Union moves to overturn ruling on penalty rates

Ewin Hannan
JUNE 20, 2014
THE AUSTRALIAN
A NATIONAL union has launched Federal Court action in a bid to overturn a contentious Fair Work Commission decision to cut the Sunday pay of casual restaurant workers.
Revealing the court action yesterday, United Voice attacked last month’s commission decision, which the Abbott government has hailed and employer groups have seized on to try to give momentum to their campaign to reduce penalty rates.
Acting national secretary David O’Byrne linked the Fair Work Commission decision to strident employer criticism of commission decisions and the government proposal to impose an appeals body over the tribunal.
“We respect the independence of the commission,’’ Mr O’Byrne said. “But I don’t think anyone can walk away from the pressure they are under from this government to have a more aggressive approach, and an approach that takes into account the extreme views of the federal government on this matter.’’
The government is due to make a decision soon on whether to establish the new body, which follows employer claims that the previous Labor government stacked the tribunal with pro-union appointees.
If it goes ahead, the body, headed by a Coalition appointee, would establish a new avenue for appeal against commission rulings.
Mr O’Byrne said there was no doubt the Coalition would “love’’ the commission decision reducing Sunday penalties “because they would see it as the thin end of the wedge for other industries to attack penalty rates’’.
Asked if the commission had taken “political considerations into account’’ when making the decision, he said there was no doubt the political environment of the commission was “heated and there are pressures being placed upon it, particularly with the concept of another parallel process being potentially established to review the decisions of Fair Work’’.
“It’s almost like, if you get it right or wrong, depending on your view, we’ll take it and have it reviewed by another layer of bureaucracy and another layer of the judicial process, which will hopefully in the eyes of the conservative government get the decision right,’’ Mr O’Byrne said.
Employers pushing for the creation of the new appeals body have said they hoped it would be more sympathetic to their arguments, including their bid to have deeper cuts to penalty rates.
“That creates an enormous pressure on the Fair Work Commission and it politicises that process,’’ Mr O’Byrne said.
He said the union’s legal advice was that the full bench had erred in finding that an earlier decision by Deputy President Anne Gooley rejecting the employer bid to cut Sunday penalty rates contained appellable error.
While the full bench said the 50 per cent penalty rate paid to restaurant employees on Sunday was generally appropriate, it ruled that an additional 25 per cent loading paid to casuals tended to overcompensate introductory-level casual workers.
As a result of the decision, which is due to apply from July 1, those workers on the lower classifications will have their pay cut by about $4 an hour, or 14 per cent, for Sunday work.
Retailers have said the commission decision had caused “excitement’’ among employers who would seek to use it to try to cut penalty rates applying in other sectors.