Rival firm upset over Bill Shorten’s deal with Cirque du Soleil

A deal to supply labour to Cirque du Soleil’s national tour became the subject of an extraordinary legal challenge.

A deal signed by Bill Shorten and an employer to supply labour to Cirque du Soleil’s national tour ­became the subject of an extraordinary legal challenge from a rival company alleging the deal left workers worse off while “the AWU does well”.

The bargain struck by Mr ­Shorten as head of the Australian Workers Union in 2001 gave rise to furious submissions in the ­former industrial relations commission between rival labour hire firms Adecco and Manpower.

In an echo of deals brokered by Mr Shorten, which were examined by the trade union royal commission last month, the 2001 enterprise bargaining agreement between the AWU and Adecco paid below-award rates, but guaranteed payroll deductions for union dues and further payments by the employer to the union.

The agreement, which dictated the wages for ushers, ticket-sellers and other staff outsourced by the Canadian acrobatic circus company, excluding cast and crew, provided for a stipend to be paid by Adecco to the AWU of $2 per ­employee, worth as much as $20,000 in additional revenue to the union, for “training”.

Manpower lodged an appeal against the EBA in September 2001, a month after the agreement was certified in the commission, arguing the deal “undercut” award rates and cost the firm business.

In a sustained attack before ­the federal industrial relations commission, Manpower’s lawyers said: “The AWU does well with (payroll) deductions, requirement for people to be bought forward if they object to membership and direct payments to the union flowing from the agreement.

“So the employer and the union do very well out of the agreement but the question that arises is how do the employees do.”

Manpower also inferred before the commission that the AWU and Adecco had sewn up the Cirque du Soleil contract for future tours.

The AWU EBA with Adecco “carries with it … significant benefits for the employer … they get an agreement which is expressed as being all-inclusive all up and which is pretty vacuous in terms of conditions for the employees,” ­Michael Harmer for Manpower said.

Of the $2 levy, Mr Harmer said: “In circumstances where these tours involve four to five weeks of performances, 330 to 400 employees touring around no less than five states of Australia, the sums do add up in terms of what the AWU derives from each tour under the agreement.”

Adecco lawyer Arthur Moses in turn accused Manpower of “mud-slinging”, adding its rival’s submissions were “offensive” and “misconceived” and “the proceedings constitute an abuse of process”.

Manpower lost the contract ­because it was “too greedy” and concerned for its “profit margins”, Adecco’s lawyers said, adding that the AWU was not “bought off” by the $2 payment per employee.

The appeal was rejected in March 2002 on the technical grounds that Manpower was not “a person aggrieved” by the deal.

However, in comments that foreshadowed questioning of Mr Shorten before the royal commission this month, the AWU’s lawyers were forced to dispel the notion there had been a “pay-off between the two organisations and both gained an advantage to the detriment of the employees’’.

“I can emphatically state that that is not the case,” the AWU’s lawyer said.

Under the law at the time, parties to an EBA would swear the deal left workers no worse off than they would be under the award, which is known as the “no-disadvantage test”, unless it is in the public interest to do so.

Mr Harmer argued: “In our ­respectful submission, proper analysis does not warrant the public interest side of the no disadvantage test to be passed.”

The commission’s decision stressed the potential ramifications of the case.

“If leave (to ­appeal) were granted in this case a number of very important questions might arise concerning the application of the no-disadvantage test ... The answer to those questions would be of significance in many of the large number of ­applications to certify agreements with which the commission deals,’’ it said.

However, it added that Manpower had not provided enough evidence to justify an appeal.

Mr Shorten declined to comment.