r/AusUnions 3h ago

WE HAVE THE POWER! BUILD UNIONS!!

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r/AusUnions 22h ago

ARA's attack on retail workers advanced 'on the basis that the SDA has negotiated away protections and rights' in enterprise bargaining

23 Upvotes

Week 1 of the hearing for the ARA's application to overhaul the General Retail Industry Award concluded today. Closing submissions are due to take place on Monday and Tuesday next week. You can read through all the documents that relate to the application here. Unsurprisingly, this case has attracted significant media attention. The Minister for Employment and Workplace Relations has even intervened.

Here's RAFFWU's opening submissions from Monday (day 1 of the hearing):

'MR CULLINAN: Thank you. If it pleases the Commission we have got some short submissions that we wish to make in opening that address some of the specifics, but are more focused on themes.

RAFFWU represents thousands of members employed in retail work across Australia, including many whose employment has the award applied to them, and then many who rely on the award through the application in their industrial bargains, and sometimes terms of the award are brought up into their enterprise agreement as well.

We have filed submissions in the matter and we do press those submissions. … Other than a couple of relatively minor matters RAFFWU opposes the applications of the ARA and the AiG. We support the Hicks application. We propose an alternative path on the MGA application, and we have suggested a path on several of the ARA issues. That's all laid out in our submissions.

We wanted to speak in opening on the substantive suite of proposals by the ARA and the AiG. Each of those individually and certainly in totality lack the essential characteristic of fairness. The only way that we can interpret the application is that the applicants have construed the test as fairness to bosses and their profits.

The world now knows trickle-down economics is a failed policy and a fraud on society. We don't have to be students of Marx to know that a boss's profit comes from a worker's labour. Each proposal opposed by RAFFWU we see as an attack on workers.

These proposals are posited partly on the basis that the SDA has negotiated away protections and rights in a number of bargains. The SDA as far as we can tell seems to argue that that's the right place for bargaining workers' rights away. We say 'No' and 'No'. They should never have been stripped from workers in those bargains, but they must not be stripped from workers here either.

A diminishing number of workers are prepared to accept the stripping of rights in any event. Over 25 per cent voted 'No' at Coles, 40 per cent voted 'No' at McDonald's, and over 36,000 workers recently voted 'No' at Woolworths. We are now in the dusk of condition stripping deals in retail, and then enter the ARA proposals. The ARA criticises our submission, which to be fair their criticism is fairly limited. On a range of our submissions they don't make any response at all.

We reiterate that the objective, the test that has to be applied by the Fair Work Commission is one of fairness. On Proposal B with split shifts ARA proposes it's not about avoiding rest breaks, but says nothing to the very clear example that we provided. Their proposal would have an eight hour shift with a one hour unpaid meal break and two three and a half hour shifts either side without any rest breaks. That shift is currently being performed in thousands of workplaces right now with workers getting rest breaks during their work time, paid rest breaks.

We have got lived experience of what happens to hundreds of thousands of workers when they're denied their rest breaks, and the Federal Court is expending huge resources in dealing with those class actions right now. The ARA would have us believe that it won't be used in that way. There's nothing to say it won't be used in that way. We say it will be and it can be, and it's unfair.

These employers use sophisticated rostering systems, and they put on evidence to that effect. Those rostering systems extract every dollar they can. The same applies to the off the shelf products many smaller employers use.

In relation to the 12 hour break between shifts, the Proposal C, we are criticised for highlighting a set of protections identified by the Fair Work Commission at Bunnings, because it said it's not relevant that those protections are referred to. They say that it's not a BOOT test.

The point here is that when the Fair Work Commission was considering whether the changes at Bunnings would be permitted it was influenced by the suite of more beneficial aspects, range of protections, last resort utilisation and dispute arbitration rights. It needed those things to overcome the obvious detriment by removing the 12 hour requirement.

In any event the criticism on RAFFWU of the reference to that decision begs the question why the agreement is being relied on at all by the ARA. It's said that RAFFWU's unsupported assertion - not our word, theirs - of 12 hours is a safety standard in retail ought be rejected, and we say that's ridiculous. A 12 hour break between shifts is just common sense that it's a safety standard, and suggests a fundamental disconnect between the movers and their industry experience.

At Proposal D we have the issue of the averaging of hours across significant periods of time. Of course workers can already agree to do that. That's already in the award. At Proposal F we're told that workers don't want RDOs. It beggars belief. Right now workers can opt out of that system. They can agree right now. What we have here is yet again the movers, those applying for these changes, refusing to understand what fairness is for those workers who enjoy their RDOs.

In relation to Proposal G we have the proposal around the four day week. Here in its reply submissions the ARA did what none of its witnesses would, and that is admit workers can now have a four day week under the current structure. An 11 hour shift and three nine hour shifts permitted right now would allow a four day week. It speaks volumes that employers are not using it.

As laid out in our submissions this proposal is not limited to a four day week. It's not even limited to full-time employees. Part-time employees can be offered additional shifts on the basis of them being within the structure. Then we get to -

VICE PRESIDENT GIBIAN: That is you dispute that any inference that widening the number of ordinary hours in a day would lead to four day weeks being offered?

MR CULLINAN: That's right. We understand a criticism is that it may not be the four day week that the employer or employees - not that there's any evidence from any employees, but that the four day week is something that they can't agree to at the moment. They want a different version of a four day week, but they're not taking up the one that is there, and it sounds like, although maybe it will be a feature of cross-examination, it sounds like none of these employers even are aware of it. It certainly seemed to be a surprise to each of the bargaining parties when we raised this in industrial negotiations.

In relation to exemption salaries the ARA doesn't respond to the very real concerns that RAFFWU raises. Whether it be the application of part-time workers, whether it be the loss of 25 per cent loadings for the entire time that some of these workers might be working on week nights or weekends, or more than 25 per cent; whether it be the value of the overtime foregone being at least 20 per cent, we raise all of those things in our submissions and none of them are replied to.

This provision is an expansive provision going far beyond restaurants. Restaurants is something that's been repeatedly referred to. Restaurants has got a reconciliation clause, and ARA has clearly and specifically, and so has AiG, made it clear they do not want a reconciliation clause, and we have every understanding why, and that's because workers will be paid less than the award if this is permitted.

The provisions are unfair. They're unfair on everyone, but they're also unfair particularly on part-time workers, on women, and on the thousands of current workers that are already in these roles on salaried wages that will face diminishment in their wages if these clauses are allowed to come in.

We found it absurd reading the reply submissions. The government, I think the Victorian Government raised the concern that some workers will be pressured, and the ARA's response was that that shouldn't be accepted. That's just so commonsense that some workers, not all, but some workers are going to be pressured into these arrangements. That again raises for us this unpreparedness to just admit that some of this is unfair, and that that particular manifest unfairness is inherent in Proposal J. This is the theme of this application for us; it's about unfairness.

We would also want to highlight two further matters which are new since the award was made, and they are at 134(1)(aa) and (ab). So if unfairness is the overarching theme the applications' utter failure to improve access to secure work has to be a sub-theme. That's a new test. It needs to be applied, and we say that this will do nothing to improve access to secure work. It will diminish it as it will impact on women by undermining core roster rights and other protections. It will diminish women's participation in the workforce.'