By David Bates

For the past six years, I’ve been consistently arguing that if every business in the country began strictly complying with the Fair Work Act and its associated 122 Modern Awards at midnight, the country would grind to a halt tomorrow.

And now, thanks at last to the gradual – and long overdue – unravelling of the cosy Enterprise Agreement deals done by some of the biggest businesses in the country with some of the biggest unions – more and more of our nation’s policy-makers are starting to realise that I (and a few other workplace relations commentators) have been right all along.

In case you missed it, we now know that the Enterprise Agreement ‘negotiated’ (and I use that term loosely here, because it implies some sort of robust process which doesn’t actually appear to have happened) between Coles and the SDA – the union which represents retail employees – left more than 30,000 hard-working employees out of pocket.

It seems the SDA was more than happy to ‘trade-away’ workers’ penalty rates in exchange for higher base rates. That meant full-time employees (those presumably most likely to be union members) were left ‘better off overall’ under the Enterprise Agreement, but part-time and casual workers (those presumably least likely to be union members) were left significantly worse-off.

But here’s where it gets really interesting – this seemingly too-clever-by-half Enterprise Agreement was approved by the Fair Work Commission, despite more than 30,000 Coles employees clearly losing the penalty rates guaranteed to them by their Modern Award.

Under the Fair Work Act, this simply shouldn’t have happened, because an agreement cannot pass the ‘Better Overall Test’ in these circumstances.

The Fair Work Commission has finally realised this too, and the dodgy Coles Agreement has now been axed. But there are plenty of other Enterprise Agreements now in operation – covering tens of thousands of employees – that have also been approved by the Commission in near-identical circumstances and will now, inevitably, need to be terminated as well.

And so now we finally start to see why the country didn’t grind to a halt, as I, and many others, predicted it would under the hopelessly inflexibly and complex Fair Work laws. It’s because many big businesses, many unions, and the Fair Work Commission simply haven’t been complying with – or enforcing – the laws and Awards they’ve actually written!

Once they do, and once more and more cosy deals and employers are forced to back pay their employees, and pay the seemingly countless allowances, overtime rates and penalty rates imposed by the Fair Work system, I guarantee there’ll be plenty more people calling for exactly the same changes I’ve been talking about since 2010.