Legal Analysis Of Discrimination And Underpayment Of Workers In Woolworths Essay.

Discrimination and Underpayment in Woolworths

Watch the following YouTube clip. 

rightsED: Young people in the workplace (Links to an external site.)Links to an external site.

REQUIRED:

• Assume what happened to the two workers (LEANNE and KENNY) happened in Victoria, Australia.
• Advise LEANNE and KENNY about their legal rights.  For example, you could discuss racial discrimination. Race is an attribute in section 6 of the Equal Opportunity Act 2010(Vic) as well as in the relevant provisions in the Fair Work Act 2009 (Cth) and other federal legislation. 
• Ensure you refer to relevant sections and relevant case law (if applicable); Marks will be deducted if you discuss laws which are not relevant.
• Your answer must discuss BOTH State legislation and Federal legislation.
• When discussing discrimination, you should identify whether the discrimination is direct discrimination or indirect discrimination.
• Discuss the process each relevant commission or court will undertake. For example, if the employee complained to Australian Human Rights Commission, what is the process?  Will it investigate first?  Then conciliate?

When faced with a factual hypothetical question, follow the following steps:

1. identifythe relevant legal issues
2. applythe legal principles from cases or statute
3. developlegal arguments from these principles
4. arrive ata considered conclusion.

The emphasis is on the application of the law in the context of a problem rather than merely stating legal principles. 

2.News Article Analysis

Worker moves to bin Woolies' deal in pursuit of $1 billion back pay

Thursday, August 23, 2018, 12:33pm

As the SDA prepares to take a proposed deal to Woolworths workers, its rival union is backing a store supervisor's application to terminate the retailer's 2012 national agreement and claw back $1 billion in alleged underpayments.

Retail and Fast Food Workers Union secretary Josh Cullinan told Workplace Express today that he will represent Woolworths Moorabbin store level 3 service supervisor Loukas Kakogiannis in his FWC bid to terminate the nominally expired 2012 deal.

Releasing analysis (Links to an external site.)Links to an external site. allegedly establishing that Kakogiannis is losing $4000 under the agreement compared to what he would earn under the General Retail Industry Award 2010 (Links to an external site.)Links to an external site., Cullinan claims it leaves the "vast majority" of the 100,000 Woolworths team members up to a total of $1 billion worse off since the deal came into force.

Kakogiannis, who is a committee member of the unregistered union, says many of his colleagues are "losing even more" as the 2012 agreement pays "no penalty rates on weeknight evenings, during the day on Saturday and cuts the Sunday penalty rate".

"Casual loading is cut from 25% to 20% and 17 and 18-year-old staff have cut rates too," Kakogiannis says.

While the case echoes last year's withdrawn application by self-represented Coles nightfill worker Penny Vickers to revert back to the award by terminating that retailer's 2011 deal, it also has significant differences.

Vickers discontinued her application to bin Coles' agreement last November after the retailer agreed to a "transition payment" said to be valued at $10 million for about 77,000 employees and committed to a timeframe for conducting a vote on a new deal.

In contrast, the SDA, the AWU and AMIEU have already reached an in-principle agreement with Woolworths, ahead of a ballot planned for October.

The schedule appears to give Kakogiannis a far tighter timeframe within which to apply to terminate an active agreement, before a new deal is approved by the FWC.

However, Cullinan says he is "committed" to continuing negotiations with Woolworths to "reach a satisfactory agreement", suggesting that if the retailer pulls out of talks before RAFFWU members are ready, it might breach good faith bargaining requirements.

Legal Provisions for Discrimination and Workers' Rights in Australia

Characterising the grandfathering of current employees' base rates in the proposed deal as a wage freeze, Cullinan says "no freeze to base rates and a return to what has been stripped are fundamental" in order for RAFFWU members to endorse it.

If team members vote up the proposed agreement regardless, Cullinan has also expressed doubt that the FWC would be able to approve it in its current form.

