Duncan Hart, a student who works part-time at a Coles supermarket in Brisbane, has won a David and Goliath battle against his employer and the Shop Distributive and Allied Employees Association (SDA) in the Fair Work Commission.
He claimed the enterprise bargaining agreement between Coles and his union left thousands of workers worse-off than they would be under the award, and was therefore invalid.
In a decision published on May 31, the Fair Work Commission agreed and ruled that the Coles EBA, which traded a higher hourly base rate for a cut in penalty rates for weekends and nights, failed the “better off overall” test.
Hart said the decision was a victory not just for Coles employees, but for retail workers more broadly. "It shows that you can't just cut penalty rates, increase the overall base rate and actually still say that people are better off overall.
“There will be people who work those unsociable hours who will be worse-off and that's what we saw with the Coles agreement and it was tens of thousands of Coles workers that were worse-off.”
The commission gave Coles 10 days to remedy the failings in the EBA before it quashed its original approval of the workplace agreement. The decision could force Coles to renegotiate wages and conditions for its workforce of 77,000 employees.
For a workplace agreement to be legal, all employees must be made better off when an agreement is compared to the award.
Professor John Howe, workplace law expert at the University of Melbourne, said that the decision would increase scrutiny of similar workplace deals that come before the commission in the future.
"The full bench has sent a clear signal to members of the commission and parties to enterprise agreements that it is not enough that a majority of employees support the agreement — the interests of those employees likely to be most adversely affected by the agreement have to be taken into account.
"We're also going to see greater public scrutiny of pay deals between the SDA and other major food chains like Woolworths and McDonalds.”