Woolworths: The Fresh Fooled People
Today HR Nicholls releases its latest report - Woolworths: The Fresh Fooled People, that details how Australia’s industrial relations system is so complex that employers can overpay their workers and still be found to have underpaid them.
Woolworths didn’t set out to underpay its staff. It set out to simplify a system that has now become so unworkable that even the regulator has been found advancing interpretations the court has rejected.
In the recent Federal Court judgement against Woolworths and Coles there is a section that should stop every Australian business owner cold: a worker can be paid more than they are owed, and you can still be found guilty of underpaying them.
This is not a joke, rather it is the conclusion of Woolworths: The Fresh Fooled People, which dissects one of the country’s largest wage compliance cases and where the central finding reads more like satire.
The instrument at the heart of this farce is the 119-page General Retail Industry Award (GRIA) which reads as pure, uncut bureaucratic adrenaline.
It contains eight employee classifications, three types of employment, ten apprentice rates, seven casual age rates, seven permanent age rates, and an unholy lattice of overtime, shift and penalty loadings on top.
Multiply that all out and you get 1,424 separate rates of pay across roughly 26,000 words. The GRIA is one of 122 such awards strangling our economy and is not even the worst.
In this case, Woolworths didn’t get in trouble for plotting to shave cents off a teenager’s Sunday shift. Rather, it sought to do what so many businesses are forced to do and simplify arrangements to overcome this labyrinthine nightmare by putting its salaried managers on annualised wages with set-off clauses.
This time-honoured workaround lets companies pay people in aggregate, without having to install GPS trackers on every employee’s ankle to record the precise moment they cross the threshold of the dairy fridge.
Alas, that didn’t fly as under clause 18.1 of the GRIA, entitlements must be paid within the week or fortnight they accrue meaning a worker paid $200 a fortnight above the award all year cannot have that surplus offset against a $100 shortfall one fortnight when they didn’t expect overtime.
The fact that the employee took home more money than the award required is, and I cannot stress this enough, beside the point. Intent is irrelevant where what now takes priority is a system so complex that compliance becomes indistinguishable from error.
The crown jewel of the GRIA’s absurdity is the cold work allowance. This is a payment of 37 cents an hour, bumped up to 56 cents if the chamber is below zero, owed to an employee “principally employed” stocking the refrigeration section. What does “principally employed” mean? Nobody knows.
Does it apply when an employee briefly stocks the dairy shelf? Only when the task is their principal duty? Is it calculated hourly per shift? There is no clear, universally applied answer.
The Australian Retailers Association formally asked the Fair Work Commission to clarify however, no response has been provided.
So, to comply with the law as the court now demands, every supermarket in Australia, would, in theory, need to monitor exactly when each employee enters the cool room, how long they linger by the yoghurts, and the ambient temperature at the time.
Multiply that by dozens of other allowances like meal breaks, overtime thresholds, travel reimbursements and you begin to see the problem.
I wish I were exaggerating but the judge himself conceded that some interpretations produced “unsatisfactory” outcomes that were nonetheless “necessary”.
Down the rabbit hole we went, the parties solemnly arguing over the meaning of “retailer”, “trading hours”, “worked”, and my personal favourite “week”, which it turns out has one meaning in clause 28.10 of the GRIA and something entirely different in clause 28.11(a).
The Fair Work Ombudsman, an entire taxpayer-funded body whose statutory purpose is enforcing these awards, argued an interpretation of “retailer” that the court threw out. The regulator, in plain English, did not know what the regulation meant.
If the umpire can’t read the rulebook, and Woolworths’ battalion of lawyers can’t interpret it, what chance does a five-person corner store have? The corner store has the chance of a snowflake in the cool room. Above zero, naturally, so at least the allowance applies.
Australia has 122 modern awards and the GRIA is just the canary in the cool room.
This case is more than a corporate misstep, it is evidence of a deeper institutional failure from a system claiming to support workplace relations but in practice produces confusion, litigation and administrative overload.
