On the case of Matthew Spencer

I applaud Matthew Spencer, I do. Here’s a kid who has enough nounce to rally 1500 signatures in his home town in aid of a cause he believes in.

The 17-year-old from Terang is out of a job because of the new retail award that now operates in his industry. He and six others used to work for one and a half hours after school. The job gave him pocket money and some petrol to put in his new car. He was learning the value of the dollar. But since the new award came into effect, his employer has been required to pay him for a minimum three hours per shift. And so, he’s been given the sack.

FWA is currently hearing a joint case from a number of retailers associations arguing a variety of difficulties they foresee with the new General Retail modern award. The National Retailers Association (NRA), in their submission to FWA, is terribly concerned for the students who may be disadvantaged by such minimum conditions.

Matthew sent a petition along with a sworn statement to Fair Work Australia (FWA) telling them how terrible the new minimum shift condition was. Fantastic! This country is short of politically active, interested, enthusiastic young folk!

I got my first job working in a greengrocer’s store. But the retail industry hires people other than students. It is a heavily casualised industry, one of the most award-reliant industries in the country, low-paid and unskilled. It hires mothers, and people who didn’t finish school. This isn’t the first time I’ve quoted the Fair Work Ombudsman as saying that the retail industry is ‘an industry which employs large numbers of young people and low-paid workers who may be vulnerable if they are not fully aware of their workplace rights’.

Okay, let’s be fair – it’s understandable that the NRA and their like-minded friends have this opinion. It’s their job to argue for such things. But Matthew Spencer? I wonder if anyone explained how these modern awards actually work.

Modern awards, like awards have always done, set the minimum set of entitlements and conditions for particular workers in particular jobs. If a group of workers and their employer decide that their award conditions don’t suit, they can negotiate a new set of conditions. These are called Enterprise Bargaining Agreements (EBAs). So, in practical terms, if Terang & District Co-op decided that they wanted to hire staff for an hour and a half after school, and the staff agreed, they could make an Agreement. Ta-da! All the kids get their jobs back.

The key word here is agreement. The award is there to provide minimum conditions in the absence of an agreement. So if I have to drive 45 minutes to get to work, I can’t be sent home after an hour unless I’ve previously considered the option and I’ve agreed to it. The award exists for people who aren’t politically active, interested or enthusiastic and, more importantly, who aren’t in a position to negotiate for a more suitable deal.

The unions have always championed minimum shift rules as a being a key element in preventing the exploitation of workers, especially those employed casually and who have very little control over their rosters. Even the Australian Chamber of Commerce and Industry (ACCI), the premier industry lobby in the country, recognises the minimum shift rule as an ‘understandable principle’.

Since losing his job, Matthew Spencer has learned that his boss should never have hired him to work a one and a half hour shift in the first place. Under his old award, the SDA’s Victorian Shops Award, he was entitled to a minimum payment of two hours per shift. In his statement to FWA, Matthew writes:

I understand that my employer has been told that they have to pay me some back pay because they did not pay me for a minimum number of hours. I do not want this back pay. I want my job back.

Well that’s very nice of you Matthew, but you don’t have to ask FWA to reduce the protections and entitlements of all casual workers in Australia’s retail industry just so you can get your job back. You need to ask your boss about the decision to sack you and six of your workmates rather than come up with an Agreement that would allow you to work the hours you want.

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  1. It is funny that it was a Liberal candidate who was supporting Matthew when he gave his petition to Julia Gillard’s office.

    I’m pretty sure it was also the Liberals who introduced Workchoices and AWAs. They didn’t exactly do many young workers any favours.

    In regards to making agreements, I think it is important to note that employees and employers may well make an enterprise agreement but the modern award still plays an critical role in protecting employees’ minimum entitlements.

    An agreement isn’t enforceable until it is approved by Fair Work Australia. And Fair Work Australia, when they consider approving it, have to consider if the agreement passes the ‘better off overall test’. That is, they have to compare the agreement to the relevant modern award and determine if employees would be better off overall covered by the agreement as opposed to being covered by the modern award, which establishes the minimum entitlements.

    So even though an employer and employees may agree to reduce the minimum shift period to one and a half hours, the employer would be struggling to show Fair Work Australia that the employee would be better off overall when the minimum entitlement under the modern award is 3 hours. Unless of course they doubled the minimum wage rate.

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