Taking The Cleaners To Westfield
By Mike SeccombeNovember 19, 2013
An Australian union representing cleaners at Westfield malls shelved strike action in favour of a worldwide sweep through the global retail giant’s books. Now it’s shopping reports of company tax avoidance in the US, UK and Australia.
For two years the giant Westfield shopping-centre group refused to countenance demands to back a modest pay rise for some 1,700 people who clean its Australian shopping malls.
The traditional, stereotypical union response to such a deadlock might have been to pull the cleaners out. Instead, the relevant union, United Voice, determined to put more “cleaners” in.
They put the accounting cleaners through Westfield across three continents, focusing on the tax practices of the Australian-based multinational in the United States and the United Kingdom.
The tactic has not – at least not yet – seen the union’s members get their pay rise. But it sure has shone a light on dubious aspects of Westfield’s corporate behaviour.
The union, and its associates and agents here, in the US, and the UK, have compiled evidence of tax dodging on an epic scale.
In the United States in 2012 alone, according to the union, Westfield paid some US$116 million less in property tax than it should have.
In the UK, according to its analysis, the company paid less than £500,000 on revenue of some £2.7 billion over 10 years.
We need to stress here that tax avoidance is not illegal. But it is of immense concern to governments all over the world that a rising tide of corporate tax dodging is seeing literally trillions of dollars go substantially untaxed as companies shift profits to jurisdictions where rates are lowest, and shift costs to jurisdictions where they are highest.
You may be aware of the brouhaha in Britain over tax avoidance by the likes of Google, Amazon and Starbucks. You may also be aware of the US Congress’s recent jousting with Apple over its elaborate structures, which leave billions of its income untaxed there or anywhere else in the world.
As previously noted by The Global Mail, a report done for the Uniting Church’s Justice and International Mission earlier this year found a majority of Australia’s Top 100 companies now make use of subsidiaries in tax havens.
And Westfield was one of the biggest users of tax havens; the Uniting Church found that the Australian company has 54 subsidiaries in Jersey and one each in Luxembourg and Singapore.
The union’s more detailed analyses of the tax affairs of Westfield around the world found many more: of 110 known Westfield subsidiaries in the United States, 84 are registered in the tax-haven state of Delaware, it says.
And the union and its allied civil-society groups are not done yet. A further, more detailed report on Westfield’s property-tax situation in the US is imminent. They are talking to pension funds and other investors and potential investors about the group’s tax activities. AND they are moving on to look at the company’s environmental record.
You’ve got to admit, it’s a far cry from the old means by which organised labour attempted to deal with business. What it is, is a textbook study in the new ways that all kinds of groups – not just unions – are now pressuring corporations to meet their social responsibilities.
We’ll get to the broader implications later; first a bit about Westfield, and the history of the dispute that now is embarrassing the company around the world.
Since it first listed on the Australian Stock Exchange in 1960 with two shopping centres in Western Sydney, Westfield has grown into (as its website says) “one of the world’s largest shopping centre portfolios with 99 centres in Australia, New Zealand, United States, and the United Kingdom”, which in 2012 generated $40 billion in retail sales.
So, to the cleaners’ dispute. In 2006, the union which represents cleaners, United Voice (then going by the name of the Liquor, Hospitality and Miscellaneous Workers Union), began what it called its “Clean Start” campaign.
“What we wanted,” says United Voice’s national president Michael Crosby, “was [an increase from] $17 – it’s probably closer to $18 now, with CPI increases – up to $21 an hour. That was the wages claim. There were other things, like job security, some contractor clauses to stop abuses of people – cash-in-hand payments, that sort of thing.”
The campaign had some early success.
“We won a big agreement … going to the business owners of large CBD office buildings, [in] around 2007-08,” says Crosby.
“We wanted that agreement to apply to retail shopping centres.”
Westfield, because it was the biggest operator in that sector, was the obvious first target, but the company wasn’t talking to the union.
