Coles worker Penny Vickers’ defiance dooms dodgy EBA

Underpaid employee Penny Vickers has a case against Coles and the Shop, Distributive and Allied Employees Association.

By virtue of a dodgy enterprise bargaining agreement that should never have been made, Penny Vickers of Brisbane, mother, wife and Coles nightshift worker, is paid $30 a week less than the award wage.

Some time ago, Vickers asked her union — the Shop, Distributive and Allied Employees Association — to help her, but it refused. So she made an application to the Fair Work Commission to have the EBA terminated. She is self-represented in her application.

Late last month, Vickers appeared at the Fair Work Commission. On the other side of the table stood 10 bigwigs, mostly lawyers; these people appeared for Coles and the SDA, which are united in opposing Vickers’ application.

Incidentally, Vickers is an SDA member and a workplace delegate, but this is how some unions treat their members nowadays.

For nine months, the battle over this EBA has raged in the FWC. There have been hearings, mentions and so on, but no date has so far been set for Vickers’s application to be heard. It shouldn’t be this hard or take this long for an ordinary person to access their entitlement to the basic award wage.

Section 193 of the Fair Work Act says an EBA must not be approved by the FWC unless “each award-covered employee … would be better off overall” under the EBA than under the award. If just one worker is worse off under an EBA, it will not pass the “better off overall” test and the FWC cannot approve it.

The Coles EBA covers 77,000 workers. There is no way of knowing for sure but documentation that previously has been put before the FWC estimates that 56 per cent of workers may be paid below the award, with 44 per cent paid above. The loss to the 56 per cent is estimated to be $70 million a year.

Regardless, when Vickers’s application is eventually heard, all she has to do is prove one person is worse off for the EBA to be terminated.

With her rosters and some simple pay calculations, Vickers can prove she is worse off by $30 a week.

A spokesman for federal Employment Minister Michaelia Cash says, “It is now a matter for the court to determine whether the 2011 Coles EBA failed the better off overall test” and “If it is found to have failed the BOOT then this will raise very significant questions about how the enterprise bargaining system has operated under Labor’s law since they came into place in 2009.”

I think the EBA will be terminated retrospectively and Coles will face a bill for back pay for as much as $500m.

If the people running Coles were smart they would sack their legal team now, agree to the termination, apologise to their workers, ask the union to help fund the back pay bill, and try to put this sorry episode behind them.

The forces opposing Vickers must know she will win because on the ABC’s 7.30 program this week a great big lie was told in what looks like an attempt to excuse unethical conduct and explain the coming humiliation.

Jennifer Westacott is a
non-executive director of Wesfarmers, the owner of Coles, and chief executive of the Business Council of Australia. On 7.30, it was asserted that the BOOT is suddenly being applied differently to the way it has been in the past, and this new interpretation explained why the EBA was made in the first place and why now it is at risk.

Westacott said: “If the interpretation (of the BOOT) is going to be that every single person has to be better off on every single agreement, we will see, I think, potentially a risk in the whole enterprise bargaining process. She added: “No one wants to see the enterprise bargaining system fall away in this country because it’s been very important.”

There is no new interpretation of anything. The BOOT has been around, in some form or the other, for decades. Apart from a short period during Work Choices, employers have never been allowed to use agreements to pay people below the award. This is a fact known by everyone except, apparently, Westacott, Coles and the SDA.

The only reason the Coles EBA was approved is the FWC was negligent. The EBA will be terminated not over a new interpretation of the BOOT but because the FWC will be forced to do its job and right the wrong. And if the bargaining system collapses because employers such as Coles can no longer use it to underpay people, then so be it. We would all be better off without it.

Westacott went on to say: “Let’s be very clear that people under enterprise agreements get paid more than people on awards.” Well, Vickers doesn’t.

Big business and big unions are in cahoots, in defiance of the law, and relying on the negligence of the FWC to impose organised wage theft on a grand scale. Estimates are that there are 250,000 workers under dodgy EBAs that pay them less than the award, who are losing $300m in wages a year.

I don’t know how some people sleep at night, and perhaps they don’t. But while they are lying in their beds, Vickers is down at Coles, cutting open boxes and stacking shelves.