Bullying and Harassment in the Workplace

Amendments to Restaurant Industry Gathering Pace

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Bullying and Harassment in the Workplace

A Fair Work Commission full bench has provided provisional support for variations to the Restaurant Industry Award 2020.

In December of 2020, the Industrial Relations Minister wrote to the Fair Work Commission expressing the Government’s view that: “in the extraordinary circumstances that have been caused by the COVID pandemic that it would be in Australia’s economic best interest for the Fair Work Commission to use its powers under s.157(3)(a) of the Fair Work Act 2009 (the Act) to undertake a process to ensure several priority modern awards in sectors hardest hit by the pandemic be amended. The process would be envisaged, if you considered it appropriate, to maintain a focus on key changes that could potentially support Australia’s economic recovery. The Government would obviously provide every available assistance to ensure the timely and comprehensive conduct of this process.”

 

One award specifically named by the Minister was the Restaurant Industry Award 2020, proposing flexibility measures such as:

  • Potentially simplified pay arrangements in the form of ‘loaded rates’ and/or ‘exemption rates’ designed to reduce the cost of administrative burden and address concerns about perceived risks arising from existing pay rate complexities and complexity risks that may lead to, particularly small business, mistakenly underpaying employees.”; and
  • Further streamlining of present classification structures so that they are clearer, easier to understand and simpler to apply. This might involve reducing the number of classifications through a broad-banding exercise with no reductions in pay and minimal increases in pay accompanied by greater variety and higher value work.

 

Following this correspondence, the President of the Fair Work Commission Justice Iain Ross commenced a process seeking submissions from interested parties about potential changes to the modern award.

Restaurant and Catering Industrial proposed a simplified classification structure proposing the removal of the “six arbitrary and overlapping levels to three easy-to-understand tiers”; an exemption rate to be agreed individually with current Level 5 and 6 employees which would enable a flat hourly rate of 170% for up to 57 hours per week; and a ‘substitution’ allowance in substitution for certain work and expense related allowances.

The Fair Work Commission issued a statement on 3 June 2021 stating their provisional support for the proposed variations.

 

“Having regard to the material filed and the safeguards included in the proposed schedule, it is our provisional view that the Restaurant Award should be varied in the terms set out…”

 

It is unclear whether these proposed changes would be a permanent feature of the Award, with the FWC suggesting a 12-month review of the clause may be appropriate.

 

The FWC full bench has called for submissions and evidence in relation to their provisional view by 28 June 2021 and reply submissions by 2 July 2021.

Dismissing an employee

Upcoming Increases to Minimum Wage and Superannuation

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Dismissing an employee
Minimum Wage Increase

The Fair Work Commission has handed down a 2.5% increase to the national minimum wage and Modern Award rates as part of the 2021 Annual Wage Review.

The new national minimum wage will be $772.60 or $20.33 per hour, effective from 1 July 2021.

In a move similar to the 2020 annual wage review, the Commission has delayed the commencement of the modern award wage increase for several industries. Specifically, the General Retail Industry Award 2020 increase will take effect from 1 September 2021, with the following list of awards to increase from 1 November 2021:

  • Air Pilots Award 2020
  • Aircraft Cabin Crew Award 2020
  • Airline Operations – Ground Staff Award 2020
  • Airport Employees Award 2020
  • Airservices Australia Enterprise Award 2016
  • Alpine Resorts Award 2020
  • Amusement, Events and Recreation Award 2020
  • Dry Cleaning and Laundry Industry Award 2020
  • Fitness Industry Award 2020
  • Hair and Beauty Industry Award 2010
  • Hospitality Industry (General) Award 2020
  • Live Performance Award 2020
  • Mannequins and Models Award 2020
  • Marine Tourism and Charter Vessels Award 2020
  • Nursery Award 2020
  • Racing Clubs Events Award 2020
  • Racing Industry Ground Maintenance Award 2020
  • Registered and Licensed Clubs Award 2020
  • Restaurant Industry Award 2020
  • Sporting Organisations Award 2020
  • Travelling Shows Award 2020
  • Wine Industry Award 2020.

All other modern award increases will take effect from the first full pay period on or after 1 July 2021.

The delayed increases reflect the economic research presented to the panel, which suggested that some industries have been “lagging” in their COVID-19 pandemic recovery. Notably, the Commission excluded the Fast Food industry from the broader Accommodation and Food Services Sector, finding that “fast food businesses are, generally speaking, less likely to have been adversely affected by the pandemic than cafes and restaurants because the restrictions imposed to contain the virus have generally not prohibited take away food services.”