So the union went to talk to the company, in a forum in which it could not be avoided, in front of media at Westfield’s 2011 Annual General Meeting – the one at which its founder, Frank Lowy, formally stepped down from his executive role.
The union organised for one of the cleaners – one woman with an immigrant background, like Lowy’s – to present him with a bunch of flowers.
Another cleaner, Cathy Daniels, then took the microphone and congratulated Lowy on his career and his philanthropic work. She went on to talk about her struggle to buy groceries on her cleaner’s wage, and finally asked Lowy if he would facilitate a meeting between union reps and Westfield management to put their case for more money.
Lowy was entirely gracious in reply.
“It would be a pleasure for me, ah, to facilitate this kind of meeting for you,” he said. “A senior member of our company will be talking to you.”
Well, that happened, but the talks went nowhere. Westfield produced its own numbers, says Crosby, purporting to show that cleaners in its stores, employed by subcontractors, already earned much more, around $28 an hour.
Michael Crosby left the meeting, disbelieving of the company’s analysis and “pretty bloody pissed off about it”.
With the company unprepared to negotiate, he says, the union moved on to other ways of applying pressure.
“We did the usual things. We had a strike. People were instantly replaced. We had demonstrations against Westfield outside Westfield malls. We got media … all the usual things.”
The union got the Australia Institute to work out what it would cost Westfield to meet the cleaners’ pay claim, says Crosby, and they determined the total would be less than the cost of depreciation on the group’s corporate jets.
“We talked to everybody else in the sector. They all said, ‘We are not going to step out of line with the market leader. They set the standard for the whole sector. You are not going to get anyone to shift in this sector unless you get Westfield.’
“And they all said, ‘No one can win against Westfield.’ They just will not negotiate.”
Crosby is far from alone in his experience of Westfield’s intransigence. Peter Strong, executive director of the Council of Small Business Owners of Australia, the peak organisation representing many small retail tenants is, somewhat surprisingly, in agreement with the union.
Strong describes Westfield and a few other big shopping-centre owners as “ethically failed” companies. Westfield is both the biggest and the worst, he says.
When it comes to renewing leases with his members, says Strong: “They will just shove a contract down somebody’s throat and say, ‘That’s it, we’re not negotiating.’”
And when Mark Zirnsak, director of the Justice and International Mission of the Uniting Church, was putting together his landmark study into the use of tax havens by Australia’s biggest companies this year, he also found Westfield unwilling to engage.
His investigation found Westfield to be one of the biggest users of subsidiaries in secrecy jurisdictions. As he did in all cases, he wrote to the shopping-centre company asking if there were any legitimate purpose to any of its subsidiaries in tax havens.
“We got no reply,” he says.
“We sent them a draft report, asking for any comment, and got no reply. Complete silence.
“Other companies were quite willing to engage. Telstra for example, had a lot of subsidiaries, yet was prepared to explain what they were for. And as a result, we eliminated a number of their subsidiaries from the report, because they gave a clear indication what [legitimate purposes] they were for.
“But Westfield is a company that was not willing to be transparent at all to our inquiries,” says Zirnsak.
But let’s get back to the cleaners’ union. Crosby says United Voice only began in earnest to investigate Westfield’s broader business practices in about June 2013. They looked first at its operations in California, where Westfield is the largest retail landlord.
They turned up a big discrepancy between the property tax values the company declared for tax purposes and what it declared to shareholders.
In August the union, in association with various US unions – representing teachers, service employees and activist groups – released a 19-page, glossy report entitled Malled by Westfield: The Consequences of Property Tax Avoidance.
By way of background, it should be said that property taxes are a big deal in the US. They are crucial to supporting local government services such as public education, police, fire and other services.
The Malled report found that the difference between the property values Westfield cited in its information to shareholders and those declared for tax purposes was some $41 million a year.
