Listen to the interview here:

http://podcast.3cr.org.au/pod/3CRCast-2010-08-22-76989.mp3

or here:

http://www.3cr.org.au/aggregator/sources/797

Stick Together airs on 3CR community radio in Melbourne on Sundays at 10 – 10.30AM, and is repeated Thursdays 6 – 6.30AM. It is Australia’s only national radio show focusing on union and workplace justice issues. It broadcasts each week on the Community Radio Network, the satellite service of the Community Broadcasting Association of Australia, to stations nationally Wednesdays at 6.04PM.

Subscribe to the weekly podcast, or listen to recent podcasts.

http://www.3cr.org.au/

http://www.workplaceexpress.com.au/

FWA has rejected an agreement for three Bakers Delight stores in Melbourne after finding submissions by employer representative Enterprise Initiatives about the deal’s clauses were “inaccurate, misleading or contradictory”.

Unregistered union Unite, which was the bargaining agent for some employees, welcomed Senior Deputy President Drake’s decision, but said workers continued to be covered by an expired non-union agreement under s170LK of the pre-Work Choices legislation.

It has applied to terminate the agreement, which its secretary, Anthony Main, says contains many of the same disadvantages as the rejected deal.

In her decision, issued on Friday, Senior Deputy President Drake said she had “a number of significant issues” when she initially considered the deal, made during the Fair Work Act’s bridging period.

“These included the purported ‘flexible’ ordinary hours of work, the ‘requirement’ to allocate weekend and public holiday hours fairly and equitably amongst employees, voluntary additional hours and overtime rates, and the average hours of weekend work.”

Senior Deputy President Drake added that she also needed to be assured that the employer – Earthfield Pty Ltd T/A Bakers Delight Diamond Creek, Bakers Delight St Helena & Bakers Delight Laurimar – had complied with the s180(5) obligation to take all reasonable steps to explain the agreement to under-21 employees.

She outlined her concerns in a July 9 letter to Patricia Ryan, practice manager of Enterprise Initiatives subsidiary EI Legal. The letter describes the submission on s180(5) and (6) compliance as “formulaic” and failing to provide any indication of steps taken to inform young employees about the agreement.

It also says workers would be disadvantaged by the ordinary hours of work clause, as those on level one would be $1.10 an hour better off under the award than under the loaded rate under the agreement.

In response, Enterprise Initiatives proffered undertakings on behalf of the employer, but Senior Deputy President Drake declined to rely on them, saying the information had been unreliable and that the further submission about the clauses was “inaccurate, misleading or contradictory”.

When she sought further clarification, no satisfactory explanation was provided.

Examples of inaccurate information included the employer’s claim that employees would work more hours on weekdays than weekends. Some employees, she noted, predominantly worked weekends and were likely to be significantly disadvantaged.

She said that in the light of the employer’s obligation to provide accurate information to the tribunal, “I am not satisfied that the material regarding the changes to the Agreement and the undertakings would be provided to the employees in a reliable manner”. Further, she didn’t have faith that the employer would comply with the undertakings.

Unite says the employer fails to explain deal to young workers

In its 45-page submission, provided to FWA in December last year, Unite says the agreement fails the no disadvantage test.

It adds that the employer failed to meet its obligations under s188(a)(i) and s180(5)(b) by failing to explain the agreement to young employees.

Also, it says, employees didn’t genuinely agree to the deal, as the company had provided misleading information about wage rates.

Unite’s calculations provided to FWA show that employees could be up to 68% worse off under the agreement than under the award, with only four of 19 employees it represented better off.

EI Legal practice manager Patricia Ryan told Workplace Express an appeal was “something our client would consider”.

Bakers Delight Holdings corporate communications manager Kendra Teasdale said the franchisor was awaiting an external legal opinion before providing advice to its franchisee, who operates the three sites.

Earthfield Pty Ltd T/A Bakers Delight Diamond Creek, Bakers Delight St Helena & Bakers Delight Laurimar [2010] FWA 5752 (6 August 2010)

Unite has set up a Facebook page to supports its Bakers Delight campaign

UNITE, the fighting union for fast food and retail workers, had challenged the agreement in Fair Work Australia claiming that it left the young workforce disadvantaged because it undermined many Award conditions.

In her decision Senior Deputy President Drake said: “I am not satisfied that the Agreement passes the Better Off Overall Test. I have residual concerns regarding allowances, accident makeup pay and other award benefits, as well as the loaded rate of pay which compensates for annual leave and personal leave. On balance I am not satisfied that employees would be better off overall under the terms of this Agreement.”

UNITE Secretary Anthony Main said “After failing to negotiate in good faith, the employer dishonestly pushed through this agreement with the help of bullying and lies. UNITE had no option but to challenge its validity.

“The employer wanted a casual workforce without having to pay the casual rates. He tried to remove penalty rates, annual leave and sick pay.

