing to pay, merely to aid the RFFWUI’s bid to overturn the whole agreement.
[47] The RFFWUI’s contentions in respect of this issue have an ersatz quality and are entirely lacking in substantive merit”.
b. Federal Circuit Court Matter MLG1193/2017, Camden Group Pty Ltd (Trading as Bakers Delight). This dealt with an underpayment claim initiated by RAFFWUI which the SDA became aware of when the Federal Circuit Court ordered that the SDA be joined to the matter as a contradictor for the benefit of the employee claimants. Bakers delight is an operation which was constitutionally covered by the United Voice union not the SDA. Having initiated an underpayment claim on behalf of employees RAFFWUI then vacated proceedings. Without the prospect of embarrassing the SDA, RAFFWUI just departed and left the said employees without representation in the proceedings.
7. RAFFWUI has never constructively sought to engage in genuine collective bargaining with employers. Whilst bargained outcomes might be to the advantage of retail or fast food workers in a company, and overwhelmingly endorsed by the given workforce in an EBA ballot (eg KFC 95.46% Yes vote) RAFFWUI will then proceed to oppose the approval of the Agreement before the FWC. Whilst RAFFWUI has not been successful in having any EBA rejected by the FWC, their actions invariably delay approval and in doing so delay employees being able to access the benefits of a new EBA. Such conduct is not in the interests of the employees it purports to represent.
8. It alleges to the Committee improper motive or purpose in terms of the SDA’s negotiation of industrial agreement linked to, for example, securing agreement from the employer for payroll deductions of membership dues. The allegation is baseless and providing payroll deductions of union dues is unremarkable in Australia’s industrial landscape. It is a facility that is particularly valued by casual employees who are able to access full membership rights but only have to pay dues in a week where they receive shifts.
9. RAFFWUI has previously made, and here makes, bald assertions (again, with respect, on their face arguably outside the terms of reference of the Senate Committee) as to the extent to which employees have been underpaid by the terms of negotiated agreements that supplant parent Awards without anywhere acknowledging that the majority of employees unquestionably secure better financial outcomes than would be the case under the applicable Award and where the employer has on occasion objectively demonstrated that its global payroll under the terms of operative industrial agreements is higher than would be the case were the same cohort to be employed under the terms of the parent Award.
10. The SDA stands by its bargaining achievements over the past 25 years and refers the Committee to the SDA’s Submission to the ‘Senate Inquiry Into Penalty Rates In The Retail, Hospitality and Fast Food Sectors’ (18 July 2017). This 2017 submission is attached as an Appendix to this submission and provides a context to bargaining in service sector industries during 25 years of relentless political attack on employee wages and conditions. The SDA’s bargaining agenda during those 25 years not only
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protected our members but increased base rates of pay as well as securing a number of significant employee benefits. The following is a list of entitlements that were typical in SDA loaded rate Agreements: Table 1
NES/Award entitlement Typical SDA Agreement entitlement Minimum part-time hours 3-hour shift per week 10 hours per week and minimum daily shift 3 hours Work on public holidays May be required to work if Voluntary "reasonably requested" Public holidays falling on No entitlement to Public Holidays Full-time employees non-working days and eligible part-time employees entitled to additional paid day Christmas Eve and New No entitlement unless legislated as Voluntary work after Year's Eve Work a public holiday 6pm or 7pm Easter Sunday No entitlement unless Voluntary work legislated as a public holiday Redundancy Employee with more than 10 Higher standard years' service- 12 weeks' pay up to 20 weeks
No reduction in amount after 10 years' service NES/Award Entitlement Typical SDA Agreement entitlement. Compassionate Leave 2 paid days for the 5 paid days for relatives/household parents, partner, children 3 paid days for other NES relatives 1 paid day for close friend/other relative not in NES Junior Rates 90% or 100% for 20 yr old's 100% for all 20 yr old's Annual leave Nil Timing with Partners consideration Leave considered Domestic Violence Leave Nil (* Union test case in FWC Recognition of issue, awarded access to personal leave, use of July 2017). Personal leave, unpaid leave or extra paid leave Permanency of Nil Full time and Part time employment work promoted over casual work Accident Pay No entitlement in Victoria 39 weeks available in Victoria
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Long Service Leave Double leave at half pay only in a Double Leave at half few States/Territories pay across Australia Safe Transport home Nil If overtime worked Safe transport home to be provided/ensured Escorts to car for after dark Nil Employees can be finish escorted to cars or move cars closer after dark. Rostering consideration Nil Rostering needs to consider family responsibilities, study responsibilities, safe transport home Limited Tenure Allows employee to fall outside Ensure employee rights under Act Promotes insecure remains under the Act. work Protections given with maximum length 1 yr, no back to back contracts, 1 month minimum Additional leave Unpaid community leave Paid Natural entitlements Disaster leave Paid Blood Donor leave Paid Emergency Services Leave Paid Defence Forces Leave
11. As well as prosecuting a bargaining agenda that delivered for our members from the first wave of Kennett IR Reforms (Victoria, 1992) through to a post WorkChoices environment, the SDA was tireless during this period in establishing and defending Penalty Rates. The following table (Table 2) sets out the relentless attack on penalty rates in multiple jurisdictions since the 1980’s and at every turn the SDA was there defending the interests of our members.
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Table 2
Year Retail or Sunday Saturday State/ Governing Fast Territory Party Food 1980's - \RC replaced Overtime Sat NSW ALP afternoon with 125%. ALP Govt by Regulation sets 150% 1988 - New Govt cut 150% Sat NSW LNP afternoon to 125% 1991 - VIC \RC cut 150% to 125% VIC ALP (phased in) 1992 12 Trading - VIC ALP Sundays introduced. SDA had to defend 200% in VIC \RC
1992 Retail Awards (& Awards (& therefore penalty VIC LNP and Fast therefore penalty rates) abolished Food rates) abolished
1993 Retail West Australian West Australian Workplace WA LNP and Fast Workplace Agreements used to Food Agreements used remove penalty rates to remove penalty rates 1994 Retail 200% Sundav rate VIC/FED LNP 1996 Retail Ability to contract Ability to contract out of Fed LNP and Fast out of Award Award system. Food system. Part time award protections Part time award removed protections removed 2003 Retail 200% Sunday Rate VIC/FED ALP/LNP for 17,000 Roped- In Employers won bv SDA 2005, Retail Work Choices - Work Choices -AWA's Fed LNP Dec and Fast AWA's used to used to remove penalty Food remove penalty rates rates. Awards to be replaced with Awards to be 5 minimum standards replaced with 5 minimum standards
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2008 Retail SDA begins case to set Fed ALP Sunday at 200% in Mod Awards
2008 Fast Food SDA begins case to set Fed ALP Sunday at 200% in Mod Awards Employers seek 0% or 150%
2008 Dec Retail Modern Award Fed ALP Sets 200% for Sunday
2008 Dec Fast Food Modern Award Fed ALP Sets 175% for Sunday
2009 Fast Food Employers apply to cut the Fed ALP 175% rate which is to be phased into the Modern Award from Jan 2010
2010, Jan Fast Food Employers win cut from Fed ALP 175% to 150%. This to transition into effect by July 2014 2012 - Retail SDA successfully defends Fed ALP 2013 200% Sunday against employers seeking to reduce the rate to 0% or 150%.
2012-2013 Fast Food SDA successfully defends Fed ALP 150% Sunday against employers seeking 0%.
2014 Retail Sunday rate reaches - Fed LNP everywhere 200% 1/7/14
2014 Fast Food Sunday rate reaches - Fed LNP everywhere 150% 1/7/14
2014 Retail Employer case to Fed LNP cut 200% begins 2014 Fast Employer case to Fed LNP Food cut 150% begins 2017, Feb Retail 200% cut to 150% - Fed LNP phased in until July 2020 2017, Feb Fast 150% cut to 125% - Fed LNP Food phased in
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12. The Fair Work Commission’s previous assessment as to whether or not loaded rates agreements passed the BOOT may be taken to have involved consideration of other factors that nonetheless permitted the conclusion that all employees, including any minority cohort of workers, were nonetheless better off overall. Such a conclusion turned upon the Fair Work Commission’s assessment of a range of other identified benefits and advantages, some financial in nature, some not; some contingent, some not. Again, see Table 1 above for a range of benefits that were able to be negotiated into SDA loaded rate Agreements.
13. Ultimately, of course, the decision to approve or not approve (ie whether or not the BOOT is passed) is reserved to the Fair Work Commission. To the extent that RAFFWUI is asserting that agreements supported by the SDA were approved by the Fair Work Commission which they allege should have failed the BOOT, it is not clear whether RAFFWUI is asserting that the Fair Work Commission was party to the same grand conspiracy that it accuses the SDA and the applicant employer of being party to, or whether its position is that the FWC was merely grossly negligent in the discharge of its duties. Either contention would be defamatory, and the Committee should not give weight to the slur.
14. It would be true to say that more recent consideration of these matters by the Fair Work Commission has placed a greater emphasis upon some financial benefits as a core constituent element of its assessment of the BOOT and the consequence of it doing so has effectively been that loaded rates proposals as a collective bargaining initiative in the retail and fast food industries have effectively ceased. This is because the assessment of the BOOT adopted in the Coles decision (2016) puts other financial benefits (eg increased superannuation entitlements, increased paid leave entitlements etc) as well as valued non-monetary benefits outside the BOOT assessment.
15. The repeated assertion by RAFFWUI that earlier approved agreements knowingly reflected a prejudicial position in which the SDA, the employer and apparently the Fair Work Commission colluded, to the demonstrated prejudice of the employees (who in many cases approved such agreements by 90% or more voting in favour) ought not be accepted. At the time, loaded rates were accepted as validly negotiated trade offs for a raft of other benefits, some financial and some non-financial which left employees better off and the Fair Work Commission so found.
16. The SDA rejects RAFFWUI assertions that SDA EBA’s would “enable [employers] to pay less than the minimum wages and conditions otherwise applicable to staff” (point 9, RAFFWUI submission). The SDA will not, and the Committee should not, accept asserted figures from an organisation that has previously:
a. Pressed that the lawful retail Sunday penalty rate was 300% (the lawful Sunday penalty rate in various retail Awards over the past 25 years has been 150% or 200%) b. Compared the McDonalds EBA L2 Crew member classification with the L2 Supervisory rate in the Fast Food Industry Award. This compared ‘apples’ with ‘oranges’ to deliberately mislead c. Disregarded the higher loaded rates payable by employers when it launches its allegations of collusion and underpayment.
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Real World Cost Benefit Analysis
17. The Committee can cut through competing assertions of payroll costs or savings by reference to conduct in the real world. The real value of SDA Agreements was subjected to an objective commercial assessment in 2015 with the SDA South Australia Small Retailers EBA. This was a template EBA negotiated by the SDA with Business SA and any employer wishing to access the Template did NOT have to engage with the SDA.
The purpose of this EBA was to provide an off-the -shelf template which smaller retailers could access through Business SA, in the knowledge it would pass the BOOT. No engagement with the SDA was necessary.
The template was very similar to the framework of SDA retail EBA’s at the time and as such is instructive as to the real value of SDA EBA’s. It contained a 50% penalty rate on Sundays, a higher base rate of pay (a loaded rate) and enhanced rostering provisions. The template agreement received wide publicity and was hailed by some media outlets as an "historic workplace deal"(The Australian, 24 May 2015).
However, several months later it was revealed in the media that the template agreement had not been taken up by any small business in South Australia. It was reported that approximately 12 businesses had undertaken an assessment of the template EBA but all had walked away.
Master Grocers CEO Jos de Bruin was reported at the time saying of the Template EBA "It should [at least] represent the same cost but it doesn't, it's actually more expensive [than the Award]". Another comment was that “it increases labour costs and reduces flexibility”
This template and the many EBAs with smaller retailers demonstrate that the SDA is prepared to make any agreement that is good for employees and passes the relevant minimum standards set by legislation. Small businesses have had the opportunity to make enterprise agreements similar to those made with large retailers but often have not taken the opportunity and invariably cite the higher costs associated with the framework of SDA retail agreements.
18. As to the specific defamatory allegation that the SDA and/or its Officers have effectively conspired with employers to support the approval of industrial agreements that knowingly failed the BOOT for some members of the employee cohort, allegedly in exchange for some advantage or preferential treatment for the Union, the allegation is simply false. So is the allegation that the SDA tailors its position in relation to applications for approval of agreements depending on whether a particular position favours a particular employer. The SDA determines whether it supports the approval by the Commission depending on whether it considers that those Agreements pass the BOOT and where its affected membership inform the SDA that they support or they oppose the making of the agreement. To the contrary, as noted above, it is RAFFWUI that tailors its response to applications for approval contingent upon external factors. It opposes agreements overwhelmingly endorsed by employees and which the SDA supports for approval. RAFFWUI’s arguments have invariably failed but it runs them to advance a political agenda unrelated to any underlying interests of the affected employees.
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A Real Union Agenda
19. Whilst a fake union like RAFFWUI plays a political attack game against the SDA, the SDA as the registered organisation for retail and fast food workers is getting on with advancing the interests of its members.
To this end the SDA is currently undertaking the following:
• Assisting in prosecuting the political case for a ‘small claims jurisdiction’ and the restoration of union rights to payroll spotchecks and audits to facilitate the enforcement of legal minimum rates.
• Won new and higher penalties for casual shop assistants working after 6 pm and on Saturdays (Sept 2018). The increases will be in 5% increments until 1 March 2021.
• Defended Penalty Rates for Hairdressers -decision in favour of the SDA’s case December 2019;
• Continued the fight against wage theft with several hundred Subway employees registering for assistance on the SDA ‘Subpay’ website. These claims are progressing.
• ‘Industry Wide Salaried Employees Underpayment Audit’ launched by the SDA in November 2019. Whilst recovering underpayments has always been core SDA business the industry-wide audit is a huge project being undertaken by the SDA in the largely non-unionised cohort of salaried employees. This project continues across a range of employers.
and the project continues across a range of large and mid-sized retail operations.
• Currently the SDA is Arguing for Junior Rates not to apply to supervisory classifications in the General Retail Industry Award (GRIA) – case ongoing
• Continuing to prosecute the case for Public Holiday status for Easter Sunday and the additional days when Christmas and New Year fall on a weekend. Our results in this area have been outstanding. (Easter Sunday is now a declared public Holiday in 4 jurisdictions).
• Secured further Public Holiday entitlements in various States (QLD & VIC). The SDA has led the campaign for Public Holiday equity in 7 day-week industries.
