SDA Submission in Reply to Senate Inquiry Into Unlawful Underpayment of Employee's Remuneration
Total Page：16
File Type：pdf, Size：1020Kb
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 Page 1 of 14 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. Page 2 of 14 [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 Page 3 of 14 $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 Page 4 of 14 protected our members but increased base rates of pay as well as securing a number of significant employee benefits.