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.