Retailers and hospitality industry employers have broken ranks over whether employees should have the right to refuse to work on Sundays if penalty rates are cut.
In a joint submission to the Fair Work Commission's review of penalty rates, industry associations representing supermarkets and discretionary retailers, whose ranks include the likes of fashion and footwear stores, said employees should have the right to refuse to work on Sundays, subject to conditions.
But the Pharmacy Guild and the Australian Industry Group, representing fast food retailers and quick service restaurants, are opposed to employees being given the right to refuse Sunday shifts, saying working Sunday is no different to working Saturday.
After completing hearings into a review of penalty rates last month, the Fair Work Commission's president, Justice Iain Ross, asked retailers and hospitality industry employers to consider whether they would support a proposition to give permanent staff the right to refuse to work on Sunday if penalties were cut from 100 per cent to 50 per cent or 25 per cent.
Retailers, pharmacists and fast-food chains are split over whether permanent staff should have the right to refuse to work on Sunday if penalty rates are cut.Credit:Bloomberg
In a final joint submission, the Retail Council, which represents national chains such as Woolworths, Coles, Harvey Norman and Bunnings, the Australian Retailers Association and the National Retail Association, which represent smaller retailers, and the Master Grocers Association, which represents independent supermarkets, said permanent employees should have the right to reasonably refuse to work on Sundays if penalties were reduced.
The right to refuse Sunday shifts should be limited to existing employees, rather than new recruits, permanent employees rather than casuals, and employees below management level, the retail associations said.
Employees who refused to work on Sundays should not be entitled to have those hours replaced on other days of the week and the right to refuse to work Sundays should cease two years after reduced Sunday penalty rates came into effect.
"The only basis on which the commission should consider introducing a right to reasonably refuse to work on Sundays is that employees who are currently working for a 100 per cent penalty should have the opportunity to reconsider their position in light of the reduction in the Sunday penalty," the retailers said.
"The Retail Associations accept that those Sunday workers currently working for a 100 per cent penalty rate have weighed up the benefits and disadvantages of Sunday work at that penalty rate and it is appropriate that they be given the opportunity to undertake that exercise again in light of the reduced penalty," they said.
However, the Pharmacy Guild said it was concerned a reasonable refusal of Sunday work clause could be interpreted in the workplace as an absolute right to refuse work on Sunday.
It would lead to disputes at both the workplace level and before the commission over what was considered "reasonable," the guild said, and did not recognise the increasing need for Sundays to be standard operating business hours for community pharmacies.
"[It] infers that the disability to work on a Sunday is akin to working on a public holiday when in fact it is the same, or only marginally greater for some employees, as the disability of working on a Saturday," the guild said.
The Australian Industry Group said "voluntary" Sunday shifts were never a feature of the fast food industry and there was no reason why that should change.
"The Ai Group opposes the conditioning of a reduction in the Sunday penalty rate in the Fast Food Award upon an employee volunteering to work on a Sunday," the group said.
The Australian Hotels Association and the Accommodation Association of Australia took a different view to the fast food sector.
The AHA and the AAA believe employees below Grade 4 should have the right to refuse to work if the refusal is "reasonable" and if they had not been told prior to commencement of employment that they would be required to work on Sundays.
The hospitality associations also suggested that a refusal to work Sunday clause could be in lieu of marginally higher Sunday penalty rates. The AHA and AAA had previously proposed a 25 per cent penalty rate on Saturday and 50 per cent on Sunday for permanent employees and 50 per cent both Saturday and Sunday for casual staff.
The major retailers declined to comment. ARA chief executive Russell Zimmerman said the difference in views across the retail and hospitality sectors partly reflected the size of the ARA and Retail Council's members, who were usually better resourced than smaller employers and could afford to roster managers and staff above level 4 on Sunday.
The penalty rates review has emerged as a key election issue.
While Labor backs Sunday penalty rates, leader Bill Shorten has said he would accept a reduction if it were recommended by the Fair Work Commission.
The commission is expected to report in August or September.
Sue Mitchell is a senior Companies reporter and writes about retail, consumer products and fast-moving consumer goods.