• After securing Woolworths paid Parental Leave enhancements (1 August 2018) we have secured these in Bunnings and Officeworks. Significant improvements include -: Superannuation paid on all parental leave up to 52, weeks which includes the Government paid leave; the Company paid leave; and also any unpaid leave component.
• Pressing the Federal Government and the Opposition for better protections for exploited workers (particularly student visa workers);
• Participated in various forums aimed at addressing Modern slavery.
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• Challenging emerging inferior rates of pay in the so-called ‘new’ or ‘gig’ economy;
• Advocating for a more equitable progressive taxation system (see major SDA submissions to Government in 2006, 2009 and 2015. This is consistent with the SDA campaigns against the GST in 1984, 1997/98 and 2015);
• Supporting and contributing to the Inclusive Prosperity project (Chifley – “Inequality: The Facts and the Future”);
• Sponsoring research on ‘equality of opportunity’ for all Australians (McKell – “Choosing Opportunity”);
• Contributing to the Future of Work Debate (see SDA Submission to Senate Committee January 2018); In July 2019, the Union signed off on partnering with Sydney University on a research project proposal titled “Designing Gender Equality into the Future of Work”.
• Advocating for the re-introduction of tripartite training boards where Government, employers and unions work to develop vigorous and relevant training qualifications.
• Advocating for TAFE to be a pillar in the delivering of life-long learning in the changing world of work. This will require the restoration of funding.
• Seeking superannuation and wage equity for women; (See extensive list of SDA recommendations on Gender Equality);
• Continuing to promote youth issues including wage theft and junior rates (National Youth Commission Inquiry 2018-2019);
• Advocating community respect for retail & fast food workers through our ‘No One Deserves a Serve’ (NODAS) campaign. This has been incredibly successful and is on-going. The Fast Food video (Dec 2018) was also very well received. On Monday 14 October 2019 we launched the Retail & Fast Food Industry Statement on Abusive & Violent Customer Behaviour.
• On 22 March 2020 launched a joint call on Government for a “Retail Industry Rescue Package” in conjunction with the Australian Retailers Association. The key elements of this package were a call on Government to provide a broad- based wage subsidy; lines of credit and rent relief for retail businesses adversely impacted by the COVID-19 pandemic,
• Since the onset of the pandemic the SDA has been at the forefront of the safety debate in the retail and fast food industries. The SDA has launched “10 Point Health and Safety Plans” for Retail, Fast Food and Shopping Centres. These SDA Plans have been lauded by members, industry bodies and health officials. The ‘SDA 10 Point Safety Plan’ for Retail is attached as an Appendix to this submission.
• The SDA has called on those segments of retail that were deemed ‘essential’ to provide an “Essential Services Payment”. To date Costco, Coles and the Woolworths brands have either paid or have committed to paying a recognition payment to their staff for their tireless efforts during the height of the pandemic.
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• The SDA also remains committed to ongoing instore presence and representation of our members interest. The SDA stands with our membership day in day out. Our commitment to them is not limited to a tweet or a media line. Our officials work hand in hand with our membership fighting for improvements to their pay and conditions.
20. As the real representatives of working people in our industries the SDA has a proud history of:
• Improving wages through bargaining and our Awards;
• Achieving wage rate parity with retail for fast food workers;
• Achieving higher Modern Award penalty rates for fast food and retail workers (see Sept 2018 decision);
• Protecting Hair & Beauty Award employees from penalty rate cuts in the FWC (decision of December 2019).
• Improving junior rates of pay;
• Improving Public Holidays rights and entitlements (on-going);
• Protecting members from the impact of ideologically harsh I.R. laws over the past 25 years;
• Promoting economic justice for women in wages, superannuation and paid parental leave;
• Providing first class industrial representation through our network of trained Delegates and committed Officials;
In conclusion:
21. RAFFWUI is not a registered organisation of employees – it is not a trade union. It operates outside the federal constitutional system of industrial relations. It speaks with no authority or legitimacy and pursues a political agenda which is not concerned with the interests of retail and fast food workers. It certainly does not speak for the more than 200,000 members of the SDA.
22. The Senate Committee’s Terms of Reference invite submissions in relation to unlawful underpayment of employees’ remuneration. The self-serving and agenda driven submission from RAFFWUI addresses a different issue, namely the approval by the Fair Work Commission of enterprise agreements which RAFFWUI asserts should not have been approved. Again, I refer the Committee to the SDA South Australia/Business SA Template Agreement at point 15 above which objectively confirmed the real value of SDA EBA’s. In any event, compliance by an employer with the operative terms of an approved agreement involves a lawful payment of employee remuneration. In its blinkered pursuit of the SDA, the RAFFWUI’s scandalous and defamatory submission also attacks the competence (or perhaps make even more serious allegation) of the Fair Work Commission. The Committee should resist accepting such a submission.
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23. RAFFWUI’s submission should in any event be given no operative force or weight or acknowledgement. There are existing statutory pathways by which persons aggrieved by decisions of the Fair Work Commission can seek to exercise of rights of appeal in relation to exercises of statutory discretion to approve or not approve particular enterprise agreements. The SDA has a demonstrated history of successfully bringing such appeals where appropriate to do so.
24. The Senate Committee should see RAFFWU’s submission for what it is, nothing more than a politically motivated attack by a fake union that offers very little assistance to the Senate Committee in its consideration of the matters the subject of its inquiry.
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APPENDICES
1. KFC - FWC DECISION 22/4/20 (AG2019/4042)
2. RAFFWU VS WW FWC DECISION 10/5/20 (C2019/596)
3. BIG W - FWC DECISION 5/5/20 (AG2019/975)
4. SRG FWC DECISION 7/2/20 (AG2018/6883)
5. SDA SUBMISSION - SENATE INQUIRY INTO PENALTY RATES IN THE RETAIL- HOSPITALITY – FASTFOOD SECTORS – JULY 2017
6. COVID19 SDA 10 POINT RETAIL HEALTH & SAFETY PLAN
[2020] FWCA 2020 [Note: a correction has been issued to this document]
FairWork Commission DECISION
Fair Work Act 2009 s.185—Enterprise agreement
Kentucky Fried Chicken Pty. Limited (AG2019/4042)
KFC NATIONAL ENTERPRISE AGREEMENT 2020 Fast food industry
DEPUTY PRESIDENT CROSS SYDNEY, 22 APRIL 2020
Application for approval of the KFC National Enterprise Agreement 2020.
[1] On 23 October 2019, an application (“the Application”) was made by Kentucky Fried Chicken Pty Ltd (the “Applicant” or “KFC”), for the approval of an enterprise agreement known as the KFC National Enterprise Agreement 2020 (the “Agreement”). The Agreement would cover the Applicant and 77 other named employers (the “Employers”)1.
[2] The Shop, Distributive and Allied Employees’ Association (the “SDA”) was an employee organisation bargaining representative for the Agreement for the purposes of s.176(1)(b) of Fair Work Act 2009 (the “Act”). The Australian Workers’Union (the “AWU”) was also an employee organisation bargaining representative for the Agreement for the purposes of s.176(1)(b) of the Act. Each of the SDA and the AWU, on 29 October 2019 and 21 November 2019 respectively, filed a Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement).
[3] On 29 October 2019, Mr Joshua Cullinan filed a Form F18A – Statutory declaration of employee representative in relation to an application for approval of an enterprise agreement (other than a greenfields agreement). That Form F18A identified at question 2 that “The Union” was the bargaining representative. While the Form F18A did not define the term “Union”, in answer to question 3 it stated that the Retail and Fast Food Workers Union (“RAFFWU”) “…is the bargaining representative of an employee”.
Standing of RAFFWU [4] When filing the Form F18A, RAFFWU also provided a redacted document in the form of a collection of emails titled “Instruments of Appointment – Bargaining Representative”. That document, which is annexed to this decision and marked “Annexure B”, consisted of four emails, three of which appointed RAFFWU as the bargaining representative of the
1 As listed at Appendix A to this decision.
1 Below are excerpts from decisions AG2019/4042
[15] RAFFWU is clearly not an employee organisation as defined by the Act, and its attempt to equate it’s position to that of the SDA, contained at paragraph 12 of their submission extracted above, is baseless and contrary to the entire scheme of the Act and the Fair Work (Registered Organisations Act) 2009.6
[16] RAFFWU is not subject to any such obligations, and its attempt to equate itself with a registered organisation by the use of the term “union” in its name is misleading.
[49] RAFFWU advanced what it identified as an alternative argument, being a difference between the scope of the SIEA and the NERR that it described as “manifestly different in scope and… therefore invalid.” The difference identified was the following:
“[The SIEA] specified the persons employed as “Team Members (not including managerial employees), including employees engaged as commissaries or in home delivery call centres.” However, the NERR that was issued was for a different Proposed Agreement which would cover “employees that work in KFC outlets across Australia.”
[50] It is an exaggeration to describe the above difference as manifestly different in scope. The coverage of the Agreement is certainly no less than that referred to in the SIEA. However, it is clear that single interest employee authorisations do not define the scope of bargaining. As the Full Bench observed in Stuartholme School and Others v Independent Education Union of Australia. 15
“In our view there is no indication in the relevant statutory provisions that the legislature intended that a single interest employer authorisation should define the scope of bargaining and that a bargaining representative who argues for a different scope is necessarily not genuinely trying to reach an agreement. The principle purpose of an authorisation is to permit a group of employers to do what the Fair Work Act does not otherwise permit and that is to bargain together for one enterprise agreement to apply to all of them. …”
[51] The NERR is not invalid.
(d) Whether the Group of Employees is Fairly Chosen Below are excerpts from decisions AG2019/4042
[81] The breadth of the undertaking seems to be mis-interpreted by RAFFWU. The reference to the Award in the Undertaking has the two-fold effect of:
(a) Ensuring employee entitlements arising from the Award are squarely preserved; and
(b) Recognising the steps under the Award that are equivalent to those under the Agreement.
[94] KFC submits that RAFFWU’s submission ought to be rejected as the wording of the superannuation clause of the Award, and the wording of the superannuation clause of the Agreement, are relevantly exactly the same.
[118] I reject the submission of RAFFWU. Its objection is not to the casual conversion clause of the Agreement when compared to the Award. Their complaint relates to the possible “destination” of conversion when it is desired to be part-time employment. I agree with KFC that the Agreement in fact makes it easier for casual employees to apply for conversion to part-time employment because the part-time provisions of the Agreement are more flexible than the Award. [2019] FWCFB 2355
FairWork Commission DECISION
Fair Work Act 2009 s.604 - Appeal of decisions
Retail and Fast Food Workers Union Incorporated v Woolworths Group Limited; Woolworths (South Australia) Pty Ltd; Shop, Distributive and Allied Employees Association; Australian Workers' Union; Australasian Meat Industry Employees Union (C2019/596) VICE PRESIDENT HATCHER COMMISSIONER SPENCER SYDNEY, 10 MAY 2019 COMMISSIONER HUNT Appeal against decision [2019] FWCA 7 of Deputy President Gostencnik at Melbourne on 7 January 2019 in matter number AG2018/6144.
Introduction
[1] The Retail and Fast Food Workers Union Incorporated (RFFWUI) has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision issued by Deputy President Gostencnik on 7 January 20191 (Decision). The Decision concerned an application made by Woolworths Group Limited and Woolworths (South Australia) Pty Ltd (collectively “Woolworths”) for approval of the Woolworths Supermarkets Agreement 2018 (2018 Agreement) on the basis of the acceptance of a number of undertakings. The 2018 Agreement covers approximately 107,000 employees engaged in 1,009 Woolworths stores across Australia. The RFFWUI acted as bargaining representative for about 105 of these employees in the negotiations for the 2018 Agreement, and opposed the approval of the agreement on a number of grounds. The other bargaining representatives for the 2018 Agreement, namely the Shop Distributive and Allied Employees’ Association (SDAEA), the Australasian Meat Industry Employees Union (AMIEU) and the Australian Workers’ Union (AWU), all supported the approval of the 2018 Agreement. The RFFWUI contends in its appeal that the Deputy President erred in approving the 2018 Agreement and seeks that the Decision be quashed. The appeal is opposed by Woolworths, the SDAEA, the AMIEU and the AWU, which all contend that permission to appeal should not be granted or, in the alternative, that the appeal should be dismissed if permission is granted.
[2] The factual background to this matter is set out in detail in the Decision2 and may be summarised briefly as follows. In October 2014, Woolworths initiated or agreed to bargain for
1 [2019] FWCA 7 2 Ibid [4]-[41]
1 Below are excerpts from decisions AG2019/596
[46] The RFFWUI, against the interests of the employees whom it purports to represent, seeks that clause 5.2 be given a narrow construction so that it is read as not applying to preferred dress in order to endeavour to establish that there was a misrepresentation on the part of Woolworths. Such a construction would, for employees wearing preferred dress, deprive them of the benefit of the allowance, which amounts to $6.25 per week for full-time employees and $1.25 per shift for part-time and casual employees. We see no reason to grant permission to appeal to allow the RFFWUI to argue that employees should not receive a monetary benefit which Woolworths is willing to pay, merely to aid the RFFWUI’s bid to overturn the whole agreement.
[47] The RFFWUI’s contentions in respect of this issue have an ersatz quality and are entirely lacking in substantive merit. [2020] FWC 1808
FairWork Commission REASONS FOR DECISION
Fair Work Act 2009 s.185 - Application for approval of a single-enterprise agreement
Woolworths Group Limited (AG2019/975)
Retail industry
DEPUTY PRESIDENT BOYCE SYDNEY, 5 MAY 2020
Application for approval of the BIG W Stores Enterprise Agreement 2019 — alleged non- compliance with ss.180(5) and 188 of the Fair Work Act 2009 — allegations rejected — enterprise agreement approved
Introduction
[1] On 17 September 2019 I issued a decision approving the BIG W Stores Enterprise Agreement 2019 (Agreement) with undertakings.1 The following further reasons are to be read in conjunction with that decision.
[2] The Agreement is a single enterprise agreement. It covers and applies to relevant employee “team members” of Big W Stores (including Big W Optical) (Big W).
Procedural Background
[3] The application for approval of the Agreement (pursuant to s.185 of the Fair Work Act 2009 (Act)) was filed with the Fair Work Commission’s (Commission) Registry in Sydney on 1 April 2019.