After earlier this week alleging there were problems with Woolworths' notice of employee representational rights, Cullinan today said the deal would face "significant hurdles" in the FWC and he expected it would take a "significant period of time" for the tribunal to be able to approve it.

FWC "misled": RAFFWU

One area of similarity between Kakogiannis's bid to terminate the Woolworths agreement and that waged by Vickers is that both focus on the veracity of material provided to the FWC in support of the deals' approvals.

Cullinan says a "fundamental element" of the case will be "proper scrutiny about how the purportedly indicative rosters were put together", and by whom, in order to "show that the FWC should never have relied on it".

"The old agreement was approved because the FWC relied on misleading material from Woolworths and the SDA," Cullinan alleges, adding "they provided 'indicative rosters' which were nothing of the sort".

He claims the material "did not deal with workers working most of their hours on evenings and weekends" whereas "the vast majority of workers work at those times".

"Many of them, like Loukas, have lost a fortune," Cullinan says.

Cullinan was formerly an NTEU official and worked in his private capacity to assist part-time Coles worker Duncan Hart to quash the 2015 Coles deal after doing his own analysis.

In May 2016 an FWC full bench found it failed the BOOT, as it was "not satisfied that a consideration of all benefits and detriments under the agreement results in each employee and each prospective employee being better off overall under the agreement compared to the award".

As a result of the decision to quash that deal, Coles workers at the time reverted to the 2011 agreement.

All set to have a say: SDA

An SDA spokesperson told Workplace Express that the SDA was getting on with the job of delivering a new agreement "that protects take home pay, improves penalty rates, secures hard-won SDA conditions and ensures that all workers receive pay rises".

He said SDA delegates at mass meetings in July and August "endorsed a range of bargaining outcomes and authorised SDA negotiators to finalise negotiations on the outstanding matters".

"The outstanding matters were addressed at four further bargaining meetings and an in-principle agreement was reached with the SDA, the AWU and AMIEU," the spokesperson said.

He added that about 1000 SDA delegates "representing tens of thousands of SDA members" would again meet next week to consider the final proposal.

"Woolworths workers will all have an opportunity to vote on any new EBA proposal," he said.

Updated August 23, 2018, 4.15pm: A Woolworths spokesperson this afternoon responded to a request for comment, stating that the retailer was "surprised to learn of this application through a press release given we have been in negotiations with RAFFWU over a new agreement for more than six months".

He said the company had "every confidence in the validity of our existing enterprise agreement and will respond to the application as required".

"In the meantime, we will continue to work hard on finalising a new agreement that seeks to provide the certainty and improved conditions our team members are looking for."

The spokesperson said the proposed deal "already has the in-principle support of the SDA, AWU and AMIEU" but that Woolworths was still "awaiting RAFFWU's response".

Your approach should be to write about each key paragraph of the article.   Identifying the key legal words or phrases in the article and explain what they mean (definitions).  Next, provide a more detailed discussion of how these legal concepts relate the matters being discussed in the article.  
When defining and discussing the law, you must refer to appropriate sections of legislation and/or appropriate cases.

Discrimination and Underpayment in Woolworths

Discrimination refers to the unfair treatment with the varied group of people which may be based on factors such as nationality, sex, race, colour, age etc. (Smith, 2017). Discrimination is a common practice in many organization conducted either through the policies or the practices or the by the employer himself (Gumbus, and Grodzinsky, 2016). The government of Australia has taken the various steps to prevent discrimination towards the employee by introducing statutory norms. With this regards, the government built the various Acts which describe the rules and regulations which are mandatory to be followed by corporate entities operating in Australia. The present study revolves around the case scenarios of discrimination at the workplace by the employer. Further in this study identification of discrimination and also analysis of the legal right available to the worker is done to protect their interest from the prejudiced behaviour by the employer. Apart from this, the study also covers the wage structure of the organization. In this study the comparison between the national agreement and general retail industry award also stated. Further, the proposed amendment in the SDA agreement also described in this study.

