A Coles worker who says she's AU$33 (NZ$35)-a-week worse off under the supermarket's wage deal could help hundreds of thousands of employees get pay increases if she wins her landmark case.
Penny Vickers, a Brisbane mother of two, works evenings and weekends stacking shelves for the retail giant. She says that she and others on unsociable hours are losing out under the agreement negotiated between Coles and her union.
The 42-year-old says the hours suited her because her husband works during the day, but now she has realised she and more than half of her co-workers nationwide are worse off under the deal, she is determined to fight for them all to get backdated pay.
The former paralegal says the enterprise bargaining agreement that workers were persuaded to sign has left shift workers earning less than they would make under the normal pay award.
And this isn't just about Coles. Her case may have massive implications for staff in other industries who are missing out on extra pay under a poor deal.
'I WILL GET BACK EVERY CENT'
Vickers works from 8pm to midnight on Tuesdays and Wednesdays and 6 to 10pm on weekends.
The enterprise agreement she signed means she gets slightly higher base pay but lower penalty rates.
Under the regular pay award, Sunday workers who earn AU$19.44 (NZ$21) get double time, but under the EBA, they earn AU$21.93 (NZ$24) with time-and-a-half. Staff who work Saturdays also get time-and-a-quarter, but under the EBA, they get nothing.
She says staff were never told they needed to compare the enterprise agreement to the pay deal. As a union representative for the Shop Distributive & Allied Employees Association (SDA), she persuaded others to sign the agreement she was told was a great one.
Now, she feels responsible to sort out the mess.
"I have asked the commission to determine whether I was misled and unintentionally misled others," she told news.com.au. "Coles and the union have used every delaying tactic. I don't have a problem with that. I believe I will get back every cent.
At a store level, Coles is a really good employer but I'm really concerned with the decisions made at management level. I think we've got problems and need to fix them.
"I don't think the commission has any choice but to backdate."
Vickers has only been working at Coles since 2012, and calculates she is owed around $3500. But she says she's doing it for the 40,000 other employees she believes will also be owed money.
She is being assisted in her representations to the Fair Work Commission by her father Allan Truslove, a prominent actuary.
Their work has put the future of many existing EBAs in doubt.
THE 'BETTER OFF OVERALL' TEST
The Fair Work Commission operates a "better off overall test" for EBAs, which have to show employees would be better off under the deal than their regular pay award. This used to be applied by looking at employees as a whole, rather than every individual.
But Vickers contends that many employees work unsociable hours.
Last year, trolley collector Duncan Hart successfully challenged the 2014 EBA. Now, 74,000 Coles employees are covered by the 2011 agreement, and Vickers intends to have that struck down, too.
"My case is almost a continuation of that case," she said. "At a store level, Coles is a really good employer but I'm really concerned with the decisions made at management level. I think we've got problems and need to fix them."
Sarah Lock, national principal from Shine lawyers, said the drafting of enterprise agreements (EBAs) needs to be looked at more closely, by the employer, employees and their bargaining representatives, in particular when calculating the BOOT (Better Off Overall Test).
This is a test that compares the award entitlements against the draft EBA to ensure the employee is better off. The FWC will also check the BOOT test when lodged by the parties to ensure that is passes before certifying the EBA.
"Generally, the time-span of an agreement is four years, so in that time period it is possible that many economic, social and environmental changes are going to arise which may impact on the original rates first calculated and negotiated," she told news.com.au.
"For example, if there's a CPI [Consumer Price Index] increase or wage increase in the award, or amendments to the IR legislation (changes to penalty rates) these need to be considered to ensure that the entitlements (rates) under the award do not surpass those of the EBA.
"A solution would be a more standardised method or descriptive formula for calculating the figures for the BOOT."
BUT SOME EMPLOYEES COULD LOSE OUT
Employees who don't do a lot of overtime could lose out if the backdating was to remove their benefits from the EBA. Ms Vickers says she doesn't want to see this happen, only those who were worse off without knowing recompensated.
SDA National Secretary Gerard Dwyer told news.com.au: "The Fair Work Commission's reinterpretation of the BOOT has far reaching consequences for workers right across the country including over 700,000 in retail, fast food and hospitality.
"Where previously an agreement was deemed to be compliant if the workforce as a whole was better off under an EBA, the FWC's new interpretation of the BOOT indicates that each individual worker must be better off when compared with the relevant award.
"As a result, Enterprise Bargaining Agreements which were previously approved by members, business and the FWC are now deemed to be non-compliant. Workers operating under those EBAs may now be forced to revert to their existing Award.
"This means that the large majority of workers who received above award wages and conditions thanks to their EBA, may now lose them.
"A fulltime Coles worker reverting to the Retail Award from their EBA will lose around $90 per week and have their wages and conditions further cut, including an average nine per cent pay rise over three years, increases in base rates for 18 and 19 year old workers and new leave entitlements including a domestic violence leave clause.
"At Bunnings, employees would receive a cut to their weekly wage rate of $130 dollars if forced back onto the Retail Award.
"This massive cut to wages as a result of the cancelling of EBAs would constitute a massive blow to the take-home pay of hundreds of thousands of workers already facing a cut to their Sunday penalty rates due to the FWC's recent decision.
"The SDA is currently working to renegotiate new BOOT compliant EBAs that deliver strong wages and conditions for its members."
News.com.au has approached Coles for comment. The supermarket noted that the issue is before the Fair Work Commission. "Out of respect for the FWC process we will not be making any comment," a spokesman said.