Thousands of retail and hospitality employees are still being paid reduced wages under so-called "zombie" agreements that were struck during the WorkChoices era, an analysis suggests.
As Bakers Delight faces a backlash over a decade-old pay deal that lowers penalty rates in Victoria, legal advocates for young workers warn they are still seeing the effects of other outdated deals that remain in use.
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Young Workers Centre co-ordinator Keelia Fitzpatrick said there were about 4000 agreements struck between 2006 and 2009 under WorkChoices in Australia, and many had never been terminated, especially at franchise stores.
"We hear from a worker at least once a month ... there are still hundreds of agreements out there, covering thousands of people," Ms Fitzpatrick said.
"They live on despite being expired, which is why we call them zombie agreements."
Below par pay
Under the Bakers Delight 2006 agreement in Victoria, teenage sales staff get paid as little as $8 an hour, while weekend pay is restricted to 110 per cent – far below the Sunday rates of "double time" enshrined in the national retail industry award.
The agreement was struck under the Howard government's WorkChoices industrial relations regime, which made it easier for employers to sack their staff and undercut safety net pay and conditions, such as penalty rates particularly by removing a requirement for companies to ensure their workers were better off than the relevant award.
Although WorkChoices was dumped three years later, agreements registered during this period can still remain legally valid, even if they have passed their nominal expiry date, unless an application is made to terminate them.
![Russell Zimmerman says Sunday penalty rates are "far too high".](/web/20170104231721im_/http://www.theage.com.au/content/dam/images/1/3/5/9/4/8/image.related.articleLeadwide.620x349.gtkt6y.png/1483407447339.jpg)
Bakers Delight last month succeeded in thwarting a 15-year-old worker's initial attempt to terminate its WorkChoices deal, arguing she had already put in her resignation and was therefore ineligible to make the application. The case is now being appealed and is set down for a hearing at the Fair Work Commission next month.
The company has insisted that its deal provides greater flexibility and other conditions that make up for the lower rate of pay.
Penalties 'too high'
Australian Retailers Association executive director Russell Zimmerman said the Bakers Delight agreement was legal and allowed the company to avoid the "far too high" penalty rate levels set out in the award.
"The agreement that's in place is currently legal, end of story" he said.
The agreement that's in place is currently legal, end of story.
Australian Retailers Association executive director Russell Zimmerman
"It's now being contested as to whether or not it should be in place, but, quite frankly, I think there is a more important issue here: how much longer can we substantiate high penalty rates like what we are seeing at the moment on Sundays?"
The Fair Work Commission is expected to deliver within weeks its highly anticipated ruling on whether to reduce weekend penalty rates across several sectors nationally, including retail, hospitality and fast food.
Mr Zimmerman said "excessive" retail penalty rates of double time on Sundays must be reduced to a more viable level to allow the creation of more jobs and to increase competitiveness.
"It's the biggest issue facing the industry at the moment," he said.
Zombie loophole
Ms Fitzpatrick said the fact workplace agreements could remain in use beyond their expiry was a "loophole" in the legislation.
The Young Workers Centre, which runs out of Victoria's Trades Hall, has analysed the use of "zombie" agreements that remain in force, and found workers covered by them are missing out on improvements made to the safety net in the years following the end of WorkChoices.
"These agreements weren't subject to the 'better off overall' test or the 'no disadvantage' test," Ms Fitzpatrick said.
"They weren't scrutinised or held to the same standards that agreements are today.
In response to Monday's revelation that the Bakers Delight WorkChoices deal remains in force, former prime minister Kevin Rudd said on social media: "Having fought in 07 to replace Howard's 'Work Choices' with Fair Work Act, I want to see company's response to this."
Opposition industrial relations spokesman Brendan O'Connor said the "true mission" of the Liberal Party was to create a "low-wage, easy-to-hire, easy-to-fire society".