[4] In support of the approval of the Agreement, the documents filed by email were:
(a) Form F16 executed by Ms Kari Samantha Johnson (Employee Services Manager, Woolworths Group Limited, Big W);
(b) Form F17 executed by Ms Johnson, with annexed materials (F17);
(c) a Form F18 on behalf of the Shop, Distributive and Allied Employees Association (SDA), executed by Mr Gerard Dwyer (National Secretary of the SDA), with annexed materials;
1 Below are excerpts from decisions AG2019/975
RAFFWU ‘job security’ objections
[51] The foregoing items (c) and (d) can be rejected in very short order.
[52] In relation to item (c), the evidence clearly identifies that the SDA did explain to its members that clause 7.11 of the 2012 Agreement was being removed from the Agreement, in exchange for significantly increased redundancy benefits under the Agreement.17
[53] There is no evidence whatsoever that the SDA (subjectively or objectively) was acting in concert with Big W). This is a serious allegation, and very much needs unambiguous and highly probative evidence of its occurrence to be entertained.
RAFFWU ‘roster change’ objections
[56] Mr Cullinan’s evidence contains many statements of opinion and hearsay that I am unable to give any weight to. Statements made by Mr Cullinan are not supported by objective documentary evidence. There are also significant issues as to the relevance of much of Mr Cullinan’s statement.
[57] It is not entirely clear who Mr Cullinan, or RAFFWU, specifically represented during bargaining.
[60] (h) despite a very broad log of (ambit) claims, RAFFWU’s main concerns during bargaining centred around union right’s in the workplace.
“Mr Cullinan did not provide any specific feedback on the [final draft] proposed agreement and did not present any further claims during the meeting on 23 January 2019. Mr Cullinan did not raise any issue of the removal of the security of employment clause [7.11]”;29
[62] Ms Johnson was cross-examined extensively by Mr Cullinan. However, much of that cross-examination was not to the point in that it did not go to the contentions being advanced by RAFFWU in these proceedings. My impression of the cross-examination overall is that it was very much focused upon a broad ranging inquiry into the conduct of the SDA during bargaining, and during employee information briefing sessions. Below are excerpts from decisions AG2019/975
Rejection of RAFFWU ‘job security’ objections
[67] (d) There is no evidence that RAFFWU did not have every opportunity to update or provide copies of the draft Agreement (identifying the removal of 7.11 of the Agreement) to relevant employees to whom it was bargaining on behalf of. Significantly, there is no evidence that it did so.
[68] There is no foundation for any finding to be made by me as to the RAFFWU job security objection, including to the extent that it gives rise to any absence of satisfaction by me resulting in non-compliance with s.180(5) or s.188 of the Act.
Rejection of RAFFWU ‘roster change’ objections
[69] (d) The only evidence from RAFFWU concerning the roster changes is from Ms Gunner, who is not directly affected by the roster changes.68 Her evidence thus takes RAFFWU’s allegations nowhere.
(e) The RAFFWU submissions on this issue are no more than speculation and conjecture. On the evidence, and as a matter of law, the RAFFWU assertion in this regard is wholly without foundation.
[70] In view of the evidence, and my reasons set out above, I do not accept RAFFWU’s allegation that the roster changes (implemented in late March / early April 2019) were not disclosed to relevant employees (prior to the Agreement being made) so as to intentionally withhold such information from relevant employees, deceive relevant employees, or otherwise influence the voting preference of relevant employees. To be clear, I dismiss the RAFFWU assertion that a finding as to an absence of genuine agreement under s.188 of the Act ought to be made in relation to the roster changes implemented in March / April 2019.
Conclusion
[71] I reject all of RAFFWU’s objections to the approval of the Agreement.
DEPUTY PRESIDENT [2020] FWCA 665
FairWork Commission DECISION
Fair Work Act 2009 s.185—Enterprise agreement
Super Retail Group Services Pty Limited T/A Super Retail Group (AG2018/6883)
SUPER RETAIL GROUP ENTERPRISE AGREEMENT 2018 Retail industry
DEPUTY PRESIDENT LAKE BRISBANE, 7 FEBRUARY 2020
Application for approval of the Super Retail Group Enterprise Agreement 2018
Introduction
[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) for the approval of an enterprise agreement known as the Super Retail Group Enterprise Agreement 2018 (the Agreement) by Super Retail Group Services Pty Ltd (the Applicant).
[2] The “parties” to the Agreement are:
Super Cheap Auto Pty Ltd;
SRG Leisure Retail Pty Ltd;
Super Retail Group Services Pty Ltd;
Rebel Sport Limited;
subject to the exemptions listed in the Agreement, team members engaged by the above entities to perform work within the classifications contained in the Agreement; and
The Shop Distributive and Allied Employees Association (the SDA).1
[3] Below I will firstly outline a relevant chronology of the matter upon it being lodged with the Fair Work Commission (the Commission). I will then outline the outstanding matters that require my determination. I will then consider those matters.
Chronology
1 Agreement at [2].
1 Below are excerpts from decisions AG2018/6883
[65] The RAFFWU’s submission of the ‘Elimination of Accident Make Up Pay in Victoria’ not being explained is without merit. Firstly, the Applicant confirms, in its Key Changes Document’, that all those who are presently covered by this entitlement would be grandfathered by this clause. Secondly, and in any event, the Applicant discloses that this provision is being removed in the Agreement (and why), which the Applicant outlines is consistent with changes to the Award (see the ‘Key Changes Document”).50 The RAFFWU’s submission in this regard, and the veracity in which it is argued, is disingenuous in light of the clear documentary evidence provided by the Applicant that it was made known to the workforce that this entitlement would be going, in line with the Award, with an explanation as to why this would be the case.
[66] With respect to RAFFWU’s submission on regarding the Applicant not explaining the “expan[sion] of the definition of fixed term contracts to include maximum term contracts”, I find this submission similarly lacking in merit. For all intents and purposes with respect to how ‘fixed term contract’ and ‘maximum term contract’ should be interpreted inthe Agreement, I consider a maximum term contract to be fixed term contract. There is no distinction made in this clause or in any definitional section of the Agreement which distingui shes these two contractual arrangements. They are practically one and the same. This submission is a red-herring as the definitional change is of no consequence to the workforce. Any explanation to the workforce, in my view, would have only confused them, as the drafting of this clause may have done to the RAFFWU, and admittedly, to me, on first reading.
[67] I find also the RAFFWU’s submission regarding a lack of explanation regarding the change to the casual employment definition to be baseless. If anything, it can be said that the employer is merely doing housekeeping work with respect to this definition. It confirms an entirely unremarkable proposition that casuals employees are employed on “an hourly basis, without an expectation of regular, systematic or long-term employment”, and notes that “a 25% casual loading” is payable on a casual’s base rate, a similarly unremarkable observation.
[88] Put simply, I accept the submissions of the Applicant and the SDA. I accept their construction of the Kmart Full Bench decision over that of the RAFFWU.
[97] With respect to the casual cohort, I also accept the Applicant’s and the SDA’s submissions over the RAFFWU’s. [2020] FWCA 665
employees, pay rates above the Award (albeit in some cases only modestly), allowances for laundry and travel, paid tea breaks increasing to 15 minutes, and increased Sunday penalties.
[108] Subject to the undertakings provided (wherein the Applicant consulted with great vigour with the SDA to draft [the undertakings]), I am satisfied that the Agreement passes the BOOT.
[109] However, to further assist in my satisfaction, the RAFFWU acted as a contradictor in highlighting, in its view, a number of issues which, it submitted, the Commission would benefit from taking a closer look at in order to be satisfied that the Agreement indeed passes the BOOT. The RAFFWU remains of the view that the Commission cannot be satisfied that the Agreement passes the BOOT due to these issues. I will duly consider each one below and outline why I am satisfied the Applicant satisfies the BOOT. In my determination, I have concluded that some items in the Agreement are not better off as against the Award, however, thBelowese are areoffset excerpts by those things from which decisions are. AG2018/6883
BOOT Analysis
The Agreement analysed against the Award
The RAFFWU BOOT Applicant’s submissions and determination objection THE RAFFWU OBJECTION 1 On the Applicant’s evidence and on the analysis conducted by the MAT (and by the RAFFWU’s own THE WAGE RATES concession), the Commission is satisfied that all PROVIDED UNDER THE employees will be paid at a higher rate wage under the AGREEMENT (AT THE TEST Agreement than under the Award. TIME) PAY VERY LITTLE ABOVE THE AWARD. Determination: Commission is satisfied with regard to Objection 1. This weighs positively in the Commission’s BOOT assessment. The RAFFWU Objection 2 The Award states that “an employee cannot be required to take a rest break or meal break within one hour of The Agreement is detrimental commencing or ceasing of work.” due to the loss of specific rest and meal breaks in the Award, The Applicant submitted that the failure of an employer including: to strictly observe the conditions of c.31.1(c) of the Award does not give rise to the requirement to pay - The right to not to be overtime and as such the Applicant submitted that any required to take a rest or variation [of the Agreement] against the Award is a meal break within one neutral consideration when the Commission considers the hour of commencing or BOOT. ceasing work (clause 31.1) without any The Applicant submitted that the Agreement states that a equivalent protection rest break cannot be taken within the first hour of work, other than the first rest and that meal breaks should be taken within the first 5 break not being within the hours of commencing work “…and after the first rest first hour of work; break.” According to the Applicant, the terms of the - The right to have the time Agreement accord with the Award, insofar as it is not of taking rest and meal possible for an employee to be required to take a meal or
30 [2020] FWCA 665 Below are excerpts from decisions AG2018/6883
breaks and the duration of rest break within the first hour of commencing work. I meal breaks forming part accept this submission. of the roster and subject to the roster provisions of The Applicant then submitted that the Agreement states the Award (clause that a meal break is to be taken within the 5 hours of 31.1(e)) without any commencing work. It goes on to say that while an equivalent protection and employee may technically be able to take a meal break a specific within the last hour of ceasing work, this is practically acknowledgement that limited to employees working of between 5 and 6 hours they may be changed in duration. In this regard, the Applicant submitted that in other than by agreement the overwhelming majority of circumstances it will not be or following consultation; possible for a meal break to be taken within the last hour and of ceasing work. Practically, while this submission does - The exacerbating of the make sense, there is ultimately a detriment under the elements above by the Agreement as against the Award which I will give due permitting of combined weight in my determination. breaks. With regard to the issue about rest breaks possibly being taken within the last hour of ceasing work, the Applicant submitted that the timing of rest breaks is generally at the election of employees, subject to the approval of the needs of the business. The Applicant then submitted that an employer’s failure to provide breaks in accordance with the Award does not give an entitlement to overtime and as such, this matter should be viewed as a neutral BOOT consideration. I do not accept this submission.
With regard to the timing of rest and meal breaks not forming part of the roster conditions, the Applicant submitted that the failure of the employer to strictly observe the rostering conditions of the Award does not give rise to the requirement to pay overtime, and as such, should be a neutral consideration. I do not accept this submission.
Determination: Regarding all of these submissions, I do accept the RAFFWU’s submission that explanations from the Applicant on the timing of meal and rest breaks have only been made relevant to there being a financial detriment to the employees. There is clearly a change from the conditions in the Agreement and the Award, wherein the Award prescribes certain rights for employees on the time they can take meal breaks. The changed Agreement, may, result in a possible detriment (not financially) employees under the Agreement. This weighs negatively for the Applicant in the Commission’s BOOT assessment. The RAFFWU Objection 3 The Award states that a higher duties allowance is payable where “employees [are] engaged for more than The Agreement is detrimental as two hours during one day or shift on duties carrying a
31 [2020] FWCA 665 Below are excerpts from decisions AG2018/6883
there are no higher duties rights higher rate for such day or shift. If engaged for two hours when an employee is required to or less during one day or shift, the employee is to be paid cover a manager on a meal break. the higher rate for the time worked only.”
The Applicant submitted that under the terms of the Award, a higher duties allowance is only payable where a Level 1 retail employee performs the duties of a Level 3 retail employee by undertaking the following duties:
(a) Supervisory assistance to a designated section manager or team leader; (b) Opening and closing of premises and associated security; (c) Security of cash; or (d) Fitting of surgical corset.
The Applicant submitted on this issue that retail employees covered by the Agreement are not involved in providing supervisory assistance to a designated section manager or team leader and are not required to fit surgical corsets. Accordingly, according to the Applicant, a higher duties allowance would only be payable where a retail team member is responsible for the opening and closing of a retail establishment, or where an employee is responsible for the security of cash. I accept this submission.
The Applicant submitted that the RAFFWU is incorrect in its application of the Award in that the absence of a manger for an unspecified meal break would not require a team member to be practically appointed as an Assistant Store Manager or Store Manager for that period that would necessitate the payment of a higher duties allowance. According to the Applicant, during such absence, team members would undertake the duties and responsibilities of their associated classification in the absence of a nominated manager. I accept this submission.
Further to the above, the Applicant submitted that undertakings 13 and 14 it has filed with the Commission confirm that retail members engaged under the Agreement shall not be required to perform duties to perform duties typically associated with a retail employee Level 2 or Level 4 – 8, and that for the avoidance of doubt, the payment of the Shift Supervisor Allowance, under the Agreement, is equivalent to circumstances where a Level 1 employee undertakes duties associated with a Level 3 employee under the Award. I accept this submission.
32 [2020] FWCA 665 Below are excerpts from decisions AG2018/6883
Determination: Commission is satisfied that an employee would not be required to perform the duties of an Assistant Store Manager or Store Manager for a period of an unspecified meal break. Even if the Commission was not and still could not be satisfied that employees would not be required to perform these duties, the undertakings provided by the Applicant ensure that no employee not worse off than what they would be under the Award. This is a neutral BOOT consideration. The RAFFWU Objection 4 The Award states at clause 31.2(a)(b) that an employee shall be granted a 12 hour break between the finishing of The Agreement lacks a base right work on day and the commencement of work on the next to a 12 hour break between shifts day, otherwise an employee is entitled to double pay until and puts in a requirement to they are released for the requisite 12 hour period. apply for and be granted such a right. The Award allows for the 12-hour period to be reduced to 10 hours by “…agreement between an employer and an employee or employees.”
