Woolworths and Coles are at risk of facing compensation claims potentially worth hundreds of millions of dollars following a recent court ruling that mandates employers to consult staff before scheduling them for public holiday work. This development arises from a significant decision in September, which has led to a recalibration of what constitutes fair treatment for employees during holiday periods.
According to law firm Adero, they plan to incorporate this new claim into an existing underpayment lawsuit against the supermarket giants. The firm has indicated that the amendment to its Federal Court statement of claim will occur within the next few months. The implications of this ruling are profound, as Woolworths’ backpay obligations are already estimated to reach around $530 million, while Coles anticipates a total nearing $300 million. Legal experts suggest that these figures could escalate significantly with the addition of the new claims.
The precedent for this situation stems from a recent case involving BHP, where the mining company was ordered to pay $83,700 in compensation to 85 workers for not consulting them prior to scheduling work on Christmas and Boxing Day. Each worker received amounts ranging from $800 to $1,100. This ruling emphasized that the Fair Work Act requires employers to seek employee consent for holiday work, allowing them the opportunity to refuse on reasonable grounds.
Rory Markham, principal at Adero, highlighted the challenges faced by store and department managers who are often required to work during public holidays without the flexibility to decline. He pointed out that supermarkets often prioritize salaried managers for holiday shifts to minimize costs associated with hiring additional staff.
If the court permits Adero to amend its claim, it would enable the law firm and its group members—numbering around 40,000—to access the class action’s limitation period, which dates back to 2013. This could result in public holiday claims extending over a span of 13 years.
Markham asserted that the BHP ruling could serve as a benchmark for assessing compensation for similar claims in the retail sector. He noted that the judgment indicated a profit-driven motivation rather than a necessity for business operations. This is particularly relevant in the retail industry, which employs a significant number of women who often bear additional family responsibilities, making them more vulnerable to exploitative scheduling practices.
A case management hearing is scheduled for December 2023, where the court will evaluate whether Adero can legally adjust the existing matter. In response to inquiries, a Woolworths spokesperson confirmed receipt of correspondence from Adero but stated that no formal claim had yet been lodged. Coles declined to provide comments on the situation.
The Retail and Fast Food Workers Union, represented by secretary Josh Cullinan, expressed renewed commitment to addressing these issues following the BHP compensation orders. Cullinan stated that the decision opens avenues for employees to hold employers accountable for failing to consult them regarding holiday work. He emphasized that many workers remain unaware of their rights concerning public holidays, often believing they must work if it falls on their scheduled shifts.
Additionally, Bernie Smith from the Shop Distributive and Allied Employees Association warned employers to be mindful of their responsibilities leading up to the holiday season. He reiterated that workers should not be automatically rostered for work on public holidays without consultation, emphasizing that employees have the right to time off.
As this situation unfolds, the potential financial ramifications for Woolworths and Coles underscore a growing trend toward greater employee rights within the Australian workforce. The outcome of this legal battle will likely set significant precedents for how businesses manage employee scheduling and compensation moving forward.
