Coles looks like new Cleanevent and workers look the losers

GRACE COLLIER
September 1, 2016
The Australian
The dodgy deal suited both the big business and the big union, but it was made using deception, breached legislative safeguards and left about 43,000 workers paid below the minimum wage.
The deal should never have been ratified by the Fair Work Commission in the first place, but it was, because of a misleading statutory declaration. This is why, after legal challenge and careful examination, the deal was struck out, in retrospect.
We can’t run from the truth; Coles is the new Cleanevent, but on a far grander scale, and there is much more of this story that is yet to play out. In May, a full bench of the commission found the 2015 Coles enterprise bargaining agreement failed an important legislative test — the “better off overall test” (or boot). While the EBA was good for some workers, it left others (about 43,000) paid below the award rate.
Estimates show the EBA let Coles underpay their workforce by $70 million to $100m a year.
Since the decision, both Coles and the Shop Distributive and Allied Employees Association — “the Shoppies union” — have been making excuses for their EBA.
Coles complains about penalty rates but it has always had deals with the union that allowed them to be avoided — this has long been Coles’ competitive advantage.
Aldi, IGA, and the local corner store have to abide by the minimum wage, so why can’t Coles? Why should any businesses flout the law, by virtue of a dodgy deal with a union?
The Shoppies defend the EBA too. Coles heavily promoted union membership to its workers, and money changed hands between Coles and the union for “training”.
The Shoppies union defends the EBA using two arguments. First, it says the agreement received 90 per cent endorsement in a ballot of employees — but workers can vote only on the information before them. Evidence showed this was lacking. Comparisons with the award were not provided. An employee I spoke to voted “yes” on the say so of the union, but had no idea she would be financially worse off.
Second, the union tries to pretend the commission applied the “boot” in a new way. This is hogwash. The “boot” has always ­applied to each worker as an individual. The “boot” is not, and never has been, applied to the workforce as a whole. Companies have never been allowed to pay any workers below the minimum wage, regardless of how many other workers in the business are paid above the minimum wage.
When the EBA was lodged with the commission, a person from Coles sent in a signed statutory declaration to support it. He has ticked the box, next to the statement, “I think the agreement does pass the better off overall test”.
The form goes on to say, “Note 1: A person who intentionally makes a false statement in a statutory declaration is guilty of an offence, the punishment of which is imprisonment for a term of four years … Note 2: Chapter 2 of the Criminal Code applies to all offences against the Statutory Declarations Act 1959”.
Now the EBA has been struck out, on the finding it failed the “boot” test, the man who signed that stat dec should consider the implications.
Who in Coles knew about the EBA, who saw the wages costings, who gave final approval? You can’t mislead a government body, under­pay 43,000 people and think there will be no consequences.
Employees who have been jibbed are entitled to seek back pay and have penalties applied.