The report then portrayed the results as a series of case studies in which loss of revenue was equated with services foregone. To cite one, it considered the impact on the Los Angeles Unified School District (LAUSD) of Westfield’s lower rates of property tax payment.
Now, the LAUSD is undeniably in desperate straits, even by comparison with California as a whole, which these days rates 47th of the country’s 50 states on education spending.
“The district,” notes the report, “faces additional challenges as 25 per cent of students are learning English as a Second Language and 76 per cent of students qualify for special funding under federal poverty guidelines.
“The LAUSD has faced budget cuts every year for the last five years. This past school year (2012-13), all LAUSD employees agreed to take ten furlough days. However, nearly 5,000 district employees still lost their jobs. This is on the back of 8,000 jobs lost in the prior four years.”
Within the school-district boundaries Westfield has four shopping centres which, if taxed at market rates, would pay about $10.2 million more than it does in property taxes.
Given that about half of all property-tax revenue goes to school funding, the report says, the tax Westfield avoided would have paid for 113 new teachers.
(The union notes an irony: in its 2012 “Sustainability Report”, Westfield highlights the “Give Back to Schools” campaign it ran in 23 malls across eight US states, which encouraged shoppers to give money, clothes and school supplies, and to which the company itself kicked in US$2,500 per school, or a total of US$57,500.)
There are numerous other case studies in the report, which you can read here.
In fairness to Westfield, it should be noted that as a result of the passage in California of something called Proposition 13 in 1978, huge scope for property-tax minimisation was introduced into the system. Westfield is just one of its biggest beneficiaries. (For further detail on how this works, and how it works for Westfield in particular, see this excellent exposition by the LA Times’ Pulitzer-prize-winning reporter, Michael Hiltzik.)
Certainly the Malled report and associated media commentary has had some effect on Westfield’s responsiveness; in late October senior company executives in California met with community organisations agitating for change to the state’s property-tax laws.
But Westfield is, according to the union’s investigators, underpaying its property taxes elsewhere in America too, including in states where there is no equivalent to Prop 13. A further report, due for release within a couple of weeks, claims that Westfield underpaid a total of US$116 million in 2012, based on the company’s own assessed property values as reported to shareholders.
It’s a big number, but it pales beside what the union learned subsequently about Westfield’s operations in the UK.
Michael Crosby says the union was encouraged to look there after the scandals about corporate tax avoidance by other big companies in the UK, much of it unearthed by economist and accountant Richard Murphy and the Tax Justice Network.
Says Crosby: “Probably about four months ago we saw the research on Amazon and Google and I got one of the researchers to ring him [Richard Murphy] to see if he would do a job for us. It took a while for him to nail down how they were doing it, but he’s now very clearly nailed it down.”
The reason it took a while is that any examination of Westfield’s operations quickly becomes very complicated.
Murphy reported that the basic structure of Westfield Shoppingtowns Ltd (WSL) in the UK is relatively simple. Following the corporate chain takes you first to the immediate holding company, Westfield American Investments Pty Ltd, which is, despite its name, registered in Sydney. The next link is Westfield Holdings Ltd, which in turn, is owned by the Westfield Group, also domiciled in Sydney.
Go to duedil.com to explore an interactive version of the graphic (a free account is required).
But that’s where the simplicity ends. The Westfield Group is made up of a web of scores of corporate structures.
As Murphy’s report says: “Many of these structures are offshore and have unusual corporate styles e.g. some are of the quite obscure limited partnership style rarely used for anything but tax planning in the UK; others are nominee structures, often used to disguise ownership in joint venture and other arrangements.”
Specifically, they were set up in Jersey, which is among the more secretive of the world’s tax havens.
Let us cite more of his report:
“According to their accounts, WSL made sales of more than £2.7 billion over the decade to 2011. It seems that up to 90 per cent of that trading may be with related companies. Most of those related companies or partnerships in turn appear to be owned by Jersey Property Unit Trusts (‘JPUTs’). Those unit trusts appear to be the owners of the Westfield shopping centres.
