Penalty rates appeal goes to Court

scissors cutting many 50 dollar notes

The Fair Work Commission did not recognise the impact of penalty rates cuts on low-earning staff in the retail and hospitality industries, a court has heard

The appeal against the Fair Work Commission’s penalty rates decision by the Shop, Distributive and Allied Employees’ Association and United Voice began today, the ABC reports.

In February, the Commission made the decision to cut Sunday penalty rates in the retail, hospitality, fast food and pharmacy sectors.

For full-time employee pharmacists, this will mean a cut from 200% to 150% once the cuts are fully phased in, and for casual pharmacists, a cut from 200% to 175%.

The ABC reports that Herman Borenstein QC, who is representing both United Voice and the SDA, told the full court of five judges that “there is no consideration of the position of the low-paid and their living standards”.

The FWC did not meet its legal obligations when it made the decision to cut penalty rates, he said.

However the judges responded that the FWC had indeed examined the previous pay scales when making its decision.

“They’re doing the very thing you’re saying they didn’t do,” one of the judges said.

Jo-anne Schofield, National Secretary of United Voice, which represents employees in the hospitality sector, said today that the first incremental cut, of 5%, is “only the start”, with “bigger and harsher” cuts around the corner.

“Our legal grounds are simple,” she says.

“We believe the decision to slash penalty rates failed to have sufficient and proper regard to the cornerstones of our wage setting system – that in delivering a pay cut, the Fair Work Commission failed to consider ‘the relative living standards and needs of the low paid’.

“In handing down the decision, the Fair Work Commission stated that the cuts ‘would inevitably cause some hardship to the employees affected’.

“But they have cut these workers’ pay packets regardless. We are appealing because we believe the system is broken – a system that is there to protect relative living standards, not to lower them.”

The SDA, representing retail workers including pharmacy assistants, told AJP‘s sister publication Post Script in July that it was prepared for a “hard battle” and that it would continue to fight for the restoration of penalty rates even if the appeal is lost.

“Pharmacy assistants are already some of Australia’s lowest paid workers, and can’t afford, nor deserve, a cut to their weekend penalty rates,” its national secretary Gerard Dwyer said at the time.

Professional Pharmacists Australia has not joined the appeal.

However, it has written to Amcal pharmacies to seek confirmation as to whether they will cut penalty rates for employee pharmacists. The campaign, which requests that pharmacies advise PPA on their stance within seven days, comes two months after PPA held protests in front of Amcal stores across the country.

A spokesperson for the Pharmacy Guild said that its members should not feel pressured to respond to PPA.

“The letters are a thinly veiled threat to campaign against pharmacies if they have implemented the Fair Work Commission ruling and paid the lower penalty rates since 1 July,” the Guild says.

The appeal is scheduled to run over three days, to 28 September 2017.

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