The Australian, December 31, 2016
The Fair Work Commission has approved a workplace deal cutting Sunday, public-holiday and late-night penalties in exchange for bakery workers receiving higher base pay, sparking a legal challenge by the shop assistants union.
Beechworth Bakery managing director Marty Matassoni yesterday criticised the union for appealing against the approval of the deal that applies to 232 workers at six sites in Victoria and NSW.
“It’s heartbreaking and disappointing,’’ Mr Matassoni said. “It’s been a very thorough exercise from everybody involved to ensure everyone who is covered by the agreement is better off.’’
But the Shop, Distributive and Allied Employees Association said approval of the deal, which also cuts overtime rates and scraps annual leave loading, contradicted the commission’s rejection in May of a similar agreement proposed by Coles.
“The Beechworth decision is inconsistent with the May 2016 Coles full bench decision and on that basis the SDA is intending to appeal the approval of the Beechworth (enterprise bargaining agreement),’’ union national secretary Gerard Dwyer said.
Commission deputy president Peter Sams said the Beechworth deal could be approved because, unlike Coles, the bakery had given written undertakings that addressed concerns that individual workers would be worse off when the agreement was compared with the restaurant industry award. Under the deal, bakery workers would receive increases in their base pay ranging from 2.33 per cent to 18.33 per cent.
The SDA said the pay rises did not compensate for reduced weekend penalty rates, the loss of late-night penalties, reduced public holiday and overtime rates, the scrapping of allowances and the abolition of annual leave loading.
The union produced detailed scenarios allegedly showing how workers would be worse off, arguing the deal could not pass the Fair Work Act’s better-off-overall test (BOOT). It said “on one view” the Beechworth agreement was worse than the Coles deal rejected by a commission full bench.
Mr Sams, in a ruling this month, said the Coles decision had no application in the Beechworth proceedings because Coles had refused to provide undertakings addressing concerns about its agreement.
“It is trite to observe that an agreement does not necessarily fail the BOOT because employees do not receive weekend penalty rates, public holiday loadings or any other award term or condition,’’ he said.
“Such a simplistic test would be to adopt an incorrect approach to the exercise of ensuring employees (and prospective employees) are ‘better off overall’ under the agreement, rather than the (award).
“It is not an exercise in which the commission ‘negotiates’ with the parties over remotely unlikely ‘what if’ scenarios about implausible or fanciful work patterns or rosters which the employer has never used and never intends to.
“This would be a barren and wasted exercise, perhaps of some obscure academic novelty, but of no practical utility. The BOOT is a balancing exercise — not a ‘line- by-line’ comparison.”
Mr Sams ruled he was satisfied the agreement met the test.
Beechworth agreed to increase rates for drivers and supervisors. Award rates for work performed only on a Sunday or public holiday would also increase 1.5 per cent. If any worker was found to be worse off, the shortfall would be made up, and a further 1.5 per cent paid.
Mr Matassoni said employees would be very disappointed the union had appealed approval of the agreement, which had been supported by 86 per cent of workers voting in a ballot in June.