The Australian, February 18, 2017, Grace Collier:
Penny Vickers, 42, of Brisbane, spends her days in unremarkable ways. She drives her two children to school or wherever else they need to go, listens to them chatter and drenches them with as much love as she can. In between, she does the shopping, cooks, cleans the house, puts on, hangs out and brings in again umpteen loads of washing, and tries to spend time with her husband when he returns home from his job in town.
A few evenings a week, Penny does something more. After the children have been fed, bathed and put to bed, when the dishwasher is stacked and the kitchen floor is swept, she drives down to the supermarket, where she stacks shelves until midnight.
To most, Penny seems like an ordinary person, a wife, a mother, a worker, living an ordinary life. But in between other duties, for hours at a time, Penny can be found attending to an extraordinary task of national significance; poring over documents, crafting arguments and writing submissions for upcoming Fair Work Commission hearings.
Since June 2015, Penny has taken on both her union and her boss for signing an enterprise bargaining agreement that pays her and many of her co-workers less than the minimum wage. Penny has an application before the commission to have this EBA terminated and all the workers paid under it put back under the award.
It will take another year or so, but by the time Penny is done, Australia’s largest union will be disgraced, corporate and legal reputations will lie in tatters, we will see the largest back pay claim in our nation’s history and our industrial relations landscape will be changed forever, for the better.
This is a gargantuan fight, with hundreds of millions of dollars at stake, but mainly this is about finally putting an end to the dodgy deals. Penny is self-represented, and up against a big business, a big union and all their big, swinging-dick lawyers. But I’ve got my money on Penny; she is a clever, strong and determined woman. I can’t see how she can lose.
I’ve never understood why enterprise bargaining is hailed as a great reform. For the most part, I think it has been hugely damaging and a grand con. EBAs are mostly unnecessary and the bargaining process counterproductive. With rare exceptions, there is no cost-effective and simpler way for an employer to employ someone than under the award, with above-award payments where desired. Naturally, this practice requires good management and high levels of trust from staff.
For decades, employer groups and unions have pushed their enterprise bargaining barrow. In the EBA-making business, there is big money to be made. Many employer groups and unions jointly run union-owned businesses that harvest money from employers when complying with EBA clauses. Poor EBAs can destroy businesses and shaft workers, but unions and employer groups always do well out of them. Naturally, they want to keep the system going.
In recent times, a royal commission examined past EBAs. The dodgy Cleanevent EBA, from years ago, was denounced, quite rightly. However, the EBA that Penny is trying to have terminated is far worse. It is being applied now and there are greater numbers of workers being shafted, yet barely anyone seems interested. The union and the employer, you see, have done a great job at misleading the public, and many have fallen for their deceptive arguments.
Business Council of Australia chief executive Jennifer Westacott is also a non-executive director of Wesfarmers, which owns Coles. On February 2 this year, Westacott penned an opinion piece for Fairfax in defence of the Coles EBA, which is the EBA Penny is working to terminate. Westacott’s piece was, in my opinion, disgracefully misleading, and leads me to the lines being trotted out by various parties.
One line is that the EBA simply traded off penalty rates for a higher hourly rate, and isn’t that good? It can be, yes, providing a worker trades off their own penalties and not someone else’s.
For example, if Jack trades off his penalty rates for a higher hourly rate for him, that is great. But if the union trades Jill’s penalties so Jack gets a higher hourly rate but Jill doesn’t, and then Jill receives less pay than what she would get if she were under the award, then it is not. This is not lawful, and yet this is what happened at Coles.
At Coles, one class of worker has had their penalty rates reduced and is now earning below the minimum wage, while another class of worker has had their hourly rates increased.
To ensure that employers and unions don’t do deals like this, the commission has always applied a “better off overall test” before it approves an EBA.
When the FWC approved the Coles EBA, it erred. Statutory declarations lodged by the union and the employer swore the BOOT was satisfied and that all workers would be better off than under the award. Yet now the commission has confirmed Penny earns less under the EBA than she would under the award. In Penny’s estimation, so does a sizeable percentage of the workforce.
This is why Penny will win her case. It is simply a matter of looking at employee rosters and making the monetary comparison between the award and the EBA. Plus, already a union official has admitted on transcript that the union knew that numbers of employees would be worse off.
Westacott complains about the “current” interpretation of the BOOT, as though this interpretation is new. It is not. The test has always been applied to workers as individuals and never to the workforce as a whole.
Westacott wants “sensible changes” so the test is made a “truly overall assessment”. Do we really want EBAs to be done where some workers are paid below the minimum wage as long as others are paid more, and do we want unions taking a benefit for the privilege of their signature?
In the past five years the number of EBAs lodged with the commission for approval has dropped by more than 35 per cent.
Over the next decade, the big money will be made by those who know how to get businesses out of the bargaining system and back on to the award, while creating a high-trust relationship with an engaged workforce.
In the meantime, Penny continues her case, with my full support. I promise to keep you updated, so that when she wins you can celebrate with her.
For those who think that penalty rates shouldn’t be paid anyway, I remind you this is no excuse for flouting the law. Further, why should we allow the union, the Shop Distributive and Allied Employees Association, to give Coles a dodgy deal that isn’t given to, say, the IGA? Isn’t that anti-competitive, a distortion of the market? Coles has admitted there has also been money changing hands between the parties, for training —
so then, isn’t that corrupt?