Coles staff could have legal case to pursue backpay

Coles employees found to have been disadvantaged by a controversial wages deal could have a legal case for backpay.

Coles employees may take a fight over backpay to court.

Coles employees found to have been disadvantaged by a controversial wages deal struck out by the Fair Work Commission could have a legal case in support of ­pursuing backpay from the supermarket chain.

Employment lawyers said yesterday that potential legal action would hinge on a comparison ­between the struck-out deal and the previous 2011 Coles agreement, currently under challenge in the commission.

The workplace regulator, the Fair Work Ombudsman, said yesterday it was not investigating any complaints of backpay owed to Coles workers as a result of the 2014 agreement.

Anthony Forsyth, professor of workplace law at Melbourne’s RMIT University, said yesterday that there was a potential for a backpay claim under the Fair Work Act.

However, he was cautious about the prospects of success. “On the backpay issue, the new Coles agreement has been determined invalid (and) the 2011 agreement applies in its place,’’ he said.

“Legally the new agreement never took effect; so if Coles paid employees under the new agreement for any period, and that meant any reduction in entitlements compared with the 2011 agreement, then I think there would be a case for backpay in ­respect of that period.

“But I note that Coles has given public assurances about no workers being disadvantaged as a result of the new agreement being knocked back by the FWC — so, practically, perhaps the backpay issue doesn’t arise.’’

While the commission found some workers had been worse off compared with the award, lawyers said this did not mean they would be able to claim backpay. The test for determining backpay relied on a comparison between the pay rates in the struck-out 2014 agreement and the previous 2011 deal, not a comparison with the award.

The Shop Distributive and ­Allied Employees Association said the 2014 agreement was more beneficial than the 2011 deal, “therefore the question of backpay doesn’t arise’’. SDA ­national secretary Gerard Dwyer said when the 2014 agreement was set aside by the commission, the “question is what was in place at law, and the answer is the 2011 Coles EBA’’.

“The 2014 rates were all in ­excess of the 2011 rates,’’ he said.

Coles announced in June that it would put workers back on a 2011 enterprise agreement rather than lift pay for the casual and part-time employees the commission subsequently found were worse off under the rejected deal.

Union officials have conceded that the 2014 Coles deal would have potent­ially disadvantaged more than 11,000 of the super­market chain’s 77,000 employees, despite 90 per cent of employees voting to support it.

The commission is currently considering a legal challenge to the 2011 agreement by Penelope Vickers, who works three shifts a week at a Coles store in Brisbane.

In her application to terminate the agreement, Ms Vickers said she was receiving less under her current roster than she would ­receive under the General Retail Industry Award. The case is set down for hearings next month. Coles said yesterday it would not comment while the commission proceedings were taking place.