The given study is related with the young people who were working at a workplace and suffered from the discrimination, harassment and Bullying. In the given study the young workers, Leanne and Kenny were suffered from terrible employment terms. At the working place, the more priority was given to the male employees. At the time of the interview by the employer of the company, asked offensive questions from the candidates. Along with this aspect, there are so many other things prevailing in the organization which leads to discrimination, harassment and Bullying with the employees of the company.

Discrimination takes place on the basis of the background or certain features; the person is treated as less positive as compared with another person or the group of person (Henry, and Powell, 2015). Further the discrimination occurs at several point of time between the employer and employee relationship, which consist of at the time of appointing the staff, norms and condition related with the appointment or the benefit which are provided by the employer as a part of the employment, at the time when the person is designated for the training, transfer or enhancement and much other time (Fredman, 2017). In the present study, the employer asked irrelevant questions lead to victimization which indicates unethical practices employed by the employer.

Legal Provisions for Discrimination and Workers' Rights in Australia

Harassment takes place on the basis of the sex, incapacity, culture and age of the person; the person is treated as less positively as compare with another person or the group of person.  The harassment also consists of expressing abusive comments about the specific culture, transferring the emails or text messages which are not obvious, presenting ethnically violent, insulting about the incapacity of the person or inquiring about the private life of any person and so on. In the present study, since the worker is the female, the manager of the company does not prefer the female recruiter and is downgrading young female employee.

According to the Fair Work Amendment Act 2013, bullying means allowing or conducting frequently awkward activities by the individual at the workplace towards another person by which the issues related with the health and safety arises (French, Boyle, and Muurlink, 2014). Bullying behaviour consists of physical or verbal misrepresentation, blaring aggressive language, rejecting employees, emotional provocation, unnecessary pressure, allocation the work which is not related with the employment (Pekarek & et al. 2017). Appointing the employees for unreasonable or the difficult task, intentionally change the work pattern which is not convenient to the employee, not share information with the particular employee so that the performance of the worker gets adversely impacted (Bray, and Power, 2017). In the given video it has been seen that there is workplace discrimination, due to the different approach of training of male and female employees. Male employees were given better training, but the female employees were totally neglected. In this video, the female employees seek to learn more advanced things, and she was quick and talented, but the manager and boss were not allowing her for the same,  in contrary, they instructed her to only concentrate more on basics.  This activities by the employer at the workplace affects the working performance of the female worker as if the female worker also have the equal chance of obtaining the training then this leads to the improvement in the performance of the female workers also

On the basis of the above analysis, it has been seen that the worker of the organization suffered from the discrimination, harassment and the Bullying because the employer of the organization did not treat all the workers equally. However, the employer of the organization is accountable for the environment in the workplace, and the employer should consider all the employees equally. The government of Australia built the various rules regarding the safety and security at the workplace, and it is mandatory for all the organizations to follow all the norms applicable to them. The government of Australia established various rules, regulations in the federal and the state anti-discrimination law as well as in The Fair Work Act 2009, which elaborate about the certain type of working environment which are considered as in contradiction of the law.

Proposed Amendments to the SDA Agreement

Legal principle related to the harassment, discrimination and bullying 

The government of Australia take various measures to remove the discrimination from the country. With this regards government has implemented various Acts such as the Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975, Sex Discrimination Act 1984, and the Australian Human Right Commission Act 1986 (Australian Human Rights Commission, 2018).

