The Fair Work Commission (FwC) has dismissed an application by H&M to approve their 2016 enterprise agreement on the basis that it did not satisfy the Better Off Overall Test (BOOT).
The decision, presided over by FwC deputy president Geoffrey Bull on Monday, brings an end to a lengthy dispute over the agreement between H&M and the Shop, Distributive and Allied Employees’ Association (SDA) as well as Josh Cullinan, who heads up the unregistered Retail and Fast Food Workers Union (RAFFWU).
According to the approval application, an analysis of 50 randomly chosen casual rosters by the SDA found that two out of 50 employees were worse off compared to the award under the agreement.
The central claims made by the SDA related to the lack of an overtime clause in the agreement and the ability of H&M to roster employees on every Sunday, whereas the award provides that a maximum of three Sundays in four may be rostered.
The SDA raised further concerns about insufficient break times, and working hours being averaged to ensure that employees weren’t being asked to work on weekday evenings and weekends too often.
Cullinan argued that the loss of penalty rates on weeknights and Saturdays and a lower penalty rate on Sunday leaves many workers worse off than the award. According to Cullinan, any non-casual employee working more than 60 per cent of their hours after 6pm on a weekday or Saturday would be worse off than the award under the agreement.
In response, H&M submitted that the agreement left salaried employees better off overall because it required them to ensure minimum salaries for all hours worked met the award and included additional benefits such as longer breaks, parental leave, volunteer leave and increased notice of termination.
H&M also said that their own internal analysis indicated that the highest percentage of hours worked by an employee on weekends was 51.9 per cent.
SDA national secretary Gerard Dwyer expressed his interest in renewing negotiations with H&M in the establishment of a new agreement.
“The SDA now seeks the opportunity to negotiate an agreement with H&M that contains fair pay and working conditions and complies with the conditions of the FWC’s BOOT test,” he said.
Australian Retailers Association chief Russell Zimmerman did not want to comment on individual cases, but told Inside Retail that circumstances are reaching a point where Australian retailers are finding it difficult to compete with their counterparts in the US and UK.
Zimmerman pointed to the trends in federal enterprise bargaining report released in Q1 2016, which found that in 2013, there were 1,248 retail enterprise agreements compared to only 263 in 2016.
H&M did not respond to a request for comment.
