19 May Enterprise Bargaining Alert – Coles Case
Enterprise Bargaining Alert – Application to terminate Coles Agreement
Employers may be aware of an application to terminate the Coles Supermarkets Enterprise Agreement. The application has been made by a Coles night-fill worker. This has been on the basis that this employee and others working a similar pattern of hours, were not ‘better-off overall’ under the Agreement, than the underpinning Retail Award which would otherwise have covered her.
Although the employees’ application was opposed by the employer (Coles), the Commission has determined that it is in the ‘public interest’, for the application to be considered on its merits.
It is considered that this case may have widespread implications on the interpretation of the ‘better-off overall test’ and how it is applied to Enterprise Agreements (EA). Under section 193 of the Fair Work Act (2009 Cth), an EA passes the Better-Off Overall Test (BOOT) if the Commission is satisfied that an award covered employee would be better off overall under the EA. Previously, the test has been applied by comparing employees under the award as a whole, rather than every individual employee at a worksite.
It is considered that if this application to terminate is successful, this could result in other EA’s potentially being challenged on the basis that individual workers covered under those Agreements may individually not be ‘better-off overall’.
We will continue to monitor the progress of this matter and keep members informed of the outcome.