The Guardian • Issue #1974

RAFFWU to fight for the right to bargain in the Federal Court

The Retail and Fast Food Workers Union (RAFFWU) has pledged to take Coles Supermarkets to the Federal Court in a bid to force the supermarket giant to commence negotiating a new enterprise bargaining agreement (EBA).

The Coles Supermarkets Enterprise Agreement 2017 expired on the 30th of April 2020; however, the employer has refused to negotiate a new agreement. RAFFWU argues that this leaves its 100,000 store workers powerless and unable to access protected industrial action.

RAFFWU launched a 2020 campaign to force Coles to bargain, with rank-and-file activists gaining 2000 signatures from Coles workers wishing to bargain.

This was rejected by the Fair Work Commission, who said that RAFFWU failed to demonstrate that a majority of workers wanted to bargain or that the Fair Work Commission was responsible for carrying out a “majority support determination,” a legally binding and secure poll that asks all workers directly if they wish to bargain.

That workers in large retail need to demonstrate that a majority of workers nationwide want to bargain just to win a legally binding majority support demonstrates that the system is stacked heavily against them.

RAFFWU secretary Josh Cullinan stated his intent to appeal the decision with the Federal Court as a test case for the right to bargain.

“They have such minimum rates already that there’s no desire on them to negotiate something better than that unless they’re forced to, and now they can’t be forced to,” he said.

“The decision as it stands would effectively prohibit a huge number of workers from the right to collectively bargain because it’s not feasible.”

While Coles declined to comment on whether it had abandoned bargaining for its stores, it comes after McDonald’s, Domino’s Pizza, and Bunnings Warehouse, who collectively employ an additional 260,000 workers, publicly abandoned the Enterprise Bargaining system, returning their workers to the Award, or maintaining expired agreements that paid similarly.

These retail and fast food giants have been lobbying the Morrison government for industrial reform, in particular simplifying the Better Off Overall Test (BOOT) that requires a majority of workers to be better off under the EBA than the Award. However, amid crossbench pressure, the federal government’s flagged reforms were shelved.

The timing of this paints a clear image. Before RAFFWU’s founding in November 2016, the majority of workers for large retail and fast food companies in Australia were paid below Award wages.

This was due to collaboration between employers, the Shop, Distributive and Allied Employees Association (SDA), and the Fair Work Commission (FWC).

The BOOT system was exploited, with employers permitted to replace penalty rates, casual loading, and conditions with meaningless allowances, leaving workers far worse off and saving employers hundreds of millions of dollars each year in wages.

The success of RAFFWU’s campaigns to restore penalty rates, often after the termination of EBAs at the FWC after appealing that they failed the BOOT, has meant that most workers for large retail and fast-food employers under EBAs are paid similar to the Award rate.

While employers were eager to participate in enterprise bargaining when the SDA would ensure them wages below the minimum wage, the thought of allowing workers to bargain for wages higher than the minimum wage is unacceptable.

The FWC and SDA have demonstrated that employers will not be forced to bargain, denying workers protected industrial action, higher wages, and stronger conditions.

At the same time, the existence of enterprise bargaining is used as a smoke screen to deny significant raises to Award wages. This comes as the amount of workers covered by EBAs has decreased by sixty-eight per cent since 2009.

RAFFWU’s challenge to this collusion of large employers, the FWC, and the SDA is to be commended.

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