A dodgy enterprise agreement signed by Coles and the Shop, Distributive and Allied Employees Association (SDA) has been overturned on appeal by the Fair Work Commission.
A full bench of the commission determined that the agreement did not pass the "better off overall test", because workers employed during hours where penalty rates apply under the award can be substantially worse off under the agreement.
The commission dismissed the counterarguments of Coles and the SDA, which relied on the absurd proposition that access to Defence Forces Leave and Blood Donor Leave compensated for the loss of penalty rates which put some workers thousands of dollars a year out of pocket.
The commission has suggested that Coles implement a reconciliation clause that compensates employees disadvantaged by the inferior pay rates under the agreement. Coles has until 10 June to respond or the agreement will be quashed.
This is a victory for our argument that a slightly higher base rate or pay does not compensate employees for the abolition of penalty rates. It is a major blow to the argument that the reduction of penalty rates can be “beneficial” to both workers and bosses – a proposal being aired by government and employers right now to justify cuts to Sunday penalty rates.
The successful appeal is a repudiation of the cosy deals that the SDA signed with Coles and other large employers across the retail and fast food industries. Hundreds of thousands of workers – at places such as Woolworths, McDonald’s, Big W, K Mart, Target and Bunnings – are employed under similar agreements to the Coles one.
The decision also highlights the systemic failure of the Fair Work Commission to address the frequency of these below award agreements. At Coles alone, 77,000 workers have been robbed of tens of millions in penalty rates that they are entitled to under the General Retail Award.
That it took an appeal by me (a Coles employee) and the meatworkers’ union to have the deal properly evaluated is telling. The purpose of the Fair Work Commission is to ensure the smooth operations of business, meaning that it is only when workers threaten this or raise a fuss, as happened in this case, that injustice can be combated.
This is just the beginning for retail and fast food workers to fight for our legal entitlement to penalty rates in our industry. In so many cases they are not paid, often due to unholy deals between the SDA and the bosses.
While workers still have to wait until 10 June to know exactly what the result of today’s decision will be, it is clearly a victory for Coles workers and every other worker entitled to penalty rates and award conditions.