“Even though all of the workers are employed on a permanent basis, they would have had no guaranteed hours under this agreement. To top it all off there were no pay increases included.

“We welcome SDP Drake’s decision but a further problem remains. At the moment these workers are still covered by an old non-union agreement that includes the same disadvantages that were rejected by SDP Drake. Right now these young workers are legally being paid significantly less than the Award.

“While there is a lot of talk about the possibility of Tony Abbott bringing back Work Choices, for these workers Work Choices is still very much in place.

“UNITE has lodged an application for the old agreement to be terminated and for the workers to be brought back onto the Award. We hope that Fair Work Australia recognises that it is in the public interest for these young workers to be afforded industry standard conditions.” Anthony said.

To read SDP Drake’s full decision click here.

Listen to the interview here:

3crcast-2009-11-22-16774

Stick Together airs on 3CR community radio in Melbourne on Sundays at 10 – 10.30AM, and is repeated Thursdays 6 – 6.30AM. It is Australia’s only national radio show focusing on union and workplace justice issues. It broadcasts each week on the Community Radio Network, the satellite service of the Community Broadcasting Association of Australia, to stations nationally Wednesdays at 6.04PM.

Subscribe to the weekly podcast, or listen to recent podcasts.

http://www.3cr.org.au/

The protest was reported in the two local papers:

Heidleberg and Diamond Valley Weekly:
Bakery Workers stage uprising over pay
by Alana Schetzer

A bunfight broke out at a St Helena Bakery last week, with staff complaining over pay and conditions offered in a new work agreement.

A reported 50 Bakers Delight employees stages a protest outside the Aquaduct Road store on Wednesday, November 4, demanding owner Wayne Price guarantee their hours and give them penalty rates and holiday and sick pay.

About 100 staff from the St Helena, Diamond Creek and Laurimar stores are working under an expired 2005 agreement, which pays a higher hourly rate than required by law, but does not include holiday and sick pay and penalty rates for part time and casual staff.

Staff will vote on the new agreement this week. The new agreement offers similar conditions to the 2005 agreement, but it withdraws guaranteed hours.

Mr. Price has refused to negotiate conditions. The Unite union, which is leading the campaign on behalf of the workers, claims Mr. Price is taking advantage of his employees’ youth.

Unite Secretary Anthony Main said Award conditions were common in the industry and should be applied in this situation.

“It’s disappointing that Mr. Price makes his money off the backs of young people but refuses to pay them properly,” Mr. Main said. “just like anyones else who works antisocial hours, these workers just want to be compensated appropriately. If he wants to choose to deny his workers penalty rates, then perhaps people will choos more carefully where they shop.”

A 17-year-old employee, who did not want to be named, said the agreement on offer was unfair. “People are standing up for their rights,” she said. “It’s outrageous. We’re hoping everyone will vote no; that should send a clear enough signal to him.”

Baker Delight spokeswoman Philippa Elder said work agreements were solely between franchisees and their employees.

“Each bakery can have its own agreement,” she said. “We support our franchisees and staff to work harmoniously together to work out what is best for everyone.”

Ms. Elder said if the workers rejected the agreement, the bargaining process would start again. She said any agreement must comply with Fair Work Australia and would not disadvantage employees.

Mr. Price did not return calls to comment by the time H & DVW went to press.

Diamond Valley Leader:
Right to decent crust by St Helena workers
by Sarah Dailey

JUNIOR staff from three local Baker’s Delight stores have protested against “unfair” working conditions and the use of video surveillance.

Bakery employees, who are mostly secondary school students, organised the protest last Wednesday at the St Helena shop, rallying to change their workplace agreement, which does not include penalty rates, sick leave or holiday pay.

UNITE Union, which supports fast food and retail workers, helped arrange the protest and a Facebook site has also been set up to boost the campaign.

A 17-year-old employee from St Helena, who did not want her named published, said staff found the negotiation process with their employer, Wayne Price, intimidating.

She said the staff had not received any safety training and were under constant camera surveillance.

“He watches us over surveillance and then calls up and yells at us, or gets managers to yell at us,” she said.

Mr Price, who owns Bakers Delight stores in St Helena, Diamond Creek and Laurimar, would not comment and referred the DV Leader to Bakers Delight head office.

Company spokeswoman Philippa Elder said franchises operated as individual businesses and negotiated their own workplace conditions.

Mr Price has offered staff a nominal increase in the base rate in lieu of penalty rates, sick leave and holiday pay.

Very soon Bakers Delight workers at St Helena, Diamond Creek and Laurimar will have to vote on whether to accept a new workplace agreement. Unfortunately Bakers Delight has a history of trying to take advantage of young workers. In 2005 they were one of the first companies to use John Howard’s IR laws to undermine Award conditions. The current agreement is a legacy of this time and is one of the worst in Australia.

We don’t want to see something similar get through again. UNITE has produced the following leaflet to make sure you know exactly what you are voting for.

The proposed agreement is worse than the Award!