Determination: The Commission is satisfied that the duration of breaks between shifts is a matter than may be varied through the bargaining on, voting on and making of an enterprise agreement. This issue weighs neutrally in the Commission’s BOOT assessment. The RAFFWU Objection 5 With regard to the offsetting casual loading concern, I am satisfied that the deletion of clause 16 from the Certain undertakings provided by Agreement pursuant to undertaking 2 deals with this the Applicant are not sufficient issue. with regard to: Determination: offsetting casual loading clause is not an issue. - offsetting casual loading - compulsory training With regard to the compulsory training meetings issue, meetings of less than 3 undertaking 14 states as follows: “Compulsory training hours not being paid as sessions or team meetings will be limited to one training overtime session or team meeting per month up to two hours - two consecutive days off duration. Full-time employees will be paid at the ordinary per week (or 3 per rate of pay even if the training session ot team meeting fortnight) cast as extends beyond ordinary hours. Where a training session “requestable” rather than or team meeting takes place on a part-time employee’s default; normal working day, but extends beyond ordinary hours, - generally a failure to the employee will be paid at overtime rates for the period replicate Award of the training session or team meeting that extends classifications and beyond ordinary hours. Casual employees will be paid at classifications rights. overtime rates for any period of a training session or team - casual conversion meeting that extends beyond ordinary hours. provisions, Determination: The Applicant provided modelling to the Commission that employees who undertook training would be better off to the value of $142.46 - $78.98 per
33 [2020] FWCA 665 Below are excerpts from decisions AG2018/6883
month. I accept this evidence and that this weighs positively in the Commission’s BOOT assessment.
With regard to the 2 consecutive days off per week (or 3 per fortnight submission, undertaking 5 now states: “In the alternative to the provisions of clause 17(e)(i) you may request to work your ordinary hours so that you would be provided with two consecutive days off each week or three consecutive days off in a two week period. Any such request will not be refused by the Company. Determination: Commission is satisfied that this undertaking is now consistent with the Award provisions. With regard to a failure to replicate award classifications and classification rights, undertakings 17 and 18 state that: Retail Team members engaged under the Agreement shall not be required to perform tasks or duties typically associated with a Retail Employee Level 2 or 4-8 under the General Retail Industry Award 2010 as at the date of this undertaking (17); and For the avoidance of doubt, the duties of a Shift Supervisor, as referenced at clause 220-222, is equivalent to that of a Retail Employee Level 3 under the General Retail Industry Award 2010 as at the date of this undertaking (18). With regard to the casual conversion provisions, the Commission accepts that the Agreement’s casual conversion clause at 174 is marginally different to the Award’s. There may be some detriment, but it is negligible, based on undertakings 15 and 16 which in large way assist the Commission in its satisfaction that there is no considerable detriment to employees.
Determination: The Commission is satisfied that undertakings 15 and 16 satisfy the Commission that any detriment with respect to this clause is negligible in the BOOT consideration.
[110] While I have determined that meal breaks and the casual conversion clauses are items not better off in the Agreement as compared to the Award, ultimately, employees are made, in my view, better off overall by the increased pay rates and the added allowances as compared to the Award. Overall, the Commission is satisfied that the Agreement passes the BOOT in accordance with s. 193 of the Act.
Conclusion
34 o ~9SJ rnE mum~ FOR WORKIRS Ill Shop Distributive and Allied Employees· Association RETAIL FW FDOO.WAREHOUSIHG.
SUBMISSION
Senate Inquiry Into Penalty Rates In The Retail, Hospitality · And Fast Food Sectors
18 July 2017
Table of Contents
Page Number 1 Introduction 2
2 Industrial Leo islation to the 1990's 3
3 Establishina and Defendina Penaltv Rates 8
4 SDA Bargaining - How it has delivered for Retail and Fast 15 Food Employees
5 Operation and application of the BOOT (Better Off Overall 19 Test)
6 Comolexitv of The Penalty Rate Debate 24
7 Detrimental Provisions Requiring Amendment 26
8 Enhancina Comoliance through Bargaining 32
9 Conclusion 34
Appendix A - Summary of Findings Appendix B - Coles Employee U - Better Off Under The Coles EBA
The following motion was passed by the Senate on Monday 19 June 2017.
"19 Education and Employment References Committee-Reference
Senator Xenophon, also on behalf of Senator Griff, pursuant to notice of motion not objected to as a formal motion, moved business of the Senate notice of motion no. 1-That the following matters be referred to the Education and Employment References Committee for inquiry and report by 16 October 2017:
(a) claims that many employees working for large employers receive lower penalty rates under their enterprise agreements on weekends and public holidays than those set by the relevant modern award, giving those employers a competitive advantage over smaller businesses that pay award rates;
(b) the operation, application and effectiveness of the Better Off Overall Test (BOOT) for enterprise agreements made under the Fair Work Act 2009;
(c) the desirability of amending the Fair Work Act 2009 to ensure that enterprise agreements do not contain terms that specify penalty rates which are lower than the respective modern award;
(d) the provisions of the Fair Work Amendment (Pay Protection) Bill 2017; and
(e) any other related matter related to penalty rates in the retail, hospitality and fast food sectors. Question put and passed."
lJPage 1. Introduction
Competitive Advantage Claims Rejected
The SDA rejects claims that large employers have a competitive wage advantage over smaller businesses in the industries covered by the union. Wages are a significant and critical component of a business's costs and like any other cost (e.g. product, electricity, tax etc.) it must be measured over a trading cycle, financial quarter or season to be properly understood. Retail and fast food operate across 7 days of the week and are also subject to seasonal variations so any logical examination of wage costs must be made across appropriate time frames. A disingenuous argument has been advanced by some business groups which calls out rates on specific days but completely disregards the higher wage rates paid at other times across the roster cycle. Businesses assess their wage costs across longer time periods and likewise employees assess their take-home-pay over longer time frames. Loaded rates have been a part of the Australian industrial relations landscape for decades and the underlying reference point has always been 'take-home-pay'. Recent history has shown that smaller retail and fast food businesses have been quick to take advantage of aggressive workplace laws introduced by Liberal/National Party Governments but they have been less keen to actually engage in enterprise bargaining that might increase take-home-pay and other benefits for employees. The zero take up of the South Australian Small Business EBA Template 2015 (SDA and Business SA) demonstrated clearly demonstrated what the real agenda was for this sector and that was to reduce wage costs. When it became clear that cutting wages wasn't on the table there was no interest in applying the bargaining template, despite the fact that it required no engagement at all with the industry union.
Wages for employees in retail and fast food are regulated by two major industry Awards and multiple Enterprise Agreements. Through bargaining and diligent award work by the SDA, Australian retail and fast food workers are amongst the best paid in the world (see Appendix "A'J).
This submission will outline a brief history of industrial legislation in Australia and set out the radical Liberal/National Party agenda in recent decades to cut the take home pay of some of Australia's lowest paid workers. The submission will also examine the relentless attack on penalty rates over the past three decades and the defences, including enterprise bargaining, that the SDA has employed to resist this onslaught. SDA bargaining will be shown to have delivered good industrial outcomes for retail and fast food workers. Some of the complexities of the penalty rate debate will also be explained and recommendations made for improving the current system. To properly understand the debate about enterprise bargaining, penalty rates and take-home pay, it is important to firstly understand the tumultuous nature of workplace law reform and trading hours regulation over the past 25 years.
21Page 2. Industrial Legislation to the 1990's
Today's Federal System of Industrial Relations, centred on the Fair Work Act and the Fair Work Commission, has built upon previous legislative frameworks and is also a response to the actions of various Governments throughout Australia in recent decades.
The relative stability of the State and Federal industrial relations systems which had existed since 1904 underwent radical and dramatic change in the 1990's. Until that time, the State and the Federal systems had operated long term, on a basis of setting wages and conditions that were applied generally through award systems. Legislation in all jurisdictions provided processes and rules for parties to participate in hearings, run cases to address claims or issues and arbitrate matters when needed. Both unions and employers participated.
The Awards were a central platform for wage equity. National and State Wage cases, work value cases which addressed the changing nature of jobs and wage rate relativities based on skills were features of the Award system. For example, the SDA was able to secure a 92.14% relativity to the tradespersons rate in the retail industry in the late 1980's/early 1990's. This was an enormous advance for retail workers at the time. Legislation history
In 1904 the Commonwealth enacted the Conciliation and Arbitration Act 1904. It relied on the powers conferred by s.51 (xxxv) of the Constitution.
By 1912 all States in Australia had a State system in place to deal with relationships between employers and unions.
• NSW, Qld and WA adopted conciliation and arbitration systems.
• Vic and Tas adopted wage board systems (equal representations of employers and unions with an independent Chair)
• SA adopted a combination of the two.
The Conciliation and Arbitration Act was amended by 60 Acts until 1988. That Act was then repealed and replaced with the Industrial Relations Act 1988 but the system created by the 1904 Act did not have its essential elements change dramatically over this time. Conservative Attack on Wages and Conditions
Victoria 1992 - the First Wave
The Victorian Liberal Government under Premier Kennett made changes in legislation to reduce employee working entitlements. These included removing an employer's obligation under State Awards to pay the 17.5% annual leave loading (Annual Leave Payments Act 1992) and reduced the number of Public Holidays in Victoria by removing Easter Saturday, Show Day and substituted Christmas public holidays.
The Kennett Government then introduced the Employee Relations Act 1992, which repealed the Industrial Relations Act 1979. This left employees in state regulated industries with no awards from 1 March 1993. The practical objective was to move these employees onto individual agreements.
Employees who stayed with their employer maintained most of their conditions from the Awards. However, all other employees had only five minimal protections:
3jPage • Minimum hourly rate of pay (no stipulation of penalties)
• Annual leave
• Sick leave
• Parental leave
• Long Service Leave This was catastrophic for employees in high staff turnover industries like retail and was a challenging period for the SDA. Small business escaped the Award system and was now able to reduce the take home pay of employees. It was also at this time that the SDA began bargaining National Enterprise Agreements with larger employers and this development is dealt with in detail later in this submission. In 1996 certain legislative powers of the State were transferred to the Commonwealth via the Commonwealth Powers (Industrial Relations) Act 1996. This legislation did not provide powers to make 'common rule' awards in the Federal system. The Victorian Government deliberately kept this power to try and prevent the Federal Industrial system being able to apply in a simple manner in Victoria by removing Easter Saturday, Show Day and substituted Christmas Public Holidays. The Kennett Government then introduced the Employee Relations Act 1992, which repealed the Industrial Relations Act 1979. This left employees in State regulated industries with no Awards from 1 March 1993. The practical objective was to move these employees onto individual agreements.
Western Australia 1993 - the Second Wave In 1993, the Court government introduced the Workplace Agreements Act 1993 ("the WA Act") and the Minimum Conditions of Employment Act ("the MCE Act"). The WA Act was arguably the most radical Act of the individual agreement enabling Acts, drafted by Liberal governments at that time. Rather than having a form of no-disadvantage test versus the relevant Award, a Western Australian Workplace Agreement ("WAWA") made under the Act only had to meet the conditions of employment set out in the MCE Act. Those provisions were simply:
1. Four weeks annual leave (with no loading) 2. Two weeks sick leave 3. Two days compassionate leave 4. The right to paid time off on a public holiday that fell on a working day (but no penalties for working or right to refuse to work) 5. A minimum weekly wage, set at the Minister's discretion via a Minimum Wage Order. The first Minimum Wage Order in 1993 set the minimum wage at $275.50 per week. By comparison, the Award rate at the same time was $385.00 per week.
The WA Act provided that once a WAWA was in place, it totally displaced any Award that would apply. Unsurprisingly, WAWAs were embraced with gusto by Western Australian employers, particularly smaller retailers. Rather than be saddled with the Award rate of pay and conditions, they could have employees working 24/7 and 365 days a year with no penalties whatsoever.
41Page During the period 1993 to 2001, the retail sector in WA was divided into two groups - the larger employers covered by SDA Agreements, who were paying base rates above the Award plus penalties, and the remainder of the industry, which was overwhelmingly using WAWAs with the lowest possible level of wages and conditions.
Studies of WAWAs and their conditions have concluded that a significant proportion of workers were worse off than they would have been had they been on the relevant award or a collective agreement'.
It was generally concluded that WAWAs 'were not used to facilitate mutually rewarding workplaces. They were used instead to strip awards and drive down wages and employment 2 conditions' •
Federal 1996 - The Third Wave
In 1996 major change was introduced and the Act was renamed the Workplace Relations Act 1996. The significant changes including contracting out of the award system by the use of individual 'Australian Workplace Agreements' {AWAs). At this time limitations on Award provisions were introduced including awards no longer being able to set minimum or maximum hours for a part time employee.
To be approved, these 'secret' AWAs must be no less than the award. It has been shown that while most collective agreements were well above the safety net, AWAs often just passed, and were sometimes approved despite failing a no disadvantage test.
Academic studies showed that AWAs provided wages and conditions less than those achieved through collective agreements'
But worse was still to come for workers.
Federal 2005 - The Fourth Wave (WorkChoices)
The Howard Government introduced the Workplace Relations Amendment (Work Choices) Act 2005 ("Work Choices"). This Act further reduced entitlements by removing the no
1 Fells Rand Mulvey C (1994) 'Changes in Western Australian Industrial Relations', NZJIR. 19 (3): 289-30; ACIRRT (1996) 'Understanding Individual Contracts of Employment: An Exploratory Study of how 25 WA Workplace Agreements Compare with Relevant Award Entitlements'; ACIRRT {1999) An Exploratory Study of Western Australia s.30 Workplace Agreements: Emerging Trends; Bailey J and Horstman 8 (2000) 'Life is full of Choices: Industrial Relations 'Reform' in WA since 1993', Research on Work, Employment and Industrial Relations 2000, 14th AIRAANZ Conference, Newcastle, Feb, 1: 39-51; Berger K {2000) 'Workplace and Enterprise Agreements in the Western Australian Public Sector: Some Preliminary Findings', Research on Work, Employment and Industrial Relations 2000, 14th AIRAANZ Conference, Newcastle, Feb, 3: 131-142; Plowman D and Preston A (2005) Submission to Senate Employment, Workplace Relations and Education Legislation Committee Inquiry into the WRA (Work Choices) Bill 2005, University of Western Australia, Perth, Nov
2 Senate Report into the Provisions of the Workplace Relations Amendment (Work Choices) Bill 2005, Senate Employment, Workplace Relations and Education legislation Committee, Senate Printing Unit, Canberra, Nov.