The Australian Human Right Commission Act 1986, state the various rules, regulation and norms which ensures the safeguarding of the employees by the discrimination at the workplace. Under this Act, the employee can make to complaints about the discrimination, harassment to the Australian Human Right Commission which is covered under the federal anti-discrimination law (Australian Human Rights Commission, 2016).  After the filing of the application, the commission itself look into the matter and analyse and address the complaint filed by the applicant.  Moreover, for filing the complaint under the Human Right Commission Act, the applicant does not require to pay any fee. Any employee, consumer or any other person who suffered from discrimination or the harassment can make the complaint (Galligan, and Morton, 2017). After getting the application from the applicant, the commission makes the inquiry from the employer or the organization or the person against the application is received and give the reasonable opportunity to answer and solve the complaint. Therefore in the present study, the worker Leanne and Kenny has right under the Human Right Commission Act to file the application against the employer at no cost. After receiving the application from the Leanne and Kenny, the commission investigates the matter defined in the application and give the equal opportunity to the employer to respond against the application (Australian Human Rights Commission, 2018). The commission always tries to help and resolve the complaint made by the applicant and in the opinion on the commission that discrimination has happened then commission after the inclusion of the recommendation report to the federal Attorney-general.

Further, it is contrary to the Act of the Discrimination law to behave unfavourably to an employee as compared with the other person. Further Sex Discrimination Act 1984 also defined the prevention of the sexual harassment at the workplace by employer or colleagues, or other persons at the workplace. The Racial Discrimination Act 1975 banned the inappropriate behaviour which leads to the racial discrimination and The Disability Discrimination Act 1992 also states the norms to prohibiting the discrimination on the basis of the incapacity of the person. Further in the Civil Right Act 1964, Title VII safeguards the employees or any other person against the discrimination which is based on the colour, gender, nationality or the culture. This Act also prohibits the employer for any adverse action against the employee or any other person who affirm any action. Further, this Act says that it is illegal to discriminate any employee or the person on the basis of the certain features.

Apart from the above the government of Australia also passed the Fair Work Act 2009 with the objective to set up the rules and regulations at the workplace. It describes all the principle and the procedures for the employment which should be known to all the organization and the business firms. This act states the norms and the situation of the employment, rights and accountability of the employee, employer and the industries in relation to the employment, passivity and the implementation of the act and by establishing the fair work commission and fair work regulator supervise the activities. Moreover, it is mandatory for all the organization to follow all the rules and guidelines which are stated in the Fair Work Act 2009.

For enhancing and enabling the fairness at the workplace, in Australia the Equal Opportunity Act 2010 came into enforcing. The basic objective of this law is to identify the discrimination, offences and the harassment and take steps to exclude it.

On the basis of the above analysis it has been seen there are so many measures implemented by the government for the protection and the safeguarding of the employees at the workplace. The workers Leanne and Kenny by adopting the above laws can protect themselves by making the complaints against the organization or the employer of the organization.

Direct Discrimination or Indirect Discrimination

Direct Discrimination occurs at the time when the employer treats less favourably only to the particular employee due to the certain features. Indirect discrimination arises due to the policies, practices, rules, regulations by which the all employee of the company get adversely affected. In other words, it can be said that the due to the direct discrimination particular employee of the company get affected however due to the indirect discrimination all the employees get adversely affected (Zhang, Wu, and Wu, 2016).

In the present study at the time of the interview, the employer asked an irrelevant question with victimization; it is regarded as the Direct discrimination against the employee as in this the particular employee gets affected due to the misbehaviour of the employee. Further, the gender discrimination with the female employee is considered as the indirect discrimination because the all the female employee suffered in the organization due to the gender discrimination practice in the organization. Moreover, in the company, the training also provided to the male employee only, it also leads to the indirect discrimination in the organization.

From the above analysis, it has been observed that the organization gave priority to the male since the training provided only to the male employees of the organization and the female are supposed to focus only on the basic aspects. The company did not follow the fair practice. Therefore, the employer of the company was accountable for all the prejudicial impact for the female employees.

The present study is about the termination of the national agreement of 2012 with the workers of the Woolworth and recovery of the $ 1 billion of the suspected underpayment.  For this, the secretary of the retail and fast food workers union undertake the matter and represent the supervisor of the Woolworth in their fair work commission proposal for removing the national agreement of 2012. Since the supervisor of the Woolworth due to the national agreement 2012 dawn to the $ 4000 in comparison that he can earn according to the norms of the fair work commission Act which includes the General Retail Industry Awards 2010. Further the secretary stated that since the deal was implemented the majority of the worker faced the adverse condition with respect to the payment. Along with this, in this agreement on the weeknight evenings, during the day on Saturday and Sunday, no rates have been provided therefore the majority suffered even more. In addition to this, Casual loading also reduced from 25% to 20%.

