It is estimated that thousands of Australian workers working in a number of fields are employed under these “zombie deals” – which are completely legal due to a loophole in the Industrial Relations Act. “There are thousands of employers who made their own deals during the WorkChoices, and many of them are still alive today,” said Fitzpatrick. This is possible because, according to the applicable labor law, the employer only has to ensure that the base rate of the expired agreement corresponds to the minimum prescribed by the Fast Food Industry Award (FFIA). In this context, we recommend that employers check whether their company agreements have expired, in particular whether the agreement was drafted at the time of WorkChoices, and put themselves at the forefront of this issue. As the Merivale Group has shown, the demand of employees and/or trade unions to terminate an agreement can have a significant negative effect on a company that is not well prepared. For example, the Merivale Group not only received significant negative publicity regarding its outdated agreement, but only had 6 weeks to update its entire payroll system and convert its 3,000 employees in 70 locations at the applicable modern price. Merivale Group`s chief human resources officer said the company also needed to conduct a full review of its workforce and consider reclassifying some employees in line with the allocation. If an employer, employee or union applies to terminate an expired agreement on behalf of the employees and the Fair Work Board subsequently terminates the agreement, employers must pay their employees (at least from the date the expired agreement is terminated) the applicable modern premium rate. This often requires a comprehensive review and update of how an employer`s workforce is paid. However, any company agreement approved by the Fair Work Commission could operate legally until a party requests to terminate the agreement, they added. However, this only applies to the basic hourly rate of a company agreement. “Because this deal is completely legal, it has been legally paid,” McCabe said. Many outdated enterprise agreements have expiration dates, but that doesn`t mean they expire automatically.
“With some of these old WorkChoices agreements, because they were passed before 2009, it means that so many young workers don`t earn an hourly rate equal to the price. This is quite outrageous. In practice, these agreements may continue to govern workers` terms and conditions of employment, as section 59 of the Fair Work Act 2009 (Cth) states that a modern allowance does not apply to an employee if a company agreement applies (i.e. there is no “double” coverage). A company agreement will have full legal effect even after its nominal expiration date, even if its wage rates are lower than the premium rates. The nominal expiry date is only a “trigger” for other measures, such as the opening of collective bargaining by a union party or requests for a collective bargaining order (which require an employer to bargain in good faith). For example, if an operating contract was approved in 2008 for a period of four years and then expired nominally in 2012, an employee who is employed in 2017 and who falls under the expired contract will continue to be paid at the rates prescribed in the expired agreement. It is important to note that agreements made under the WorkChoices legislation have not been subject to the “Better-Off Global Test” and could result in a worse situation for employees than at a modern price. The WorkChoices Act was later repealed, but many of the agreements created during this period are still in place.
This created the term “zombie deals” in the media. A number of large corporations have made headlines because of their “zombie deals.” In particular, Justin Hemmes` hotel and restaurant empire, the Merivale Group, had paid its 3,000 employees in accordance with an outdated work agreement approved at WorkChoices. It was found that staff were paid significantly less than expected in the current Modern Price (“Price”) and, as a result, at the request of the workers, the Fair Work Commission (“Commission”), with the support of the union, terminated the Merivale Group`s agreement, which led to the company now being obliged to pay the applicable premium rates, this has resulted in significant disruption and impact on the business. An Australian law firm has also confirmed that it accepts class action lawsuits to recover any insufficient payment for all current and former employees of the Merivale Group. This has led to a double blow for Merivale Group, which could see an underpayment claim of between $15 million and $25 million. However, it is not clear whether an insufficient payment request can be successful, as the exploitation of zombie deals is legal and provided for by the FWA. Under Andrew`s daughter`s company agreement, seen by nine.com.au, employees were first given a higher hourly policy to compensate for not receiving weekend or holiday penalties and therefore passed the BOOT test. In a statement to The Signal, Laundy said he encouraged employees who feel they might be worse off to “ask the Fair Work Board to terminate their agreement.” I first came across this word, which was used to describe an agreement (as opposed to a boring or non-executive employee) after work choices, when those agreements began to exceed their expiration dates but survived. There are fewer of them now because they have been replaced or “terminated” by the Fair Work Board, using a much less dramatic and chaotic process than those depicted in the films. “I really don`t understand the discrepancy between how price is supposed to be the minimum standard – it`s not.
The minimum standard is an agreement that could have been reached 50 years ago. “We know that between 2006 and 2009, at least 4,000 contracts were registered in the hotel, fast food and retail sectors alone that have not yet been terminated. There are still hundreds of them that cover thousands of workers. However, unlike the cases discovered by the FWC, the use of “zombie agreements” is legal. When we talk about “zombie” deals for workers, we`re talking about workplace deals implemented in the controversial Howard administration`s WorkChoices era. While either party to the agreement may ask the FWC to terminate the agreement, this requires either an employer who wants to terminate an agreement that could save them money, or employees who know they have a smaller agreement and can do something about it. Tens of thousands of Australian employees are still unknowingly trapped in so-called “zombie” employment contracts written during the WorkChoices era, according to an investigation into ABC News` daily podcast The Signal. Other demands that workers may miss out on in these zombie deals include laundry allowances, overtime rates, occasional penalties, or uniform allowances. “Many of the agreements adopted by Fair Work between 2006 and 2009 during the WorkChoices period expired after a maximum of five years, i.e. no later than 2014.
But at the end of the day, if a worker doesn`t leave them, they`re further away,” Sowerbutts said. The case of NoniB and the Merivale Group shows this when the Fair Work Commission ordered the termination of contracts that had existed since 2011 and 2007 respectively. Companies were therefore required to quickly update and organize their payroll processes to ensure that their staff now received at least the minimum rates prescribed in the relevant award, resulting in negative publicity against organizations. However, between March 2006 (the effective date of WorkChoices) and April 2007, when the equity criterion was introduced, many workplace agreements were developed. And since the criterion of equity was not retroactive, the agreements created during this period exist in a kind of borderline state, neither dead nor alive. .