3 Bramble T (2001) 'Family-friendly Working Arrangements and the Howard Government Industrial Relations Agenda', Crossing Borders: Employment, Work, Markets and Social Justice across time, discipline and place: Proceedings from the 15th AIRAANZ Conference, 1: 26-33, 31 Jan - 3 February, Wollongong; Cole M, Callus Rand van Barneveld K (2001) 'What's in an Agreement: An Approach to Understanding AWAs', The AWA Experience; Evaluating the Evidence, Conference presented by ACIRRT and the Office of the Employment Advocate, 7 Sept, University of Sydney, Whitehouse G (2001) 'Industrial Agreements and Work/Family Provisions: Trends and Prospects Under Enterprise Bargaining', Labour and Industry. 12 (1): 109-130; Mitchell Rand Fetter J (2003) 'Human resource management and individualisation in Australian labour law', Journal of Industrial Relations, 45 (3): 292-325; van Barneveld K (2006) Australian Workplace agreements under Workchoices, The Economics and Labour Relations Review 165
SJ Page disadvantage test and introducing 5 minimum conditions known as the Australian Fair Pay and Conditions Standard (AFPCS)
These conditions were:
• minimum hourly rate of pay and casual loading;
• maximum ordinary hours of work;
• annual leave;
• personal leave; and,
• parental leave and related entitlements. AWAs were used to increase the number of hours an employee could work whilst minimising the cost of labour' . Further highlighting the labour-cost focus of AWAs, numerous studies have found that the wages of AWA workers were less than those on collective agreements.
A Radically Changed Environment In a very short period of time the Australian Industrial legislative framework had radically changed. It was no longer based on Awards which provided protections and a platform for improvements in wages and conditions. Minimum conditions including penalty rates were removed and employees were vulnerable and exposed to the whims of employers.
Dramatic Expansion of Enterprise Bargaining Running parallel to these legislative attacks on Australian workers Award protections was the expansion of Enterprise Bargaining. The Keating Government 1993 Amendments to the Industrial Relations Act (Industrial Relations Reform Bill 1993) moved the emphasis in the Federal system from safety net Awards to Enterprise Bargaining. Such bargaining could be undertaken by both large and small employers but in Victoria and Western Australia smaller businesses generally took advantage of the radical State Legislation that existed. This shift to enterprise bargaining in the early 1990's saw bargaining commence in industries like retail where the norm had been wage setting through the Award system. The SDA's first comprehensive EBA was with Coles Supermarkets and was finalised in 1994. This is examined in more detail later in this submission. At this time, there were some attractions for both unions and employers to engage in enterprise bargaining. A key attraction for unions was access to wage increases. The Industrial Relations Minister Peter Cook proposed in August 1992 that there would be no 'national wage increase'.
4 R Roan A, Bramble T, Healy J, Lafferty G and Tomkins, M {2000) 'AWAs: The Story So Far', in Burgess, J and Strachan, G (eds) 14th AIRAANZ Conference, February, Newcastle, NSW, 3: 34-42; Mitchell Rand Fetter J (2003) 'Human resource management and individualisation in Australian labour law', JIR, 45 (3): 292-325; Briggs C (2005) Federal IR Reform: the shape of things to come, ACIRRT report commissioned by Unions NSW, University of Sydney, November; HREOC (2005) Submission to the Senate Employment, Workplace Relations, and Education References Committee Inquiry into the Workplace Relations Amendment {Work Choices) Bill 2005, Submission 164, Human Rights and Equal Opportunity Commission, Sydney, Nov.
6IPage Furthermore, there would only be access to $10 per week increases for the lowest 30% of wage earners in 1993 and 1994. Any other increases would only be available through enterprise bargaining. This was all part of Accord Mark VII and if unions were to effectively lift wages for their members they had to engage in enterprise bargaining.
Another advantage that enterprise bargaining at the national level provided the SDA was the capacity to protect its members in States like Victoria and Western Australia who from 1993 onwards had Liberal Governments strip away their Award protections. These Governments trampled on the Award safety net (see below) and unfortunately Retail and Fast Food workers were among the most exposed. A national Agreement restored comprehensive workplace rights for these employees and ensured that the value of penalty rates could be protected either directly or in the form of loaded base rates.
For national employers, enterprise bargaining meant they could move off six (6) different State Award systems and have one industrial instrument covering their entire workforce. It also meant that many national retailers created single national benchmark instruments known as Enterprise Awards.
7JPage 3. Establishing and Defending Penalty Rates
The following table is not exhaustive but sets out the attack on penalty rates in several jurisdictions since the late 1980's to the present day:
Year Retail or Sunday Saturday State/ Governing Fast Territory Party Food 1980's - \RC replaced Overtime Sat NSW ALP afternoon with 125%. ALP Govt by Regulation sets 150% 1988 - New Govt cut 150% Sat NSW LNP afternoon to 125% 1991 - VIC \RC cut 150% to 125% VIC ALP (ohased in) 1992 12 Trading - VIC ALP Sundays introduced. SDA had to defend 200% in VIC \RC
1992 Retail Awards (& Awards (& therefore penalty VIC LNP and Fast therefore penalty rates) abolished Food rates) abolished
1993 Retail West Australian West Australian Workplace WA LNP and Fast Workplace Agreements used to Food Agreements used remove penalty rates to remove penalty rates 1994 Retail 200% Sundav rate VIC/FED LNP 1996 Retail Ability to contract Ability to contract out of Fed LNP and Fast out of Award Award system. Food system. Part time award protections Part time award removed protections removed 2003 Retail 200% Sunday Rate VIC/FED ALP/LNP for 17,000 Roped- In Employers won bv SDA 2005, Dec Retail Work Choices - Work Choices -AWA's Fed LNP and Fast AWA's used to used to remove penalty Food remove penalty rates rates. Awards to be replaced with Awards to be 5 minimum standards replaced with 5 minimum standards
SJ Page 2008 Retail SDA begins case Fed ALP to set Sunday at 200% in Mod Awards 2008 Fast SDA begins case Fed ALP Food to set Sunday at 200% in Mod Awards Employers seek 0% or 150% 2008 Dec Retail Modern Award Fed ALP Sets 200% for Sunday 2008 Dec Fast Modern Award Fed ALP Food Sets 175% for Sunday 2009 Fast Employers apply to Fed ALP Food cut the 175% rate which is to be phased into the Modern Award from Jan 201 0 2010,Jan Fast Employers win cut Fed ALP Food from 175% to 150%. This to transition into effect by July 2014 2012 - Retail SDA successfully Fed ALP 2013 defends 200% Sunday against employers seeking to reduce the rate to 0% or 150%. 2012-2013 Fast SDA successfully Fed ALP Food defends 150% Sunday against employers seeking 0%. 2014 Retail Sunday rate - Fed LNP reaches everywhere 200% 1/7/14 2014 Fast Sunday rate - Fed LNP Food reaches everywhere 150% 1/7/14 2014 Retail Employer case to Fed LNP cut 200% beoins 2014 Fast Employer case to Fed LNP Food cut 150% beoins 2017, Feb Retail 200% cut to 150% - Fed LNP /ohased inl 2017, Feb Fast 150% cut to 125% - Fed LNP Food /ohased inl
9IPage The above table clearly demonstrates the relentless attack on retail and fast food penalty rates waged by employers and Governments in recent decades. It should be noted that several jurisdictions did not have penalty rates in the relevant Award regulating work in Fast Food. The setting of penalties in the Modern Fast Food Award was a significant win by the SDA for fast food employees.
In the retail sector across all State jurisdictions the penalty rate debate was inexorably linked to the push for extended trading hours. Employers would push for an extension of trading hours in relevant State legislation and often submit that this would enable employees to work at times attracting higher rates of pay. The reality was that once extended trading hours were secured Employer groups would then seek a cut in the applicable rate of pay. This has played out consistently for over 35 years with the introduction of late night trading, Saturday afternoon trading and finally Sunday trading. For example, in 2003 with the introduction of Sunday trading in South Australia the Retailers Association headed by Stirling Griff ran a case to move Sunday work from overtime (200%) into Ordinary Time. The South Australian Industrial Relations Commission agreed and set a 60% penalty for Sunday work. The SDA appealed this to the Supreme court but lost. Once a rate was established the next argument faced by the SDA would be centred on defending the penalty rate that had been established immediately after the extension of trading hours. If successfully defended there would invariably be another application to again cut the established penalty rate. If the February 2017 FWC Penalty rates decision stands (currently subject to Judicial Review) the applicable rate for Sunday work in South Australia will have fall below the 60% set in 2003/4.
The extension of trading hours has fed the attack on penalty rates in both the State and then Federal jurisdictions. Implementing Our Defence
An Award Defence:
In 1992 the SDA faced the reality that its members in Victoria would suffer a massive reduction in conditions of employment caused by a State Liberal Government implementing anti worker legislation.
The SDA undertook a massive job to ensure its members were protected from the effect of the legislation.
The first stage was to have awards made in the Australian Industrial Relations Commission (AIRC).
10 I Page The timeline and steps of this stage were:
Early 1993 SDA logged approximately 200 employers (covered major retailers and small retailers) where the SDA had members. March 1993 AIRC found a dispute between the SDA and the employers loaaed. March 1993- AIRC arbitration between the SDA, Vic Government+ employers - Early 1994 over a Victorian Award. December 1993 Al RC made an interim award to provide substituted Public Holidays over the Christmas 1993 period. March 1994 AIRC made an interim award to provide Easter Saturday 1994 as a Public Holidav. Awarded an $8 per week waae increase. April 1994 Interim Federal Awards made in retail for Victoria. Casual conditions not included. The new federal awards reflected previous State Retail Awards.
The Kennett Victorian Government did intervene in the proceedings to try and prevent the SDA making awards.
Then the second stage was an even larger exercise with the objective of having the award apply to the many thousand small retailers who were now award free in Victoria. This was done via a process of serving logs of claims on employers and disputes being found in the AIRC. The Victorian Government had not allowed the AIRC to make any Award applying in Victoria 'Common Rule' and so the individual logging of employers was the only option.
This exercise by the SDA faced considerable opposition from the State Government and also employers which resulted in numerous proceedings before the AIRC. The SDA persevered because re-establishing award coverage would restore take home pay for employees in small retail businesses by reintroducing penalties and other Award entitlements.
The time-line for ultimately "roping in" over 17,000 award-free retail employers in Victoria into Federal Award coverage is as follows: -
1 March 1993 State Awards abolished in Victoria. No penalties on any hours.
26 June 1998 SDA Letter of Demand and Loa of Claims to 35,877 retail emolovers.
29 December 2000 Dispute found between SDA and 24,422 retail employees. (C. No. 1998/75644)
5 August-25 October Hearing on the making of a roping-in award for 17,628 retail 2002 employers.
17 January 2003 Decision in favour of roping-in award, SDA Victorian Shops Interim (Roping-in No. 1) Award 2003, including interim penalty for Sunday of 150%.
17 February 2003 Operative date of roping-in award except for Saturday penalty and interim Sunday penalty.
17 May 2003 Operative date under the roping-in award of Saturday penalty of 125% and interim Sunday penalty of 150%.
11 I P age 3 December 2003 Final decision: 200% Sunday penalty. [Print PR941526]
1 January 2004 Operative date of Sundav penalty of 200%.
This work was conducted in 2 stages and took over a decade of continuous work from the SDA. Many challenges were faced and the legislation was challenged in complex hearings as aspects of this case were often without precedent.
The SDA was ultimately successful in ensuring that members and thousands of non-union employees in the Retail Industry in Victoria were able to have an appropriate safety net award restored despite hostile Government legislation. The result was a more equitable platform of conditions of work applying to both small and large retailers. Large retailers had been award covered since 1994 and now a decade later most small retailers were also back under an Award.
Bargaining Defence - Case Study 1 (VIC Small Business)
The SDA is always ready to engage employers of any size to negotiate good Agreements that provide benefits to employees and allow effective operation of the business.
Following the abolition of State Awards by the Kennett Government in 1992 the SDA had logged thousands of employers (see table above). A large number of these had been independent supermarkets where the SDA had some members. Following this logging of employers, The Masters Grocers Association of Victoria (MGAV) opened up discussions with the SDA and by 1994 the SDA and MGAV had negotiated an Agreement which covered around 100 small supermarket employers. This first Agreement contained a spread of hours up to 10pm Monday to Friday and provided a Sunday penalty rate of 150%. In 2005 the Commission said that the agreement could only include employers with single sites. After this date, any employer with more than one store had to have their own separate agreement and this was facilitated by the SDA and MGAV. The agreements have continued up until today and still cover approximately 55 employers.
Bargaining Defence - Case Study 2 (WA Small Business)
(2001- repeal of the Workplace Agreements Act and transition to Awards and Agreements)
In early 2002, the SDA engaged with FAL, who were at the time the master franchisors of the Dewsons, Supa Valu and Foodland brands (all later re-branded as IGA), with a view to securing a multiple business Agreement with approximately 130 franchisees.
At the time, the Award rate was $491.00 per week and all of the penalties and allowances above still applied. By contrast, the final Minimum Wages Order set the minimum weekly wage at $413.40. As such, the FAL franchisees were looking at an increase of $77.60 per week (18.8%) just on base rate alone, let alone the impact of a comprehensive suite of penalties and allowances. SDA Officials involved at the time did not find one example of a franchisee who was previously paying anything other than the absolute minimum allowed by the operation of the WA Act and the MCE Act.
12 I Pa g e Despite the obvious obstacles, the SDA was able to successfully engage this group of small business owners and negotiate an outcome that included:
1. A Shop Assistant rate that was applicable to most stores of $500 per week, with six monthly increases of $1 O per week (roughly 4% per annum) 2. Sunday penalty of 50% 3. Public Holiday penalty of 200% in year one, rising to 250% in the third year of the Agreement. 4. Eleven public holidays (versus the ten applicable under the MCE Act) 5. Non-working day benefits for public holidays for full time employees 6. Allowances such as meal money, in charge and cold work 7. 17.5% annual leave loading 8. Overtime rates at time and a half for the first two hours and double time thereafter. (No overtime rates were payable under the MCE Act or WAWAs) 9. Standard SDA rostering protections
Some of the franchisees had purchased stores in the 1993-2001 period and had never known anything other than WAWA rates of pay. For them, the increase was massive. During this time, the SDA operated in good faith with franchisees and negotiated an Agreement satisfying the No Disadvantage Test applicable at the time. The reality of the situation was that no Agreement meant that employees would continue, for the time being at least, to languish under the vastly inferior WAWA conditions. The Full Bench certified the Agreement.