Further the secretary is very dedicated for the discussion with the Woolworth so that accepted agreement can be made with the Woolworth.  For this secretary advising that if the matter was discussed before the member of the retail and fast food workers union are prepared then it may lead to breaking the good negotiation requirement. Further the secretary states that for the approval by the members of the RAFFWU, it is essential to remove restriction from the base rate and give back what has been exposed.  The secretary has suspected that even the members give a vote for the new proposal, but also FWC can approve in its current situation. Further the secretary said that it would go more difficult and require significant time for approving it.

Apart from the above, the secretary said that the old agreement approved by the FWC since the FWC trusted on the deceptive material from Woolworth. The majority of the worker worked at evening and weekends, even though the agreement did not consider those working hours.

Key terms and their meaning

Further, the SDA Coles Agreement act defines the new enterprise agreement which ensures about the safeguarding for the current employee to take home pay, enhance the penalty rate which is better than the award rate, better norms as comparing the existing agreement and increment for all the employees (SDA COLES AGREEMENT SUMMARY DOCUMENT, 2017). This agreement is in compliance with the General Retail Industry Award. For the protection of the existing staff and growth of the wages in the coming year, the SDA work in a very efficient manner so that the pay structure can be improved.

The AWU refers as the Australian Workers’ Union, which is the organization of the workers of Australia.  The main objective of the establishment of the AWU is to obtain the general aim of the worker such as availing the proper remuneration, benefit, issues related to health and safety and many more. The Australian Workers union is the one of the largest trade union in the world which consists of around one lacks members. Further, the union has a state, geographical or the industry based branches.

AMIEU refers to the Australian Meat Industry Employee Union, which is established with the main objective for the prevention of any type of harsh behaviour towards the animal at the time of the production of the meat or the transportation of the animals from one place to another place. This union make the provisions related to the treatment of the animal, building the structure for the easy movement of the animal and take various measures for safeguarding the animals.  Further this union emphasis on the organization to make plans and procedures in such a way which will not make any adverse impact on the animals.

Impact of terms on the article

By considering the terms, in the May 2016, member of the FWC originate that the better off overall award (BOOT), which is based on the modern award was not for the benefit and the interest of the employee. Therefore the agreement improves the situation as compared with the award, due to this the agreement of 2011 adopted by the workers.

The representative of the SDA, states that SDA is carrying an amendment which assists for the home pay, better rates for a penalty, obtain secure terms and condition and enable to all the worker to get their payment as and when arises. All the pending issues will be considered in the meeting of the SDA and will be according to the standard set out in the SDA, the AWU and AMIEU. Moreover, the representative said that The Woolworth has a chance to vote on the enterprise bargaining agreement.

On August 2018, the representative of the Woolworth said that the RAFFWU get agreed with the new agreement for more than six months, and the new agreement leads to the better conditions for the members.  Further he also said that the new agreement already as per the standard and the norms of the SDA, AWU and AMIEU, but still, the response from the RAFFWU is required.

The national agreement of 2012, states about the wage structure of the company. In the given structure the base rate is set up for the non-casual staff for different categories and different states. Further, in the agreement, the casual loading is defined as 20%, and penalty rates apply only for a number of hours (ANALYSIS DOCUMENT – TERMINATION OF AGREEMENT, 2018). However, as per the award, the base rate additional casual loading of 25% applicable and overtime rate or the certain hour, penalty rate and public holiday rate is also defined.

On the basis of the above analysis, it has been seen that the Woolworth is able to approve the new agreement with the retail and fast food worker union for the six months only. However, the new agreement is according to the principles contained in the SDA, AWU and AMIEU but also the support of the retail and fast food worker union is needed.