“The Westfield group structure in the UK and Jersey appears to be heavily motivated by tax avoidance considerations …”
The structures, said Murphy, would have allowed Westfield to avoid or minimise capital-gains tax, stamp duty and property tax.
Also because the trusts that were paying for shopping-centre developments often were very late in making payments, the UK company incurred interest costs which were then deductible against its income for tax.
Murphy’s report explains the tax benefits at greater length, and you can read the full report here.
The bottom line, though, is that in 10 years, on turnover of more than £2.7 billion, Westfield paid less than half a million pounds in company tax.
“This amounts to a tax rate of just 0.017 per cent of their total turnover for that period,” Murphy calculates.
When The Global Mail put questions to Westfield on the issues raised by the union, it responded – in terms similar to those used by Google, Apple and others accused of tax avoidance – that it complies with “all its tax obligations around the world”.
With regard to property taxes in the US, it said it paid tax “as assessed by the authorities”.
In the case of its UK interests, it said its tax arrangements were “well-known, lawful and transparent to the UK authorities”.
It went on to say that Westfield operates as a Real Estate Investment Trust; that is, “the income that is earned by the REIT from the operation of the real estate is not taxed in the hands of the REIT (at the entity level) but instead in the hands of the shareholders when the REIT distributes its earnings to them”.
What it did not address was why its operations involved obscure corporate structures in a tax haven.
Now, all of this is interesting, no matter where one stands on the subject of corporate tax minimisation: some question the ethics of this practice, while others see tax avoidance as part of a corporation’s fiduciary duty to shareholders.
Equally interesting, though, is the union’s motivation in pursuing the matter. What are its aims?
Well, the union says one aim of the campaign is to encourage governments to delve more deeply into the complex structure of Westfield’s retail holdings and get some revaluations.
Another is to persuade investors – in particular US pension funds, which are broadly analogous to Australian industry-superannuation funds – to exert pressure on Westfield. Thus, representatives of United Voice attended an October meeting in Washington of the Global Union of Pension Fund Trustees.
One of the people spoken to by United Voice was Dieter Waizenegger, executive director of the CtW investment group, which advises pension funds representing some six million members.
He declined to pass judgment specifically on Westfield, saying his group was still studying the report. But he spoke about the growing concern among investors over so-called ESG – environmental, social and governance – issues.
“Pension funds have a fiduciary duty to maximise benefits to the members, but we believe there are ways you can invest that money that will achieve that goal … [through] investee companies that have proper governance, good environmental and social practices.”
Good corporate practice makes for good long-term investment, he says, adding that advisors like him “need to look 20, 30 years down the road”.
And that, he says, means considering whether a company in which they might invest is a “good steward of all [its] assets”.
The logic of his statement is unimpeachable, when you think about it.
A company that has poor labour-relations practices may lose its edge on innovation, or become mired in industrial disputes, both of which can impact profits. A company whose profits derive from poor environmental practice may be vulnerable to tighter regulation (such as coal-fired power plants are now finding in the US), or to subsequent clean-up costs.
Likewise, investors are increasingly considering the potential long-term consequences for a company’s profitability if it relies on dubious tax practices. Even if they are legal today, they might not remain so, particularly given the current international push, in the OECD, G20 and among individual western governments, to close loopholes which allow for multinational profit shifting.
“The issue of tax avoidance is a new and emerging area,” says Waizenegger, and also a consideration. “One we’re just starting to take an interest in.”
Tax avoidance is not just of interest to pension funds, but also to market funds, and to sovereign-wealth funds – the state-owned investment funds which are so rapidly growing in size. The Norwegian fund is a good example. It is probably the world’s largest, at around US$804 billion now, expected to grow to $1.1 trillion by 2020.
The Norwegian fund’s investments are overseen by an ethics council and it already avoids investing in tobacco or weapons companies, or in those engaged in egregious labour practices in developing countries. Now, as reported recently in The Economist, it is “particularly exercised about corporate tax avoidance”.