Regrettably, not all 130 franchisees were ultimately covered by the Agreement. In the final week before rollout, the Chamber of Commerce and Industry (CCI) of WA became aware of the proposal and told the franchisees that there was a much cheaper way. CCI insisted that they could get AWAs {which were by then in operation Federally in a restricted form) certified with no penalty rates and just the Award base rate of pay. The SDA genuinely believed this was not possible. However, the Office of the Employment Advocate was advising that, as per then IR Minister Tony Abbott's comments in parliament, where an employee expressed a preference for a particular hour of work, there was no need to pay that employee a penalty, no matter what the Award provided. This led to a raft of AWAs, all in identical terms (as is usually the case with "individual" Agreements), which required the employee to sign a pre filled back page that set out the employee's "preferred hours".
These CCI AWAs were indeed certified with no penalty rates and lead to two tiers of industrial standards in independent supermarkets in WA. This was not a good outcome for genuine competition and not a good outcome for these employees forced onto AWA's.
The SDA had succeeded in raising the standards for many thousands of employees in the independent supermarket sector, albeit that in many cases this was short lived, as competitive pressure saw many franchisees seek out CCI AWAs as soon as they were able. Yet another example of Liberal Party laws cutting the take home pay of lower paid Australians.
Bl Page Building The Modern Awards (2008-2009)
Creating the General Retail Industry Award (GRIA) and the Fast Food Industry Award (FFIA) - modern Awards which both took effect 1/1/2010- was an enormous task as the variations between State Awards were large and achieving common conditions and rates was complex and difficult. The GRIA was a major advance tor retail employees with the SDA securing a rate of 200% for Sunday work despite some major jurisdictions having a Sunday rate of 150%. It should be noted that the 200% was subject to transitioning and did not take full effect until July 2014.
The FFIA was also a significant case tor the SDA as the union secured its long-term objective of a base hourly rate equal to that in retail. At the time the SDA was declared the 'Principle Union' in the fast food industry (the 1990's), the various relevant State Awards had provided weekly rates between $40 and $88 a week lower than the corresponding retail Award. There was also a complete absence of penalty rates in some of those Awards.
14 I Page 4. SDA Bargaining - How it has delivered for Retail and Fast Food Employees
In the complex environment of various State Liberal Governments dismantling Award protections and Federal Liberal Governments doing likewise from 1996 onwards, the SDA was able to provide significant protections for its members through enterprise bargaining.
SDA agreements have provided critical protections against the relentless attack on the earnings and conditions of low paid Australians by Liberal Governments throughout the 1990's and 2000's. (See previous table, Relentless Attack on Penalty Rates).
The SDA has successfully used enterprise bargaining as a mechanism to increase wages and conditions for retail and fast food employees. In companies where the SDA has a long history of bargaining, wages outcomes exceed both CPI and Award increases.
Table 1 Rates of pay in Retail enterprise agreements
David Award Coles Woolworths Myer Target BigW Jones Kmart Rate as at July $383.80 $383.80 1993 $383.80 $383.80 $383.80 $383.80 $383.80 $383.80 Rate as at July $703.90 2014 $773.80 $793.48 $709.00 $726.00 $743.70 $743.36 $747.70 Increase 83.4% 101.6% 106.7% 84.7% 89.2% 93.8% 93.7% 94.8% Real increase 9.2% 27.4% I (i.e. above CPI\ 32.6% 10.6°/o: 15.0% 19.6% 19.5% 20.6% Rates are based on a full-time shop assistant with greater than six months service workmg m NSW
As well as increasing base rates of pay, the SDA has been successful in improving other entitlements for employees. Below is a list of examples of entitlements that are typical in SDA Agreements.
NES/Award entitlement Typical SDA Agreement entitlement Minimum part-time hours 3 hour shift per week 10 hours per week and minimum dailv shift 3 hours Work on public holidays May be required to work if Voluntary "reasonablv reauested" Public holidays falling on No entitlement to Public Full-time employees and non-working days Holidays eligible part-time employees entitled to additional paid dav Christmas Eve and New No entitlement unless Voluntary work after 6pm or Year's Eve Work leaislated as a public holiday 7pm Easter Sunday No entitlement unless Voluntary work leaislated as a public holidav Redundancy Employee with more than 10 Higher standard up to 20 years' service- 12 weeks' pay weeks
No reduction in amount after 10 vears' service
15 I Page NESIAward Entitlement Typical SDA Agreement entitlement. Compassionate Leave 2 paid days for the 5 paid days for parents, relatives/household partner, children 3 paid days for other NES relatives 1 paid day for close friend/other relative not in NES Junior Rates 90% or 100% for 20 vr old's 100% for all 20 vr old's Annual leave Nil Timing with Partners Leave consideration considered Domestic Violence Leave Nil (* Union test case in FWC Recognition of issue, use of awarded access to personal personal leave, unpaid leave leave, July 2017). or extra paid leave Permanency of Nil Full time and Part time work emolovment oromoted over casual work Accident Pav No entitlement in Victoria 39 weeks available in Victoria Long Service Leave Double leave at half pay only Double Leave at half pay in a few States/Territories across Australia Safe Transport home Nil If overtime worked Safe transport home to be orovided/ensured Escorts to car for after Nil Employees can be escorted to dark finish cars or move cars closer after dark. Rostering consideration Nil Rostering needs to consider family responsibilities, study responsibilities, safe transport home Limited Tenure Allows employee to fall outside Ensure employee remains rights under Act under the Act. Protections Promotes insecure work given with maximum length 1 yr, no back to back contracts, 1 month minimum Additional leave Unpaid community leave Paid Natural Disaster leave entitlements Paid Blood Donor leave Paid Emergency Services Leave Paid Defence Forces Leave
The SDA has also engaged with companies to design conditions of employment that encourage permanent work over casual employment. Despite being a highly casualised industry, companies with SDA agreements have often had a majority of employees on permanent contracts. Many agreements also contain clauses on casual conversion that allow regular casuals to convert to permanent part-time employment and clauses that enable employees to increase their permanent hours where they regularly work additional hours.
Providing greater security of employment for employees in retail and fast food is an ongoing challenge.
16 I Pa g e Small Business and Enterprise Bargaining
Since the 1990's the SDA has engaged in Enterprise Bargaining with companies regardless of size. The SDA has negotiated numerous agreements with small and medium sized businesses. However as noted previously, wherever legislation has permitted the stripping of penalties and take home pay it has often proven difficult to engage smaller businesses. Below is a list of small and medium independent supermarket agreements that the SDA has negotiated.
Table 2 SDA independent supermarket agreements
Final base rate Sunday Employer Agreement of pay relative penalty rate to award rate Doonside Boys Ply Ltd Rainbow IGA Enterprise 111.0% 50% T/A Rainbow IGA Agreement 2012 Doonside Dunpec Ply Ltd T/A Khan's IGA Supermarkets 111.0% 50% Khan's IGA Certified Agreement 2003 Various employers Independent Supermarkets 106.7% 50% trading as IGA in the ACT ACT Certified Agreement 2010 Romeo's Retail Group Romeo's Retail Group 106.9% 50% T/A Romeo's IGA and Enterprise Agreement 2012 Romeo's Foodland PNO Retail Pty Ltd T/A PNO Retail Certified 105.1% 50% Jury's Supa IGA Plus Agreement 2005 to 2007 Liquor Nambucca Heads Grayson Pty Ltd T/A IGA Grayson Ply Ltd Collective 106.1% 50% Woolqoolqa Aqreement 2007 Strathony Ply Ltd T/A Supabarn Supermarkets 110.6% 50% Supabarn Supermarkets (NSW & ACT) Collective Aqreement 2011 The Fourth Force Ply Ltd Drakes Supermarkets Retail 111.24% 50% and Dramet Pty Ltd T/A Agreement 2012 Drake Supermarkets /Foodland) Palcove Ply Ltd T/A Cheap As Chips (Retail Sa/ 107.05% 80% Cheap as Chips Broken Hill Staff) Enterprise Agreement 2013
Mandurah lga Mandurah lga And SDA 105.4% 50% Aqreement 2010 41gas Queens Supermarket (WA) 105.4% 50% Pty Ltd And SDA Agreement 2010 Albany And Spencer Albany lga And Spencer 105.4% 50% Park lgas Park lga And SDA Aqreement 201 O Cellarbrations Cellarbrations Geraldton, 107% 50% Chapman Road And SDA Agreement 2011
17 I P a g e Template EBA for Small Retailers
In 2015 the SDA's South Australian Branch negotiated a template enterprise agreement with Business SA. The purpose of this was to provide an off-the -shelf template which smaller retailers could access through Business SA, in the knowledge it would pass the BOOT. No engagement with the SDA was necessary for a business to adopt this template.
The template did include a 50% penalty rate on Sundays, a higher base rate of pay (a loaded rate) and enhanced rostering provisions. The template agreement received wide publicity and was hailed by some media outlets as an "historic workplace deal"'. However, several months later it was revealed in the media that the template agreement had not been taken up by any small business in South Australia. Master Grocers CEO Jos de Bruin was reported as saying of the Template EBA "It should [at least] represent the same cost but it doesn't, it's actually more expensive [than the Award]".
This template and the many EBAs with smaller retailers demonstrate that the SDA is prepared to make any agreement that is good for employees and passes the relevant minimum standards set by legislation. Small business have had the opportunity to make enterprise agreements similar to those made with large retailers but often have not taken the opportunity and invariably cite the higher costs associated with the framework of SDA retail agreement.
Arguments that:
(a) A 50% Sunday loading provides a competitive advantage for large business but;
(b) SDA Agreements with a 50% Sunday loading are too expensive and set wage costs above the Award
cannot be run concurrently!
5 The Australian - 24 May 2015 - Historic workplace deal cuts penalty rates
18 I Page 5. Operation and Application of the BOOT (Better Off Overall Test)
In May 2016, there was a dramatic change in the approach of the FWC to agreement making and the application of the BOOT. The Coles 2014 EBA was terminated by a Full Bench in May 2016 on the ground it failed the BOOT Test.
By way of background the Coles 2014 EBA at the time it was set aside provided:
- a weekly base rate of $821 ($99.50, or 13.8%, above the Award rate of $721.50)
- a Sunday rate of 150%
- a midnight to 5am rate of 130%
- a public holidays rate of 250%
- a casual loading of +25% on top of any penalty loading
- 17.5% annual leave loading
Whilst some specific provisions would alter with each new Agreement, the framework of the Coles 2014 Agreement had been endorsed by the Commission for decades, under the Industrial Relations Reform Act 1993, the Industrial Relations Act 1996 and the Australian Fair Work Act 2009. Under all legislative frameworks, the SDA bargained and registered Enterprise Agreements that complied with the industrial law of the day.
The SDA has had numerous Agreements registered under the BOOT as applied by the FWC since 2009. Many of those Agreements had a framework of loaded hourly rates which reflected the buyout of penalty rates in part or full. The May 2016 Full Bench Coles Decision effectively requires each individual employee to be better off on any given shift so the value of any bought out penalty rate must now be transferred back to the actual penalty rate hour as prescribed by the Award.
As a law-abiding union, the SDA will now bargain for outcomes consistent with the BOOT as applied in the Coles Full Bench decision but the SDA does submit that this decision was a significant revolution in how the BOOT has been applied.
Whilst the Full Bench in the May 2016 Coles Decision provides guidance for industrial parties for the future, it is submitted that the BOOT until then had been regularly applied looking at the impact on the workforce more broadly and not on each and every individual employed at the time or potentially employed.
The McDonalds Full Bench Decision of 21 July 2010 in Matters C2010/3643 and C2010/3668 (The McDonalds Decision) clearly demonstrates that BOOT was not being applied as an individual test. The Bench's comments at several paragraphs in the decision are noteworthy:
[53] "We have considered the material regarding the advantages and disadvantages to employees under the Agreement in conjunction with the undertakings given by McDonalds in the proceedings before the Commissioner
19 I Page and updated in the proceedings before us. We consider that the Agreement does contain some disadvantages to employees compared to the content in the reference statements. The disadvantage is minimised in many cases by undertakings given by McDonalds. In other cases, the disadvantage is confined to a small proportion of employees and is the consequence of adopting uniform national provisions or contingent on future events. Some disadvantage exists in relation to the wage rate for some age groups in Western Australia, some allowances, weekend overtime in Western Australia ......
[54] The agreement contains advantages to certain group of employees or generally in relation to the classification structure, the rates of pay, early morning work penalties, hours of work provisions, minimum engagements, overtime rates, redundancy entitlements, casual loadings, junior rates, allowances, salary sacrifice, breaks, annual leave, public holidays ......
[55] We have considered the comparative material which explains the relevant advantages and disadvantages to employees and have concluded that the Agreement does not result on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the Agreement under reference instruments applying to the employees."
This approval framework was clearly based upon the workforce as a whole and not as an individual test.
The SDA does disagree with the 2016 FWC Full Bench decision in Coles in that some of its remarks and calculations concerning rosters were not completely accurate for comparison purposes.
Coles Employee: Roster U
Employee U is the worst case example cited in the 2016 FWC Coles Full Bench decision. The decision lists Employee U as suffering an annual loss in earnings of $3,506 per year.
A reconciliation using employee U's roster that was printed in the decision was undertaken by the SDA. The SDA used the employee's total remuneration package including superannuation, annual leave and Public Holiday non-working day benefits (these must be paid out to the employee)
The time period looked at is the three months immediately before the FWC decision, 13 weeks of work and one week of annual leave that fully accrued in that period.
The SDA reconciliation for the quarter at the time of the Decision shows Employee U better off overall under the 2014 EBA compared to the Award by $459.76. So, over the full year Employee on roster U would be at least $1600 better off and not the $3,506 worse off.
At Appendix "B" is the detail of this reconciliation.
20 I Page Inconsistent BOOT Application
There have been some assertions by commentators in the media that union agreements were somehow waved through by the FWC with little scrutiny and the real attention was on non union Agreements.
This does not stand up to examination.