Conclusion 

On the basis of the above study, it has been concluded that it is the responsibility of the employer to ensure the fair and transparent working environment at the workplace. The employer should make the proper policies and practices which leads to the safety at the workplace. The government of Australia approve various rules and regulation which assist the protection of the employees at the workplace. Further, in this study, the direct discrimination and the indirect discrimination observed in the workplace. Along with this, the government also gave the various rights to the worker, by which they can make the application against the discrimination and can protect themselves from the terrible working environment at the organization. Apart from the above, it has been seen that Woolworth is succeeded in the implementation of the new agreement for the six months with the agreement with the retail and fast food worker union. The new agreement is better than as compared with the existing agreement, and also it is according to the norms set out in the SDA, AWU and AMIEU.

References 

 Analysis Document – Termination of Agreement, 2018. (Pdf). Available from < https://cdn.workplaceexpress.com.au/files/2018/Cullinan%20180823%20Woolworths%20Agreement%20%20Award%20Analysis.pdf>. [Accessed on 11 October 2018].

Australasian Meat Industry Employees Union, 2018. Welcome to the web site of the Australasian Meat Industry Employees Union (Online).Available from < https://amieu.asn.au/>. [Accessed on 11 October 2018].

Australian Human Rights Commission, 2016. Willing to work: national inquiry into employment discrimination against older Australians and Australians with disability (2016). Sage,

Australian Human Rights Commission, 2018. (Online). Available from < https://www.humanrights.gov.au/>. [Accessed on 11 October 2018].

Australian Human Rights Commission, 2018. A quick guide to Australian discrimination laws (pdf).Available from < https://www.humanrights.gov.au/sites/default/files/GPGB_quick_guide_to_discrimination_laws_0.pdf>. [Accessed on 11 October 2018].

Bray, A. and Power, C., 2017. The fair work commission's' new approach'. Precedent (Sydney, NSW), (141), p.27.

Fredman, S., 2017. Disability equality: a challenge to the existing anti-discrimination paradigm?. In Disability and Equality Law (pp. 123-142). Routledge.

French, B., Boyle, M.V. and Muurlink, O., 2014. Workplace Bullying in Australia: The Fair Work Act and its impact. New Zealand Journal of Human Resource Management, 14(2), pp.69-81.

Galligan, B. and Morton, F.T., 2017. Australian exceptionalism: Rights protection without a bill of rights. In Protecting Rights Without a Bill of Rights (pp. 27-50). Routledge.

Gumbus, A. and Grodzinsky, F., 2016. Era of big data: Danger of descrimination. ACM SIGCAS Computers and Society, 45(3), pp.118-125.

Henry, N. and Powell, A., 2015. Embodied harms: Gender, shame, and technology-facilitated sexual violence. Violence against women, 21(6), pp.758-779.

Pekarek, A., Landau, I., Gahan, P., Forsyth, A. and Howe, J., 2017. Old game, new rules? The dynamics of enterprise bargaining under the Fair Work Act. Journal of Industrial Relations, 59(1), pp.44-64.

SDA COLES AGREEMENT SUMMARY DOCUMENT, 2017. (Pdf). Available from < https://www.sda.com.au/media/Coles-Summary-Doc-FULL.pdf>. [Accessed on 11 October 2018].

Smith, K., 2017. Discrimination. The Wiley?Blackwell Encyclopedia of Social Theory, pp.1-2.

The Australian Human Rights Commission’s Complaint Process: for complaints about discrimination in employment (ILO) (Online).Available from < https://www.humanrights.gov.au/complaints/australian-human-rights-commission-s-complaint-process-complaints-about-discrimination>. [Accessed on 11 October 2018].

Zhang, L., Wu, Y. and Wu, X., 2016. A causal framework for discovering and removing direct and indirect discrimination. arXiv preprint arXiv:1611.07509.