Often, the industrial scene in Australia can seem like a series of David and Goliath battles. Hart v Coles Supermarkets is one such fight. Supermarket worker Duncan Hart is taking on the combined might of Coles, one of the largest employers in the country, and the Shop, Distributive and Allied Employees Association (SDA), the massive union which covers Coles workers.
Duncan has lodged an appeal against the Fair Work Commission’s June decision to approve the latest Coles enterprise agreement. Red Flag’s Shail Shah talked to Duncan about what he’s fighting about, and how it might affect nearly 80,000 workers across the country.
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Last year, Coles and the SDA started negotiating over the terms of a new agreement to set the pay and conditions of Coles’ workforce. From the outset, indications were that it would be bad.
Early on, the company and the SDA locked the Australasian Meat Industry Employees Union (AMIEU) and the Transport Workers Union (TWU) out of bargaining.
Coles and the SDA agreed to remove existing state-based agreements in favour of a single national deal. The new agreement meant a savage cut in conditions and penalty rates for meatworkers and truck drivers. But the picture wasn’t much better for the majority of the workforce represented by the SDA. For these workers, the agreement meant the loss of all night shift and Saturday penalty rates and a hefty cut to Sunday rates.
The SDA argued that the cuts would be offset by a raise in the base wage and that workers would be better off generally. Duncan says that he knew the deal was a sell out, and talked openly about this with his workmates, but could do little to challenge it at the time.
“I hadn’t put two and two together in the sense that there was a process of approval by which the Fair Work Commission could actually look at it and say, ‘This agreement is worse than the award’.”
While the AMIEU protested the deal and meatworkers took strike action in Victoria, with the backing of the SDA the company managed to get its agreement through at the workplace level. After a heavy-handed ‘vote yes’ campaign the agreement was voted up in a country-wide ballot of all staff in May.
But within a few weeks, Fairfax journalists Ben Schneiders and Royce Millar were reporting that the agreement undercut the basic award. Their claims were based on research by Josh Cullinan, an organiser with the National Tertiary Education Union.
Cullinan had undertaken a forensic review of the Coles deal: the results showed that, under the agreement, wages for tens of thousands of workers were lower than if they were on the award – the legal minimum.
At the June hearing to have the deal approved, Coles submitted seven rosters to the Commission to show that take home wages were overall higher. But there was a problem – the rosters were invented. Seven imaginary rosters for seven imaginary workers.
Using real rosters, Cullinan was able to show that a significant number would be worse off under the SDA-backed agreement. He looked at two stores in particular: Northcote in Melbourne and Benalla in regional Victoria. Two-thirds of workers at the Benalla store and one-third of workers at Northcote were worse off under the agreement.
Duncan analysed rosters at his own store in Brisbane and found that 50 percent of people in his department would be better off on the award. Cullinan estimates that the agreement makes Coles’ workforce $60 million a year cheaper than if it paid according to the basic award.
With this information, Duncan – a long time union activist in the SDA – decided to challenge the Commission’s original finding that the agreement left workers better off. His appeal took place in Melbourne on 13 October. Duncan, Josh Cullinan and the AMIEU on one side; Coles and the SDA on the other.
At the hearing, both Coles and the SDA argued against Duncan’s right to object to the agreement, but struggled to explain why a worker affected by the deal shouldn’t be heard.
One of the low points for Coles, Duncan says, was its argument that the Commission may never be able to determine whether workers are better off under the agreement because truth is little more than a construct.
He hopes this challenge to the collusion between the company and the SDA will galvanise retail workers. “Hopefully it can be a bit of a rallying call for workers to organise independently of the leadership, to put some pressure on the officials … This is an indictment of the SDA’s entire negotiating system in every respect”, he said.
The Fair Work Commission is expected to release its decision on Duncan’s case within weeks. “Even if they find against us that would not be the end at all”, he said. “It would just be an argument that the so-called protections the law gives workers mean not much at all and we have more work to do to build rank and file strength in workplaces.”