Young juice bar worker wins back pay and penalty rates

You’ll recall that 16-year-old Amber Oswald was sacked from her job and ‘rehired’ the same day on an AWA, at a lower pay rate and with penalty rates abolished, when the juice stand she works for was sold. The new owners tried to invoke the worst-case scenario of the new WorkChoices industrial relations laws on all their newly inherited employees.

In the AWA that was presented to Ms. Oswald by Cherilyn Coad (d/b/a Pow Juice Pty Ltd), the new owner of the Pulp Juice bars, Ms. Oswald’s pay was cut from $9.52/hr to $8.57/hr and weekend and public holiday penalty rates were abolished. This reduced her pay by $5.70 an hour on Sundays and by as much as $11.25 an hour on public holidays.

Last Sunday afternoon, I spoke at length with Amber’s dad, Phil Oswald, in the hopes he could add to the detail already published in the SMH’s followup– and boy, did he ever add detail.

According to Mr Oswald, the AWA which Amber was asked to sign contained a clause enjoining employees from engaging in ‘conduct which reduces the profitability of the company,’ effectively giving the company the lawful ability to sack employees for blowing the whistle- or asking for a raise.

Amber refused to sign the AWA. Her refusal to sign is just about all that saved her from loss of pay and conditions compared to the award, if the Australian Industrial Relations Commission (AIRC) ruling is to be believed. Ms. Oswald was actually told by her boss that if she didn’t sign, she would not be paid at all.

What the juice bar was counting on was unquestioning cooperation from workers in giving away their pay and penalty rates. Much to her credit, Amber didn’t take it lying down- she took it to a hearing before the AIRC.

Pulp Juice ‘consultant’ Andre “It’s not about what’s fair, it’s [about] what’s right – right for the company” Dowling and legal representative Ben Thompson from Enterprise Initiatives (aka EI Legal, the firm responsible for drafting the new Pow Juice AWA) had agreed to appear before the AIRC on behalf of Pow Juice, the company which bought the juice bars from Pulp Juice. However, on the day of the hearing, Dowling failed to appear and Thompson claimed to be unprepared to argue the matter.

EI’s Ben Thompson attempted to dismiss the matter as Pow Juice having no case to answer- and in fact stated that he ‘did not know why he was appearing before the commission on the issue.’ Thompson argued that Ms. Oswald’s demand for restoration of her pay and penalty rates was merely “a media beat-up.”

Commissioner Peter Lawson was clearly irked by this tack and threatened Thompson with being held in contempt and revoking his ability to represent the juice bar company before the AIRC if he did not argue the case on merit of law. Commissioner Lawson commented that Thompson’s behaviour was “probably the most objectionable” he’d seen before the AIRC in “many, many years.”

Workers Online attended the hearing and reports:

Thompson had deliberately tried to “railroad” a proper application to the AIRC for assistance, he said, and warned him that his conduct hadn’t assisted his client’s case. Commissioner Lawson also criticised the employer’s Andre Dowling, saying he had provided “misinformation” to the Commission.

Commissioner Lawson ruled that Oswald’s refusal to sign the AWA meant that the existing award would continue to cover her position. Pow Juice agreed to compensate Ms Oswald for back wages owed on the basis of the award rates.

Even if Ms. Oswald had signed the AWA, the contract could not possibly have been enforcible on her signature alone as she is a minor. Workers under 18 cannot negotiate an AWA- or any other legally binding contract- without the signature of a parent or guardian.

Moreover, the proposed AWA could not have passed the ‘no disadvantage’ test. Ms. Oswald would have earned significantly less than she would under the award had she agreed to accept it.

As in several recent cases where employers have sacked workers only to try to rehire them at a lower pay rate on an AWA, Kevin Andrews has yet to implicate any flaws in the WorkChoices laws which are giving employers an unfair loophole to force workers into lower wages and sign away their penalty rates.

Andrews has made mention in some broadcast news reports I’ve seen that if a worker has been made redundant, they must be out of work with that employer for two months before they can be forced into a new contract- I’m waiting for a confirmation on that via inquiries placed with the SDA.

Phil Oswald noted that the AWA presented to Amber not only was around 15 pages in length but also contained clauses and references which would require that one necessarily have a copy of the Industrial Relations Act on hand– and be able to speak legalese- to be able to decipher it. Mr Oswald noted that WorkChoices will force the parents of under-18s into being industrial relations lawyers for their kids.

He’s not wrong, especially with the new constraints slapped on union representation by WorkChoices. Union stewards must now give a company 24 hours notice before appearing onsite. This gives employers a 24 hour window of opportunity to try to monster your teenage kids into signing things they simply could never be expected to understand. Teenage workers should be warned to consult with parents or guardians before they sign anything, as well as be informed that they cannot be sacked for refusing to sign an AWA.

The media spotlight is presently blazing on every new example of abuses of power which employers are exercising under WorkChoices and there have been numerous backflips by employers on draconian actions… but what will happen when the news cycle moves on? Surely, Kevin Andrews can’t wait for the day when unfair dismissals and job churning are so commonplace that reporting them would be like a daily column reviewing the previous evening’s sunset.

Last Sunday, Amber worked her first day at the juice bar after winning her case. We’ll have to wait and see if she has a tenable ongoing position now that Pow Juice has been required by law to pay her fairly.

One thing for sure, teens these days are wired beyond belief. When an employer is silly enough to mistreat even one of them, an entire high school can know about it in just a few minutes via SMS, MSN chat and email.

Smart employers won’t poison their local well of young labourers by squeezing them dry.

The rest will go bust.

-weez

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