Unions lose ap­peal to over­turn cuts to Sun­day penalty rates

The Guardian Australia - - News - Christo­pher Knaus

Unions have lost a chal­lenge to over­turn cuts to Sun­day penalty rates.

United Voice and the Shop, Distribu­tive and Al­lied Em­ploy­ees As­so­ci­a­tion had chal­lenged the Fair Work Com­mis­sion’s de­ci­sion to cut penalty rate cuts in awards cov­er­ing the hos­pi­tal­ity and re­tail sec­tors, which ap­plied from 1 July and will be phased in over three years.

The Fair Work Com­mis­sion, in a rul­ing in Fe­bru­ary, ar­gued the Sun­day and pub­lic holiday rates no longer pro­vided a “fair and rel­e­vant” min­i­mum safety net.

The com­mis­sion in­stead chose to make cuts of 25% to 50% points in the re­tail, phar­macy, fast food and hos­pi­tal­ity in­dus­tries. Busi­ness groups ar­gued the cuts would help boost em­ploy­ment and growth in the in­dus­try.

But the com­mis­sion’s de­ci­sion prompted a fu­ri­ous re­sponse from La­bor and the unions, which feared it would hit Aus­tralia’s low­est paid and set a prece­dent for cuts in other in­dus­tries.

The cuts were thought to af­fect 500,000 peo­ple a year. Unions al­leged work­ers would lose up to $6,000 a year, al­though the cuts var­ied across in­dus­tries.

On Wednesday United Voice, which rep­re­sents hos­pi­tal­ity work­ers, con­demned the court’s de­ci­sion to re­ject the chal­lenge to the cuts. The union’s national sec­re­tary, Joanne Schofield, de­scribed the rul­ing as a “new low point for work­ers in Aus­tralia”.

“It shows that the laws in this coun­try do not pro­tect work­ers and are out of step with com­mu­nity val­ues. Those laws have to change,” she said. “We pur­sued this ap­peal against the penalty rate cuts, to stand up for hos­pi­tal­ity work­ers and for all work­ers in this coun­try.

“We fear that em­ployer groups will now con­tinue to at­tempt to at­tack the week­end pay of work­ers in other in­dus­tries.”

The Aus­tralian Re­tail­ers As­so­ci­a­tion, which has cam­paigned for the cuts, wel­comed the fed­eral court’s de­ci­sion. The group’s ex­ec­u­tive direc­tor, Rus­sell Zim­mer­man, said re­vers­ing the cuts would have sti­fled em­ploy­ment growth in the re­tail in­dus­try.

“We now have a unan­i­mous de­ci­sion from a five-mem­ber full court of the fed­eral court sup­port­ing the unan­i­mous de­ci­sion of a five-mem­ber full bench of the Fair Work Com­mis­sion to re­duce penalty rates,” Zim­mer­man said. “The ARA hopes the ALP and other po­lit­i­cal par­ties who are seek­ing to over­turn this de­ci­sion are sen­si­ble enough to ac­cept the um­pire’s de­ci­sion and al­low re­tail­ers to get on with the job of em­ploy­ing more peo­ple.”

On Wednesday, the op­po­si­tion leader, Bill Shorten, called the de­ci­sion “dis­ap­point­ing”. He has pre­vi­ously crit­i­cised the cuts for com­ing at a time when wages are fall­ing in real terms.

The fed­eral court heard the case late last month but was re­stricted to only scru­ti­n­is­ing the com­mis­sion’s de­ci­sion-mak­ing process, rather than the mer­its of the de­ci­sion it­self.

The unions had ar­gued that the com­mis­sion’s had “mis­con­strued its pow­ers” by vary­ing the awards with­out be­ing sat­is­fied that a “ma­te­rial change in cir­cum­stances” meant the award no longer met the “mod­ern awards ob­jec­tive”.

The unions also ar­gued the com­mis­sion had ig­nored the rel­a­tive liv­ing stan­dards and needs of Aus­tralia’s low-paid work­ers, and had mis­con­strued the word “rel­e­vant” in its use of the phrase “fair and rel­e­vant safety net”.

The court re­jected all of the unions’ ar­gu­ments. The court’s de­ci­sion was handed down on Wednesday morn­ing by fed­eral court jus­tices An­thony North, Richard Tracey, Ge­of­frey Flick, Jayne Jagot and Morde­cai Bromberg.

United Voice urged em­ploy­ers not to pass on the cuts to work­ers. The union said it would “keep chal­leng­ing the sys­tem” so long as it failed to pro­tect low­est paid.

“Our mes­sage to the gov­ern­ment and the em­ployer groups who mounted this sus­tained at­tack on the wages of hos­pi­tal­ity work­ers is, ‘Our rights are not up for grabs and we will not stand by and watch you come after them’,” Schofield said. “We will con­tinue to chal­lenge this harsh and un­fair pay cut and will con­tinue to speak out on be­half of all work­ers.”

Pho­to­graph: Lukas Coch/AAP

The Fair Work Com­mis­sion an­nounced in Fe­bru­ary it would cut Sun­day and pub­lic holiday penalty rates in the re­tail and hos­pi­tal­ity in­dus­tries.

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