So much so that it recently appointed one of Britain’s most trenchant critics of corporate tax dodging, John Kay, to that ethics council.
And the cleaners’ union is aware of all this. It knows that the Norwegian fund holds about one per cent of all global shares and, coincidentally, about one per cent of Westfield. It knows which pension funds and other investment vehicles have stakes in Westfield.
This strategy of pursuing one issue by focusing on another issue that is not related, says Wayne Burns, executive director of ACIL Allen Consulting, is increasingly common. Burns calls it “arena shifting”.
He cites examples: In the US, the meat-packers’ union has been “hammering” McDonalds for years about obesity and food standards, as part of a “proxy war for a rise in the minimum wage and safety standards at abattoirs”.
Walmart has seen its unions highlight issues with its supply chain in China, as a means of gaining leverage in a campaign to increase minimum wage rates. Consumer-health groups, in pursuit of cheaper drug prices, have drawn attention to issues of testing or drug trials in China and Africa.
Over the years, these pressure points have changed and evolved, says Burns, from labour relations to the environment, to corporate governance, “And now it’s about tax, and carbon footprint.
“NGOs, including trade unions, are pretty good at working out pressure points,” he says. “They’ll work out where the reputational damage can be inflicted.”
Unions and civil society groups are not alone in using such means to their ends. Look behind some of the campaigns and you’ll find other companies, either competitors or links in the supply chain, says Burns.
A lot of corporates consider these tactics to be blackmail, he says, and they refuse to engage.
“But then you often find other stakeholders are all over the company such that they feel they need to come to the table.”
“These days,” says Burns, “stakeholders are much more hooked up through social media. Issues that are local can go global very quickly.
“It’s a really challenging environment for corporations. And the bigger the corporation is, the bigger the chance it will have to wrestle with these kinds of issues over coming years,” says Burns.
Westfield will certainly be wrestling with them, as United Voice moves on to other issues, notably the company’s carbon footprint.
“We’re now talking to a couple of green groups about investigating their [Westfield’s] sustainability,” says Crosby.
“Our suspicion is that in terms of energy sustainability they are appalling. Where are the solar panels on shopping centres? They are one of the biggest consumers of energy in the country.”
“They’ve punched the cleaners on the nose in Australia over a piddling wages and conditions dispute, something that would have cost them less than the depreciation on their corporate jets.
“And what that has meant is that we are now looking at their whole ESG performance.”
Now, the information ferreted out by the union may or may not wind up costing the company some money in extra tax payments, but Michael Crosby reckons that’s not the big concern for the group.
“The big problem for Westfield is, it’s a company with a reputation, that trades on its name. It brands its shopping centres. Unlike most of these big [shopping-centre development] companies, where people don’t know who owns the local shopping centre, with Westfield they do.
“What they ought to be worried about, is what people think when they hear the name Westfield. Do they think, ‘Beautiful shopping centre that I’d like to shop in’, or do they think, ‘People who are rorting the system’?
“Honestly, we’ll just keep going. Why wouldn’t we? It’s just too easy,” says Crosby.
Let’s close this story with one final irony. We refer to the October 10, 2013 newsletter from the Lowy Institute for International Policy, the think tank endowed by Frank Lowy with some of the fortune amassed through the success of Westfield.
It contained thousands of words, by multiple authors on – you guessed it – the burgeoning problem of corporate tax avoidance and the concerns of the OECD, the G20 group of nations, not to mention the Australian Treasury, that tax evasion was seriously eroding governments’ ability to raise revenue and provide services to their citizens.
There was a tendency, said one of the learned papers in the newsletter, to see the problem of such avoidance as one “specific to the information technology industry.
“However, this categorisation is misleading, as the avoidance problems that are under consideration touch on a much wider spectrum of industries – essentially, any business where global supply chains, intangible property and related party transactions are significant.”
Alas, the article did not go on to offer any case studies.