The Australian, July 18, 2017
Coles did not conduct any modelling on whether its 2014 employment deal with unions affecting 76,000 employees could pass the “better off overall” test, the Fair Work Commission has heard.
Coles legal director David Brewster also told a FWC hearing that there was no formal sign-off on the deal by company directors before the enterprise bargaining agreement was submitted to the commission.
Self-represented nightshift worker Penny Vickers, who has been working three shifts a week for Coles since 2012, questioned Mr Brewster under cross-examination last night as part of her bid to have the previous 2011 EBA scrapped.
“My understanding was that there was no modelling done … there is no BOOT (better off overall test) analysis,” Mr Brewster said.
He said there had been financial analysis carried out before negotiations with unions ended for the 2014 deal, but that was not to see if workers would be better off.
He said Coles’ national employee relations manager had signed off on the EBA, but there was no formal authorisation to do so and no directors were sought to approve it.
Mr Brewster said the sign-off was “within the scope of his role as national employee relations manager”.
“He told me that he felt … that the agreement passed the BOOT,” he said.
Ms Vickers’ legal bid follows that of part-time Coles trolley collector Duncan Hart, who successfully had the union’s 2014 EBA with the company scrapped by the FWC last year, ruling that it paid below the legal safety net and failed the “better off overall test” required under the Fair Work Act.
The ruling resulted in workers being shifted to the 2011 EBA, which Ms Vickers is challenging, and has sought documents relating to the 2014 deal as part of her fight.
Ms Vickers had sought any documents relating to either the directors of Coles or parent company Wesfarmers who considered or signed off on the EBA.
She also cross-examined Wesfarmers company secretary Linda Kenyon, who told the FWC that she had not found any documents relating to the deal at the parent company.
Ms Vickers claims to be about $33 worse off each week under the 2011 EBA, compared to what she would get under the set national retail award.
Ms Vickers had been a Shop Distributive and Allied Employees Association steward and was unaware the 2014 EBA would make her worse-off when she voted for it.
The powerful SDA donated $1.1 million to Labor in 2015-16 — before last year’s federal election — and declared more than $1.2m in “other receipts”, which includes affiliation fees to the party, according to Australian Electoral Commission disclosures.
Last month the FWC ordered Coles produce sample records of employees in three to five stores, finding it was “reasonably arguable” that the company ought to have known the 2014 deal could not have passed the “better off overall test”.