Research shows many current non-union Enterprise Agreements were approved by the FWC under the 2009 BOOT and in those circumstances the FWC was clearly not applying an individual test. A number of examples are now listed:
Non-union enterprise agreements approved by the FWC:
1) Oporto (Franchising) Pty Ltd- Enterprise Agreement 2013-2017
Approved 9 July 2013- Expiry 1 April 2017 Base hourly rate+ $0.28 (+1.5%) above FFIA No weekend penalties No late night penalties No public holiday penalty No Annual Leave loading
2) Oporto Carillon Enterprise Agreement 2014
Approved 30 October 2014- Expiry 1 June 2015 Base hourly rate+ $0.29 (+1.5%) above FFIA No weekend penalties No late night penalties No public holiday penalty No Annual Leave loading
3) El Restaurant Services Enterprise Agreement 2014
Approved 30 June 2014 - Expiry 6 July 2018 Base hourly rate+ $2.26 (+12.5%) above FFIA No weekend penalties for Monday to Sunday employees No late night penalties Public holidays +71% for permanent Monday to Sunday employees No Annual Leave loading
4) Wok in a Box Holdings Pty Ltd Enterprise Agreement 2014
Approved 22 August 2014- Expiry 28 August 2018 Base hourly rate+ $1.53 (+8.2%) above FFIA No weekend penalties No late night penalties 150% public holiday penalty No Annual Leave loading
21 I P age 5) Ba/main Gelataria Pty Ltd 2015-2018 (AG2014/706) Approved 7 May 2014 Base hourly rate $18.41 p.hr (+0.43 p.hr or +2.4%) above the Fast Food Industry Award upon registration. No weekend penalties No public holiday penalties
6) Inn Fast Food Enterprise Agreement 2015 (AG 2015/7569)
Approved 21 December, 2015 - Expiry 21 December 2019 At approval base rate 8.5% above the Fast Food Award Base hourly rate + 3% higher than the FFIA as per Clause 8, from 2"' year of agreement. No weekend penalties No late night penalties No Annual Leave Loading No Laundry Allowance Full time and part-time employees can be required to work Public Holidays without penalty rates applying. some undertakings with respect to Sunday rostering but not strong
7) PA Enterprise Pty Ltd tlas Gloria Jeans G/encore Park 2014-18 (AG2014/8829)
Approved 8 December 2014- Expiry 1 July 2018 Base hourly rate $1.25 above (+6.7% above FFIA) Includes Introductory rate $0.20 above award (for 3 or 6 months) No weekend penalties No late night penalties 150% rate for Public Holidays via undertakings.
8) Schnitz HR Enterprise Agreement 2015 (AG 2015/5032)
Approved 9 November 2015 - Expiry 1 June 2019 Base hourly rate+ $1.71 (+9%) above FFIA No weekend penalties No late night penalties Public holidays + 150% via undertakings No Annual Leave loading
9) The Swan View /GA Agreement 2015
- Approved 22 April 2015 - Expiry 26 February 2019 Base hourly rate+ $1.50 (+8.1%) above GRIA
22 I Page 50% penalty for Sundays and 10% loading for Saturdays - 20% penalty for late nights 100% public holiday penalty No Annual Leave loading
10) Boost Shreeji Juice Pty Ltd Enterprise Agreement 2015
approved 2 March 2016 to 2 March 2020 - There are no Saturday, Sunday or late night penalties EBA's base rates being 12.43% to 15.81% Public Holiday rates in excess of FFIA - Annual leave loading 11.2%
11) Deli Devine Enterprise Agreement 2015
- approved 22 September 2015 to 30 May 2019 Base rate $19.95, GRIA rate $18.98 - 20% casual loading - 4 hour shift - no break (GRIA - 10 minute break) Saturdays - 10% loading, (casuals 20%) Public holidays 200% (Permanents and casuals) - an employee required to perform regular work on a Saturday, Public Holiday and evenings. The company will ensure that the employee is better off when compared to the award. Further issue no definition of regular i.e. one off work doesn't need to be better
It is submitted that the above non-union Agreements appear to set standards well below what the Coles and other Union Agreements contain.
23 I Page 6. Complexity of The Penalty Rate Debate
The SDA has sought to protect its members through decades of attacks on penalty rates and numerous changes to the legislation it is not surprising that people get confused This year in the Senate, Senator Seselja demonstrated such confusion when he incorrectly stated in Parliament that: "They sold me out on penalty rates. I think we got time and a half in the Nineties on a Sunday. I was young. I was 19 and I joined the SDA in good faith, hoping they would do me a good deal. It turned out like so many others in the union movement and like Mr Shorten: they sold me and thousands of other workers out as well"
The following tables set out what Senator Seselja would have received if he was a casual or a part-time employee. In both circumstances, he would have been receiving more under his SDA Agreement than under the relevant Award.
1996 rates of pay Comparison of ACT Retail & Wholesale - Shop Employees Award with the Retail Supermarket Industry - Woolworths - NSW/ACT Agreement 1995
Part-time Rates
Base rate of $8.58 $9.04 $0.46 5.4% pay
Sunday rate 50% $12.87 50% $13.56 $0.69 5.4% of pay
Casual Rates
I i . -.
Base rate of 15% $9.86 22% $11.03 $1.1 7 11.8% pay
Sunday rate of time and a $14.80 time and a half $15.55 $0.75 5% pay half of the of the casual permanent rate rate plus casual loading
24 I Page Enterprise Awards
The 'Review of the Wage Fixing Principles 1993' set the 'Principles' for the making of Enterprise Awards. Where Enterprise Awards were created, they became the relevant benchmark for measuring no disadvantage and would later be used as the relevant instrument when assessing BOOT from 2009 until December 2013.
Whilst the SDA had argued that all such enterprise awards should cease to exist upon commencement of the Modern Awards (1/1/2010). the Commonwealth Government determined that they could continue to operate until 31/12/2013. There were over 37 Enterprise Awards operating in retail and fast food.
Despite what the SDA regarded as clear legislative intent there were challenges to the 31/12/2013 expiry (or modernisation) date for Enterprise Awards.
KFC applied to the FWC in 2010 and in proceedings before the Full Bench of the Commission ([2011] FWAFB 1078) sought to retain its Enterprise Award. The Company's objective was to create a benchmark modern award that would supplant the Fast Food Industry Award for BOOT and other purposes. The SDA opposed the application and reciprocally applied to terminate the existing Enterprise Award pursuant to item 5 of Schedule 6 of the Transitional Act.
After losing the case before the FWC Full Bench KFC sought a judicial review before a single judge in the Federal Court (NSD428/2011 ). Following this decision KFC appealed in the Full Federal Court (NSD2251/2011) but again lost and was ordered to pay costs to the SDA.
It's Not a Retrospective Test
It is a factor that is lost or misrepresented deliberately by parties that current agreements in place today were not necessarily tested against the Fully implemented Modern Award.
The appropriate underpinning awards for BOOT purposes could have been an Enterprise Award (up until December 2014) or a State Award/Federal Award under transition to the Modern Award rates and penalties (transition completed July 2014).
One example is the McDonald's Australia Enterprise Agreement 2013. The Agreement was approved by Commissioner Bull on 24 July 2013. The agreement was tested against various Awards which were not the Fast Food Industry Award. The following are the awards it was tested against: Enterprise Awards:
McDonald's - Shop, Distributive and Allied Employees' Association - Victoria - Award 2004 Restaurant Industry- McDonald's - South Australia I Northern Territory-Award 2000 Restaurant Industry- McDonald's -Australian Capital Territory-Award 2000 McDonald's - Shop, Distributive and Allied Employees' Association - NSW-Award 2006
State Awards Transitioning to Fast Food Industry Award Fast Food Outlets Award 1990 (WA) Quick Service Food Outlets (QSFO's) Award - State 2004
25 I Page 7. Detrimental Provisions Requiring Amendment
The current industrial relations system has a major flaw that disadvantages employees and their entitlement to the full and proper effect of the Modern Awards that apply to employees throughout Australia. The SDA has concerns with 2 areas that causes disadvantage to employees: a. Terminating Expired agreements (EAs past there nominal expiry date) and
b. Current agreements that no longer pass the BOOT test
There are two further sub-categories of agreements the SDA addresses in this section:
Agreements made pre-Fair Work Act and
Agreements made since the Fair Work Act came into operation.
Expired Agreements
Expired Agreements Continue
Under the Fair Work Act 2009 an expired agreement (Collective or Individual) continues to apply after its nominal expiry date. Wage increases will not apply to an expired agreement unless the base rate of pay falls below the relevant Award rate (see FWA s 206).
Terminating Expired Agreements
Employees working under expired non-union agreements have two options for remedying this situation. The first is to convince their employer to negotiate a new enterprise agreement. This is difficult for employees, particularly in a non-unionised workplace. Employers have little incentive to bargain a new agreement when their current agreement allows them to legally pay substantially below the award penalties. The second option is to apply to terminate the agreement. Under the Fair Work Act 2009 an employer, employee or employee association covered by the agreement may apply to the Fair Work Commission to terminate the agreement. The SDA can apply to terminate an agreement but only where it is bound or a party to the agreement. This means the SDA does not have standing to terminate a non-union agreement. It is therefore up to individual employees to apply to terminate an expired agreement. In the SDA's experience, employees are rarely willing to apply in their own name to terminate an enterprise agreement for fear of being targeted by their employer. Even where the SDA has members covered by an agreement, if the SDA is not covered by the agreement, an individual employee must still volunteer as the applicant to terminate the agreement. A further problem in the current system is the identification of expired agreements that apply in an industry. Agreement names do not need to disclose the trading or operating name.
26 I Page Many agreements use the registered business name or holding company name or family company name which bears no resemblance to the actual operation. For example, an agreement called 'Khans Group Employee Collective Agreement 2006' does not indicate the precise nature of the operation or work-site(s) that it covers. This agreement actually covers some !GA supermarkets.
This methodology makes it hard to identify an agreement that covers a Retail or Fast Food operation and the precise store(s) it covers. This is also further complicated as the scope of the agreement probably also fails to identify the actual or commonly named operation.
This all means that there are many agreements that are expired but cannot be readily identified by the SDA for termination. The SDA also cannot in its own right make application to terminate non-union agreements that apply in Retail and Fast Food.
Case study: Employment Innovations Pty Ltd Enterprise Agreement 2010
Employment Innovations Pty Ltd operates as a labour hire company across a number of industries including retail and fast food. In July 2010, the Fair Work Commission approved the Employment Innovations Pty Ltd Enterprise Agreement 2010 to cover employees working for the company in the retail, fast food, hospitality and clerical industries.
The agreement offered a base rate of pay of $17.68 for a retail shop assistant, $1.32 (8.0%) above the relevant award rate. The agreement provided for some modest wage increases, depending on the classification. The agreement provided very few entitlements to employees above those required by the national employment standards (NES). There were no penalties for weekends, nights or public holidays.
The agreement nominally expired on 29 July 2014. By the time the agreement expired, the shop assistant rate in the agreement had already fallen below the award rate. The company was required to pay the award base rate of pay but not the award penalties. After July 2014, employees covered by this agreement continued to receive wage increases only in line with the award increase, but the employer has continued to avoid paying penalty rates.
The SDA has recently applied to terminate this agreement and the matter is currently before the Fair Work Commission.
Agreements Made Prior To The Fair Work Act
When the Federal Government abolished Work Choices and passed the Fair Work Act some employees were left trapped in the Work Choices system. These include employees on Australian Workplace Agreements (AWAs), employees on Individual Transitional Employment Agreements (ITEAs) and employees under collective agreements made prior to the Fair Work Act. These instruments may continue indefinitely and employees may be suffering substandard wages and conditions when compared to the new modern awards. They have never been tested against the new modern awards. In some cases there was no real test done.
27 I P a g e The Act does not provide any easy avenue to rescue the last of the employees on the Work Choices system. They need to be dealt with now. The SDA proposes to deal with these agreements using an automatic FWC review process so that the last remaining employees on Work Choices are moved fully into the Fair Work environment.
As discussed earlier there are difficulties in terminating expired agreements.
The Fair Work Act commenced on 1 July 2009. However various provisions commenced at a later date such that the full transition to the new system was not complete until 1 January 2015. The outline below shows the phasing in:
1 July 2009 Fair Work Act commenced 1 January 2010 National Employment Standards and modern awards commenced (except for the new classification systems, rates of pay and penalty rates) 1 July 2010 New classification systems in modern awards commenced and 20% of the change in classification rates of pay and penalty rates apply 1 July 2011 40% of the change in classification rates of pay and penalty rates apply 1 July 2012 60% of the change in classification rates of pay and penalty rates apply 1 July 2013 80% of the change in classification rates of pay and penalty rates apply 31 December 2013 Enterprise awards cease to exist if not modernised 1 July 2014 Full Classification rates of pay and penalty rates apply 31 December 2014 Awards based on the conciliation and arbitration head of power in the Constitution rather than the corporations power cease to exist.
This demonstrated that the process of phasing in the full effects of the Fair Work Act was not complete until 1 January 2015.
The process of transitioning the last employees out of Work Choices agreements and onto the full Fair Work system should also now occur as it is wrong to allow a system to permit sub standard arrangements remaining in place.
AWAs AND /TEAS
All AWAs and ITEAs made under Work choices have passed their nominal expiry date (April 2013 was the latest expiry date). The Government should legislate that every AWA and every ITEA shall cease to have effect as of 1 January 2018.
Recommendation The Government should legislate that every AWA and every ITEA shall cease to have effect as of 1 January 2018.
28 I Page Collective Agreements
There continue to exist a range of union and non-union collective agreements in existence made under the Howard Government legislation. Some were made under Work Choices. It is possible some were made under even earlier legislation. All employees should now enjoy the full benefits of the Fair work system.
The last agreements made before the Fair Work Act took effect were on 31 December 2009. (The NES and modern awards commenced 1 January 2010.) The maximum length of an agreement at that time was 5 years. So, all pre-Fair Work Act enterprise agreements have expired (the latest date was 31 December 2014). Some employers have chosen to stay under old expired agreements to protect themselves from increases under the Fair Work system.
Case study: Khans Group Employee Collective Agreement 2006
The Khan's group of companies operates approximately 10 IGA supermarkets across NSW. In 2006 the Khans Group Employee Collective Agreement 2006 was approved under Work Choices.
The agreement when approved provided a base rate of pay of $15.35 for a shop assistant, $1.08 (7.5%) above the award rate. There were no wage increases in the agreement. There were higher rates for Sundays and public holidays, but these were expressed as a flat dollar amount, not a percentage of the base rate of pay, so they did not increase if the base rate increased.
The award rate of pay caught up to the agreement rate of pay in 2008. Khans Group were required to pay employees the award base rate of pay, but the low flat dollar amounts for Sunday and Public Holidays remained unchanged.
The agreement nominally expired in 2011. The SDA was not covered by the agreement, so the SDA had no standing to terminate the agreement. It needed an individual employee to do so. The SDA wrote to its members in the Khan's group to encourage them to talk to the SDA about terminating the agreement, but no employee came forward.
