NUW fight wins reinstatement, exposes sham employment schemes at Australia's largest poultry producer
The NUW has been steadily organizing to recruit and to raise conditions at Baida, Australia's largest poultry producer, a company with a record of serious health and safety violations and other rights abuses. In 2011, the NUW fought and won a tough strike at the company's Laverton, Victoria plant, wining comparable pay rates for casual workers. The union then launched its ongoing industry-wide "Better Jobs 4 Better Chicken" campaign aimed at winning permanent work, safer workplaces and the production of better chicken.
Cambodian immigrant Pedro Vannea began work as a chicken boner at Baiada's Wingfield, South Australia plant in October 11. But he wasn't employed by Baida. Baiada contractor Royal Bay International - a company which supplies workers to various Baida plants - arranged through an accountant for Pedro to establish Pedro Vannea Pty Ltd as an independent company. Thus set up as an 'independent contractor', Pedro was assigned work by text message on short notice, provided no employment guarantees and paid a piece rate which frequently left his hourly wage below the legal minimum. As an 'independent contractor' he had no sick pay, no worker compensation for accident or injury and no leave or holiday pay.
In December 2013, Pedro had an accident at work but like many other workers in his position did not report it, for fear of being sent home or denied work. He did, however, decline two requests (at short notice) to work on a Saturday. On December 28, 2013 he received this text message: Guess you don't care about your job it's been 2 Saturdays you been away without notice. So from now on you are no longer needed at work, we will give you a call if you are needed in the future.
By then, however, Pedro had joined the union, which took his case to the Fair Work Commission, demanding reinstatement and full compensation for lost wages. Royal Bay contended that Pedro was not their employee but an "independent contractor" (while admitting that their 'subcontractors' were never issued contracts because they were "too stupid").
The Commission found that the nature of Pedro's work was "overwhelmingly indicative of an employment relationship". "The ultimate question, wrote the Commission, "will always be whether the worker is the servant of another in that other's business, or whether the worker carries on a trade or business on his or her own behalf… Parties cannot alter the true nature of their relationship by putting a different label on it. That is, the parties cannot deem the relationship between themselves to be something it is not." Pedro was an employee, not a contractor, and as such subject to protection against unfair dismissal. The Commission ordered his reinstatement with full back pay.
The story, however, doesn't end there. Boners have to supply their own equipment - an investment of AUD 400-500. Prior to his dismissal, Pedro kept all of his boning equipment in his locker at work. Because he was terminated by text message, he was unable to retrieve his work tools. After his termination the union regularly contacted Baiada to have the equipment returned to him. Baida eventually replied that it had 'gone missing'. When Pedro returned to work, the union insisted to Royal Bay and Baiada that they would have to supply Pedro with the necessary tools. He was given blunt knives and substandard sharpening equipment, which affected his performance and appeared to be a pretext for disciplinary action. The union again reacted strongly, and Pedro was provided with proper equipment.
Pedro's win has bolstered organizing at Winfield and other Baiada sites. "This case casts a spotlight on sham contracting arrangements, says NUW Officer Alex Snowball. "The decision is likely to have ramifications for workers at Baiada sites across the country who are engaged in similar arrangements."