The agreement being put forward by your employer, Mr. Price, is not like most other agreements in Australia. Usually agreements extend upon Award conditions and lock in annual pay rises. Mr. Price’s agreement does not do this. The proposed agreement instead rearranges things to create a situation where you have sold off things like penalty rates, sick pay and holiday pay in exchange for a tiny bit extra in the base rate.

If you ever work evenings, nights or weekends you will be disadvantaged. If you miss work due to illness or have a holiday in the next 4 years you will also miss out on pay. ALL workers will miss out on something.

It is the legal responsibility of the employer to properly explain the agreement to you. The employer should also make clear the differences between the Award, the old agreement and what they are proposing. They should give you a copy and show you exactly how their proposal differs from industry standards. Make sure you do not vote for something you have not seen or read.

UNITE also wants to make sure that the voting system is fair. Any vote should be held at a time when everyone can attend, not when most people are at school or university. Last time Mr. Price held the vote on a weekday when many workers were at school and didn’t offer to pay people for coming in to vote. This is not a proper process and should not happen again.

Why is Mr. Price undermining industry standards?

One argument as to why Mr. Price is refusing to comply with industry standards is that he can’t afford to. Despite asking for proof, neither UNITE or Fair Work Australia have seen any evidence that the business is financially unstable.

To the contrary we firmly believe that his business is thriving. Compared to what the company turns over every day the amount paid out in wages is tiny. Other bakeries and retail stores across Australia manage to pay penalty rates and not go broke. Why are Mr. Price’s stores so different?
It is obvious that in every business there is constant conflict between the amount of profits made by the employer and the wages paid to the workers. We argue that the workers play an integral role in the running of the business. On this basis we think you should be compensated appropriately.

At the same time as saying he can’t afford it, Mr. Price is also saying his proposed agreement is better than the Award. This is clearly a contradiction. Apart from some vague references to flexibility, Mr. Price has been unable to explain exactly how you will be better off. While the proposed agreement gives the employer the flexibility to cut shifts and deny pay rises, it guarantees employees like you very little.

What happens if you vote ‘YES’?

If you vote ‘YES’ for the proposed agreement it will determine your pay and conditions for the next 4 years.

You will be disadvantaged from the very beginning. On January 1st next year new laws come into place that will improve Award wages and conditions. Many Bakers Delight workers would be re-classified to a higher base rate than the current Award. So while the proposed agreement may pass the no disadvantage test now, it probably wouldn’t after January 1st. We are concerned that Mr. Price is trying to rush a new agreement through before the changes take place.

In many ways, the proposed agreement is worse than what you are on at the moment. While it does include an increase on the base rate it leaves out other things like guaranteed hours, rules on ordinary hours of work and a review of pay rates every year.

Voting ‘YES’ will also mean the continuation of insecure hours. At the moment you are employed on a permanent part time basis but you get treated as casuals. This will continue under the proposed agreement. You will have no security of hours or guaranteed shifts. At least under the current agreement you are entitled to a minimum of 12 hours per fortnight. This is not the case under the proposed agreement. You will be employed under casual conditions but not be paid the 25% casual loading casual employees are entitled to!

Voting ‘YES’ will also mean that you are not guaranteed any pay rises to keep up with the cost of living. The only time you would be eligible for a pay rise is if the minimum wage goes up. This doesn’t always happen.

If you vote ‘YES’ you are basically voting for an agreement with no penalty rates, no holiday pay, no sick pay and no pay rises. You will be locked into this agreement and will not be able to get out of it. We strongly urge all workers to vote ‘NO’ for the proposed agreement. It undermines industry standards and will leave you worse off compared to the Award.

Your vote will effect more than just yourself and your fellow work mates. If other employers see Mr. Price getting away with ripping off young people they will try and follow suit.

What happens if you vote ‘NO’?

Voting ‘NO’ to the proposed agreement will mean that Mr. Price will have to make some improvements and you will get to vote on it again. You should keep voting ‘NO’ to the proposal until you are 100% happy with it.

Remember, you can’t get into any trouble if you vote ‘NO’.

Mr Price’s lawyers made it very clear that the proposed agreement was designed to undermine the Award as much as possible while still passing the no disadvantage test. Mr Price has a history of walking the fine line between legal and illegal agreements. While his 2005 agreement just passed the no disadvantage test, his 2007 agreement was deemed illegal. His lawyers have admitted that you are being disadvantaged under the current agreement. We urge you not to let this happen again.

Voting ‘NO’ on the proposed agreement will send a clear message to Mr Price that you will not put up with being disadvantaged anymore.

Voting ‘NO’ would make it very likely that Fair Work Australia terminate your current agreement and you would revert back to the Award. Reverting to the Award would improve the wages and conditions of all workers who currently get paid according to the agreement.

We know you work hard and deserve better.
Don’t accept one of the worst collective agreements in Australia.
Say ‘NO’ to the proposed agreement.