In 2015 an employee finally approached the SDA about terminating the agreement and with the SDA's assistance the employee applied to FWC to terminate the agreement. When the agreement was terminated in April 2015 the Khans Group had been avoiding award entitlements of proper penalty rates for seven years.
Alternatively, some pre-existing agreements may provide an improved standard of redundancy pay or improved long service leave. To abolish them would disadvantage employees. It would be unwise to treat all pre-existing agreement made under Work Choices or earlier legislation in the same manner as AWAs. It may result in serious disadvantage to employees. The better approach is to apply the BOOT test to all these agreements and retain them if they pass.
It is proposed that all collective agreements made prior to 1 January 2010 should now be reviewed as the latest expiry of any of these agreements was 31 December 2014. The BOOT test should be applied against the modern award. If any such agreement fails to pass the
29 I Page BOOT test, the Fair Work Commission will cancel the agreement after consultation with the relevant parties. If FWC decides the agreement fails the BOOT test it shall be given the power to make appropriate transitional provisions to the award (or to an enterprise agreement if one exists) over a short timeframe e.g. six months.
Those agreements that pass the BOOT test shall then be reviewed every three years and FWC shall again apply the BOOT. If they fail BOOT then they should be terminated by FWC after consultation with the parties.
This will see all collective agreements made prior to the Fair Work Act tested against the BOOT. In this way all employees and employers will be able to transition onto the Fair Work Act and receive the benefits of the Fair Work Act.
No-one should continue to be left out of the new system.
Recommendation All collective agreements made prior to 1 January 2010 shall be reviewed and shall have the BOOT test applied against the modern award. Any agreement which fails shall be cancelled by FWC after consultation with the relevant parties. FWC shall have the power to make appropriate transitional provisions to move employees to the award over a reasonable period e.g. six months maximum. Expired Agreements that pass the BOOT test will then be reviewed every 3 years against the BOOT test. If the agreement fails FWC shall have the power to make appropriate transitional provisions to move employees to the award over a reasonable period e.g. six months maximum.
Agreements made under FWA The issues that occur with expired agreements made prior to the FW Act are being perpetuated or will be perpetuated again with expired agreements that have been made under the FW Act. To ensure this problem is addressed agreements need to be reviewed once their expiry date has been passed.
Recommendation
All other collective agreements made under the FWA shall be reviewed 12 months after the nominal expiry date. The BOOT test will be applied. Any agreement which fails shall be called on by FWC and the relevant parties asked to make submissions. FWC shall have the power to make appropriate transitional provisions or cancel the agreement.
30 I Page Current Agreements
The Fair Work Act 2009 allows employers to implement an agreement without pay increases which passes the BOOT at approval time. Over time however the relevant base rate in the award can catch up to the rate in the agreement, extinguishing employee benefits that existed at the start of the agreement. The result is employees could be paid the award base rate without the award penalties. This allows employers to legally avoid award entitlements such as the value of penalty rates.
Recommendation
All collective agreements shall be reviewed by FWC when the agreement rate becomes the Award rate. The BOOT test will be applied. If the agreement fails the BOOT test, FWC will notify parties to the agreement and parties will be bound to explore possible remedies. If no remedy is implemented, then the agreement will be terminated and the Modern award applied.
31 I P a g e 8. Enhancing Compliance Through Bargaining
The poor level of compliance in the non-union areas of the retail and fast food industries has been widely reported in recent years. Enterprise bargaining with a union party has a significant positive effect on lifting compliance levels inside companies. Regular meetings between Union and Company representatives at various levels, an enterprise Agreement which all parties have ownership of, experienced workplace Union Delegates and more open workplace cultures all add to greater levels of compliance. Whilst the franchising model does bring added challenges, the more direct the union involvement the better compliance outcomes will be. An Enterprise Agreement £1!.!! drive improved compliance. Often the underpayment of wages arises from the intersection of visa restrictions with poor compliance procedures in a franchising model. The ?-Eleven scandal is probably the best known but unfortunately is by no means the only one. The existing provisions of the Fair Work Act do not permit a union to conduct time and wages inspections - as legislation in the past allowed - unless a member's name is specified. Employees who find themselves the victims of wages scandals are extremely reluctant to come forward and put their name to a wage claim and unscrupulous employers take advantage of this reality. The problem of wage exploitation is now occurring on a growing scale in the 'gig' economy as the work of Unions NSW is uncovering. In its "Lighting up the Black Market - Enforcing Minimum Wages (Unions NSW, July 2017)" 78% of online job advertisements translated from three languages were underpaid - at an average of $5 per hour below the legal minimum. Cleaning, hospitality and retail sectors were the worst affected industries. The paper was based on audits conducted in March 2016 and April 2017 and unfortunately the prevalence of underpayment worsened in that 12 month period.
Union Industrial Support Enhances Compliance The SDA distributes industrial advice to hundreds of thousands of members each year through a variety of media channels (letters, emails, text messages, website, social media Union Journals etc.) on their rates of pay, workplace rights and membership benefits. Knowledge is a critical element of ensuring someone receives their correct rate of pay, receives their breaks at work, knows their health and safety rights and knows where to seek proper redress when they or their colleagues are not being treated fairly. A snapshot of what an SDA Branch provides in Industrial support is now set out:
32 I Page MEMBER SUPPORT TEAM
Over the past 12 months we dealt with over 3158 enquiries in Retail and Fast Food- not all have led to open cases. (86% of these came from retail workers and 14% came from fast food workers).
Union representatives and Organisers submitted over 500 case manager referrals and we received over 591 enquiries online.
ENQUIRIES RECEIVED IN THE PAST 12 MONTHS: 3,158
Retail: 2,716 cases Fast Food: 442 cases
TYPES OF CASES
Breaks 1 66
Bullying, Harassment, Discrimination
Warning, Counselling, Meetings 326
Hours and Rostering 843
Leave
OHS and Workcover
Pay and Payrates 535 I Public Holidays - Termination of Employment 112
These statistics are from the median sized SDA South Australian Branch - this support is replicated in Branches across the country.
33 I Page 9. Conclusion
The past 35 years has seen unrelenting extensions to retail trading hours and during the last 25 of those years this has occurred concurrently with radical industrial law reform by Liberal/National Party Governments targeting lower paid Australians. During this tumultuous period the SDA has intelligently and determinedly navigated a path to secure proper protections and good industrial outcomes for its members and all those who work in retail and fast food. The SDA's Enterprise Bargaining has been a central plank in successfully defending the take home pay of Australian retail and fast food workers during this period. Defending and advancing Award wages and conditions has been the other important plank in protecting employees in these two major industries. The passing of WorkChoices in 2005 threatened the very existence of our Award system but the Australian trade union movement and the Australian people refused to allow this to happen and rejected WorkChoices at the ballot box in 2007. The SDA rejects claims that large employers have somehow received a competitive wage advantage over smaller businesses through enterprise bargaining in the industries covered by the union. History has shown that in a deregulated labour market it is small business that quickly takes advantage of the opportunity to cut wage costs. History also shows that even when enterprise bargaining is made readily accessible to smaller businesses few take it up if wage costs are maintained or enhanced. Wages must be understood as take-home-pay over a roster cycle, a month, a quarter or a year. Retail and fast food businesses operate across 7 days of the week and are also subject to seasonal variations so any logical examination of wage costs must be made across appropriate time frames. Disingenuous arguments which call out rates on specific days in an enterprise agreement, but completely disregard the higher wage rates paid at other times across the roster cycle should be rejected as self-serving. Enterprise bargaining in Australia, including in the retail and fast food industries, has often utilised loaded rates which transfer the value of some penalties into the base rate of pay. These loaded rates have been a part of the Australian industrial relations landscape for decades and the underlying reference point has always been 'take-home-pay' of employees. If greater compliance and inspection powers were restored for industry unions like the SDA, then the take home pay of employees in the non-union sector would receive a significant lift. The SDA has been a union that has remained diligent in its Award work even as the focus of our IR system turned to enterprise bargaining in the 1990's. It has been the effective pursuit of this two-pronged strategy that has resulted in Australian retail workers being amongst the best paid in the world.
341Page {/\ The table below shows the ranking of the average retail industry wage on a PPP equivalent basis for the 13 countries in the st udy. Key observations Average monthly Ranking Country retail industry wage (PPP) (USO) • Australia ranks 2nd out of 12 countries when comparing the average monthly retail industry wage on a PPP equivalent basis. D $0 ~ In reviewing the findings. SDA may wish to consider the following in relation to Denmark ·s ranking: 2 Australia I $4,054 - Denmark has a high sales tax (-25%) and a high net average 3 3 I Germany $3,592 tax rate (-35.9%) aga inst comparable countries. However. company tax is low against comparable countries. As a result, 4 I USA $3,033 employees may demand a higher wage to support a I comparable standard of living and employers may have the 5 I Japan $2,723 resources to pay employees a higher wage. • Income differences across industries are low in comparison to 6 I New Zealand I $2,656 comparator countries. Retail industry workers have a comparable wage with many other industries in Denmark. 7 I Canada $2,440 .. Denmark does not have minimum wage laws but has a high 8 I Britain1 $2,025 level of trade union membership. A significant proportion of I Denmark's (minimum) wages are negotiated t hrough unions. 9 I Hong Kong $1,644 This may lead to improved results for the retail sector employees. 10 I Spain $1,633 11 I South Africa $341 12 Russia $755 N/ A Czech Republic2 N/A 1 As PPP dala 1s not available for Bnta1n. 11,e PPP conversoon for Bntaon os based on the United Kingdom PPP data 3 Figures derived from the OECD. The average single worker nel average tax rate across lhc OECD was 25.5% relative to Denmark"s 35.9%. 2 Purchasing power parity data not provided. _ Page 6 Copynght © 2016 Ernst & Young Australia All Rights Reserved LmbIhty limited by a seheme aoproved under Professional Standards LegIslat1on EV February to June 2016 comparison: 2014 vs Award APPENDIX "B" Coles Employee U - Better Off Under The Coles EBA Employee U is apparently the worst case example used in the FWC decision of not being better off overall, with the decision listing them as suffering an annual loss in earnings of $3,506 per year. Below is a reconciliation using employee U's roster that was printed in the decision to see whether they are better off overall or not based on their total remuneration package including superannuation (both the EBA and Award have superannuation clauses) and only accrued leave that must be paid to the employee (ie annual leave and non-working public holidays, but not personal leave, blood donor leave etc). The period looked at is the three months immediately before the FWC decision, 13 weeks of work and one week of annual leave that fully accrued in that period. Quarterly Reconciliation 29/2/16 - 5/6/16 (14 week period): Number of Type of Rate of Total pay Number Type of Rate of Total pay hours Awd hours pay Awd for hours of hours hours EBA pay EBA for hours Awd Awd EBA EBA (14h x 13) 100% $18.99 $3,456.18 (28h x 100% $21.605 $7,864.22 13) (6h X 13) 125% $23.74 $1,851.72 (7h x 13) 150% $32.40 $2,948.40 (4h x 13) 200% $37.98 $1,974.96 (1hx13) 200% $43.21 $561.73 (8hx13) OT 150% $28.49 $2,962.96 (4hx13) OT 200% $37.98 $1,974.96 Quarterly $12,220.78 $11,374.35 pay Difference -$846.43 in weekly wages 13 weeks Annual 24 hours $560.22 2.77 36 hours $1,011.06 leave hours accrual on ord hrs including leave loading/ $12,781.00 $12,385.41 penalties C:\Users\sda.fiona\Autotask Workplace\Data\lNDUSTRIAL\Fair Work Act\Penalty Boot\Submission\Final Submission\Appendix B.docxl I Page February to June 2016 comparison: 2014 vs Award APPENDIX "B" Number of Type of Rate of Total pay Number Type of Rate of Total pay hours Awd hours pay Awd for hours of hours hours EBA pay EBA for hours Awd Awd EBA EBA Non- (7.2h x 3) 100% $21.605 $466.66 rostered public holiday benefit Labour Day, Easter Mon & ANZAC $12,852.07 Day $12,781.00 Difference $71.07 in total wages payable for the 14 week period With Super $691.87 $1,080.56 of 9.5% on ordinary hours $13,472.87 $13,932.63 Difference $459.76 including superann uation paid Difference $459.76 on total quarterly Better off remunerat ion A quarterly reconciliation for the quarter at the time of the Decision shows Employee U better off overall under the 2014 EBA compared to the Award by $459.76. In this quarter Employee U received three additional days pay for non-rostered public holidays. Across the year, based on Employee U's roster, they will be paid 8 additional days pay for non-rostered public holidays, with at least one non-rostered public holiday payable to Employee U in each quarter of this year. C:\Users\ sda.fiona\Autotask Workplace\Data\lNDUSTRIAL\Fair Work Act\Penalty Boot\Submission\Final Submission\Appendix B.docx2 I Pa ge sda at work with you COVID-19: SDA 10 Point Health & Safety Plan SDA calls for ALL retailers to put 10 health & safety measures in place to protect you Your safety must come first. Your health must not be put at risk during this time. The SDA is engaging major companies on arrangements being put in place to keep workers safe during the pandemic. On top of measures already introduced the SDA is calling for retailers to: 1. Promote ‘cash free’ and accept card payments. 2. Install plexiglass screens at cash registers to protect workers who cannot keep at least 1.5 metres from customers. 3. Ensure social distancing measures are in place and enforced including display of signage, floor markings, register use and the regulation of customer numbers. 4. Ensure hand sanitiser approved by the Health Department is readily available to all staff. (Current standards require at least 60% alcohol content) 5. Provide workers with gloves and personal face shields where requested. 6. Provide bags free of charge for each purchase to avoid handling of customer bags. No use of customers’ used bags unless the customer bags it themselves. 7. Continue to increase security to assist in enforcing social distancing, customer volumes, purchase limits, access limits and in dealing with unreasonable customers. Police resources may also need to be deployed to protect workers. 8. Ensure regular cleaning and sanitization of the workplace, including workstations, personal protective equipment and individual vests in self-serve checkout areas. 9. Take a zero-tolerance approach to customer violence and abuse. 10. Publicly promote the SDA’s No One Deserve A Serve campaign to improve customer behaviour. We continue to call on the community to show all retail workers the respect they deserve during this time, there is no excuse for abuse and violence. If you experience an abuse or violence from a customer, report it. You can also help by sharing our No One Deserves A Serve Community Service Announcement calling on customers to be patient and respectful. Keep up to date with information at www.national.sda.com.au/coronavirus.