Voting snafu delays pay rise for Kmart employees

The Fair Work Commission has rejected an agreement, not satisfied the deal was genuinely agreed by employees.

A flaw in the voting process has delayed pay rises for Kmart employees. Picture: Supplied

The Fair Work Commission has rejected an agreement covering 32,000 Kmart workers, finding flaws in the voting process meant it could not be satisfied the deal was genuinely agreed by employees.

The decision means pay rises will be delayed for the workers who may have to take part in another ballot.

The proposed deal, replacing a 2012 agreement, was supported by the shop assistants union and backed by 91 per cent of the 23000 employees who voted in a ballot in November last year.

Of the 32,039 workers to be covered by the agreement. Kmart initially said 21,881 were casual employees.

Following an inquiry from the commission, Kmart said the number of casuals was 25,881, blaming a typographical error in a statutory declaration for the incorrect figure.

Kmart subsequently became aware that 573 persons whose employment was terminated during November last year “inadvertently remained on the voter roll”. Of these 125 voted in the ballot.

The commission also rejected Kmart’s submission that casuals who were hired during the voting period but had not worked a shift should be considered “employed” at that time.

Commission deputy president Amanda Mansini found Kmart requested employees to vote who were not employed at the time of the voting period and would not be covered by the agreement. It also did not request employees to vote who were employed at the time of the voting period and would be covered by the agreement.

She said the decision to exclude employees employed at the time and who would be covered by the agreement “means that I am not able to be satisfied that the agreement was genuinely agreed to by the employees covered by the agreement”.

She said this was not a “minor procedural or technical error” and, as such, may not be overlooked.

Assessing the agreement against the Fair Work Act’s better off overall test, Ms Mansini said the proposed hourly pay rates across more than 10 classifications of employees were as little as one to five cents above the legal award minimum.

Kmart proposed undertakings to address 10 concerns about the agreement but concerns remained about the choice of superannuation fund and the agreement’s extended span of hours which were not subject to undertakings.

Shop Distributive and Allied Employees Association national secretary Gerard Dwyer said it was disappointing the commission rejected the deal “primarily on the basis of voting technicalities going to who was and wasn’t entitled to vote”.

“Kmart employs large numbers of casuals which creates complexities around the question of who is entitled to vote,’’ he said.

“While the straight mathematics show that the figures in question could not have changed the result from an overwhelming yes vote, the Fair Work Commission has ruled that the Act has not been complied with.”

Mr Dwyer said the mention of superannuation as a less beneficial provision was an interesting ruling in light of legislation surrounding superannuation and given that the nominated fund, REST, is one of the country’s best performing funds over the long term.

“It’s disappointing to see the agreement rejected, but of course we respect the Fair Work Commission’s decision and will work with all the parties involved in an attempt to get an agreement that Kmart workers deserve,” Mr Dwyer said.

“This means further delays for Kmart workers who were looking forward to enjoying the benefits of an agreement that protected existing employees’ higher rates of pay, contained full award penalty rates, provided pay rises for all, two days paid domestic violence leave and preserved above award conditions.”

A Kmart spokeswoman said the company was “very disappointed with the decision”.

“Kmart is carefully reviewing the reasons for the decision with our legal team and will determine our options and next steps once this review has been completed,” she said