The panel noted the impact of the 0.5% increase in the Superannuation Guarantee, however did not specifically apply a deduction for it.

Superannuation Increase

The Superannuation Guarantee – compulsory employer contributes – will increase from 1 July from 9.5% to 10%. This increase is part of a broader legislative schedule of increases that commenced in 2013, designed to incrementally increase the Superannuation Guarantee from 9% to 12%. Under the legislative schedule, the Superannuation Guarantee will increase again to 10.5% on 1 July 2022 with annual 0.5% increases to continue until 1 July 2025.

On 21 May 2021, the Australian Government announced in the 2021-22 Federal Budget, that it would be removing the $450 per month threshold which currently applies to the Superannuation Guarantee. This measure has not yet been legislated; however, it is anticipated to be in place prior to 1 July next year.

This will mean that employers are required to make super contributions to eligible employees who earn less than $450 per month (provided they satisfy the other eligibility requirements).

HR consultant

National Employment Standard Casual Amendments

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The purpose of this article is to update you on a recent amendment to the National Employment Standards under the Fair Work Act 2000 (Cth) related to casual employment. This amendment came into effect from 27 March 2021.

What does this amendment involve?

Inserting a new definition of casual employment into the Act

Under the new definition, a person is a casual employee if they accept a job offer from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.

Once employed as a casual, an employee will continue to be a casual employee until they are either:

1. become a permanent employee through:

a. casual conversion, or

b. are offered and accept the offer of full-time or part-time employment, or

2. stop being employed by the employer.

This legislative definition provides certainty around the issue of casual employment, which has been increasingly challenged in recent decisions of the Fair Work Commission and the Courts.

Casuals who were employed immediately before 27 March 2021 and whose initial employment offer meets the new definition continue to be casual employees under the FW Act.

Becoming a permanent employee

The Amendment Act adds a new entitlement to the National Employment Standards (NES) giving casual employees a pathway to become a full-time or part-time (permanent) employee. This is also known as ‘casual conversion’.

An employer (other than a small business employer) has to offer their casual employee to convert to full-time or part-time (permanent) when the employee:

  • has worked for their employer for 12 months
  • has worked a regular pattern of hours for at least the last 6 of those months on an ongoing basis
  • could continue working those hours as a permanent employee without significant changes.

The offer for conversion must be provided to employees in writing to the employee within 21 days of the casual employee’s 12-month work anniversary.

Employers are not required to make an offer where there are ‘reasonable business grounds’ not to. Reasonable business grounds are defined in the Bill and include a number of factors including, for example, where the employee’s positions will no longer be required or there will be a significant change to the hours or days the employee is engaged.

If an employer considers there are reasonable business grounds not to make an offer of conversion, these details must be specified in writing and provided to the employee within 21 days.

The Bill makes clear that, where an employee refuses an offer to convert, they lose the right to convert for the next 6 months

Equally, where an employer has determined that there a reasonable business grounds to not make an offer of casual conversion and notifies the employee in accordance with the provisions of the Bill, then the employees also cease to hold a right to request conversion for the next 6 months

Making and responding to offers and requests

There are rules for how employers and employees need to make and respond to offers.

There are also rules for offering casual conversion to existing casual employees.

Casual employees have a right to request to convert to full-time or part-time (permanent) employment in some circumstances. This applies:

  • for casual employees working for a small business – at any time if they meet the requirements
  • for other casual employees – after their employer has decided not to make an offer for casual conversion.

Requirement to issue CEIS

The Amendment also requires employers to issue all new casual employees with the Casual Employment Information Statement (CEIS) upon commencement of their employment.

The CEIS is attached to this email. The CEIS operates similarly to the Fair Work Information Statement (FWIS), in that is must be included in a new employee’s induction material.

Providing the Statement to existing employees

Existing casual employees will also need to be provided with the attached statement. This must occur as soon as practicable for small business employers. For businesses that are not ‘small business employers’, the statement must be given as soon as practicable after 27 September 2021.

If you require any assistance with the practical implementation of this new amendment or would like to ask any questions such as the definition of ‘reasonable business grounds’ or ‘small business employer’, please don’t hesitate to contact us directly.

Sincerely,

Patrick Crosswell