JFM Law has been paying close attention to the story around Coles’ failing to pay employees the minimum wage, as a result of a workplace agreement between the supermarket giant and the Shop Distributive & Allied Employees Association (SDA).

It’s estimated that the agreement results in workers being underpaid by up to $100 million per year.

Coles has failed to increase wages despite a full bench Fair Work Commission (FWC) ruling that a 2015 agreement failed the ‘better off overall test,’ which requires employees to be ‘better off’ under any workplace agreement than they are under the Award.

The FWC ruled that the 2015 agreement would be terminated if Coles failed to either pay higher penalty rates or change rostering, however Coles has refused and declared the findings “impractical.” Instead, Coles has shifted its workers to an earlier 2011 agreement with the SDA.

Penny Vickers, a mother of two and night-fill worker at Coles, is now seeking to have the FWC quash that 2011 agreement.

JFM Law is a boutique firm of employment law specialists, and we have dealt with a number of issues concerning how workplace agreements stack up against Awards. We regularly advise employers as to whether their proposed agreements meet the ‘better of overall’ test.

In our experience, employers should be extremely wary about changing from the Award to a separate workplace agreement, due to the obligations the ‘better off overall’ test places on employers. In this instance, it’s clear that Coles’ agreement fails the test.

I am more than happy to discuss this with you further and be contacted for a quote about this story, or any other employment law or not-for-profit law issue.

Contact: John Morrissey at front.desk@jfmlaw.com.au or Louise O’Connor at louise.oconnor@jfmlaw.com.au. Alternatively, call us on (02) 9331 0266.