A Brisbane student has successfully challenged his union’s workplace agreement with Coles supermarket, potentially forcing the company to renegotiate the wages and conditions of tens of thousands of employees.
Duncan Hart, who works at the supermarket part-time, had argued the agreement struck with Coles in 2015 by the Shop, Distributive and Allied Employees Association (SDA) had left the 77,000 workers it covered worse off than under the award.
An enterprise bargaining agreement (EBA) can be registered with Fair Work Australia only if it leaves each worker better off overall, which Coles and the SDA had said was the case when the industrial umpire approved the deal in July.
But the commission on Tuesday ruled in Hart’s favour, finding a cut in penalty rates contained in the deal had left a substantial number of workers worse off.
“For some employees, particularly those who work primarily at times which attract lower penalty rates under the agreement when compared to the award, the monetary loss is potentially significant,” the commission said.
An analysis of Hart’s September roster showed the student could have been up to $2,504 worse off each year under the deal.
Coles and the SDA had argued the EBA had balanced the lower penalty rates by increasing the hourly base rate, extending meal and rest breaks and introducing new leave options, among other provisions.
The commission agreed these concessions were in workers’ favour “but the level of benefit is not large”.
“We are not satisfied that a consideration of all benefits and detriments under the agreement results in each employee and each prospective employee being better off overall under the agreement compared to the award,” the commission said.
Coles has until 10 June to remedy the agreement.
A Fairfax Media investigation in 2015 found the SDA – which champions a socially conservative agenda, including opposition to marriage equality – pays up to $5m a year to major employers to cover the cost of payroll deductions of union fees.
“The decision today recognises that while some changes need to be made, the agreement as a whole is solid,” Gerard Dwyer, the SDA’s national secretary, said.
“This was always a technical debate about a small cohort of workers who may have inadvertently missed out on the significant improvements that the vast majority of Coles workers would have secured under this agreement.”
Coles said its workplace agreements had “consistently delivered wage rises ahead of inflation, at the same time as we have lowered prices for our customers”.
“Coles’ current agreement was approved by the Fair Work Commission in 2015. It delivered an average increase of 3% in base rates, maintained penalty rates from the previous agreement and brought six complex agreements into a simple, easy to understand document,” the company said.
“Coles has constructively engaged in the Fair Work Commission’s process and will respond to today’s decision in due course.”
