have become a hot topic in recent months, with several high-profile cases drawing the ire of the public. Kikki.K was accused earlier this month of maintaining an expired 2007 WorkChoices era agreement that was described as “inferior” to the modern award by FWC deputy president George Bull in a case involving Delivery Hero (which used the same agreement) in late 2015. The stationery company has begun moving employees to a new enterprise agreement, the first struck after the announced Sunday penalty rate changes. However, the retailer has received considerable public backlash and is now being held up by many in the union movement as an example of why broader change is required. Media reports singling out some IGA franchises and Bakers Delight, which was found to be using a 2006 agreement that allegedly paid some employees $8 an hour have also surfaced – prompting a re-think in the industry. Retailers are being advised to consider their status as good corporate citizens and take a close look at standing enterprise agreements. Australian Retailers Association chief executive Russell Zimmerman believes public, media and union interest in zombie agreements has been increasing, telling IRW that he is personally aware of several cases where retailers have recently rendered agreements null and void in favour of the award. “Brand damage is very expensive, [retailers] have to be seen as being good corporate citizens,” he said. “They’ve also got to try to minimise their costs to get the best result for their business, but that should never be at the expense of any employee.” Employment Innovations, the labour hire firm behind the outdated Kikki.K agreement, is now encouraging retailers to move away from old agreements, but advises companies to negotiate new ones rather than default to the award. RAFFWU looks to make its mark Increased attention on zombie agreements has coincided with the increasing prominence of the Retail and Fast Food Workers (RAFFWU), which was officially formed earlier this year. The new union was a primary force behind action taken by Bakers Delight workers, which has seen the company announce a voluntary application to the FWC to terminate its 2006 agreement. The development is being chalked up as a win on RAFFWU’s side as it establishes itself alongside the Shop, Distributive and Allied Employees Association (SDA), which it says has failed to deliver sufficient outcomes to workers on zombie agreements. The SDA continues to deny the legitimacy of RAFFWU, but the group appears to be set on making an impact. Employment Innovations has claimed that RAFFWU has “declared a war” on zombie agreements used by companies like Bakers Delight, a statement that RAFFWU secretary Josh Cullinan agrees with. Cullinan said that the union will move to terminate any agreements brought to them by members that provide for worse conditions than the award. “As people hear in the next couple of months of how much is being earned by our members, they will be coming to us and we will be terminating their agreements as well,” Cullinan told IRW. “The reality is that it is just a matter of time and the sooner they engage in this process and maybe even file their own application to terminate, the better off they will be.” RAFFWU is currently pursuing “dozens” of termination applications, including a case involving an IGA franchise and is moving to involve itself in ongoing proceedings with Coles. It’s part of a wider push against a recent FWC decision to reduce Sunday penalty rates. As Cullinan explains, the more workers moved off zombie agreements and back onto the award, the more difficult it will be for the Coalition government to defend the cuts, as it will affect more voters. Zombie inquiry considers corporate avoidance The fate of zombie agreements may rest on the outcome of an ongoing inquiry into corporate avoidance of the Fair Work Act (FWA), which is due to be published in August. Both RAFFWU and the Young Workers Centre (YWC) are advocating the introduction of legislation that would automatically ensure that expired agreements are assessed and, if found to be inferior to the award, terminated. The move is seen as potentially less contentious than the wider penalty rate discussion, but Cullinan doesn’t see a difference between the two issues, claiming that enshrining penalty rates in law – a position advocated by the Greens – would solve both problems. YWC solicitor and co-ordinator Keelia Fitzpatrick believes support for legislative change is growing within the union movement. However, neither the SDA nor the Australian Council of Trade Unions (ACTU) advocated this process in official inquiry submissions, and did not comment on the matter specifically when contacted by IRW. National secretary Gerard Dwyer said that the SDA seeks to obtain annual wage increases, where agreements have expired and seeks to renegotiate expired agreements, terminating when negotiations are refused. However, the SDA and ACTU do advocate changing the FWA to enable unions who weren’t party to original agreements to seek termination. “Whilst there are instances where the SDA has successfully assisted a member in this regard, there are numerous non-union agreements which would no longer pass BOOT (the better off overall test) and which the union should be able to terminate, but can’t until an employee is prepared to step forward,” Dwyer said. Noting that it only takes a single employee to start the process of challenging an outdated agreement, Zimmerman said that legislation would only create more “red tape” around processes that are already difficult for retailers to navigate. Citing department of employment figures that retail agreements have declined from 1,248 in 2013 to 263 in 2016, Zimmerman argued that it is more difficult than ever for retailers to strike “sensible” agreements. “I know that figure is less now,” Zimmerman said, continuing in reference to the backlash Kikki.K has received for striking a new post-penalty rate cut EBA. “You can understand the reluctance of retailers to continue to go for EBAs. And you can understand the fact that they don’t wish to be in front of Fair Work right at the moment.” With legislation currently before the parliament to change the rules guiding the FWC, addressing the penalty rate cut and corporate avoidance within the scope of the FWA are shaping up into potential election issues in 2019.