Restaurant owners happy to pay less on Sundays

For workers in the hospitality industry, rising early for a Sunday morning shift after Saturday night’s revelry is worth it - if only for Sunday penalty rates. 

This has been the case since 1 January 2010, when the relevant modern award, the Restaurant Industry Award introduced the penalty rate regime (see clause 34.1 ).

From 1 July 2014, however, Sunday penalty rates for many hospitality workers will reduce by 25%, following a Full Bench decision of the Fair Work Commission in Restaurant and Catering Association of Victoria - Re Restaurant Industry Award 2010 [2014] FWCFB handed down on 14 May 2014.

The decision will affect employees in the restaurant industry, which includes most hospitality workers, but not those in fast food outlets or restaurants in hotels or clubs.

The decision was a result of the modern award implementation process, which requires the Commission to review awards as soon as practicable after the second anniversary of their commencement, to check if it is achieving its objective of providing a “fair and relevant minimum safety net” of employment terms and conditions (section 134 of the Fair Work Act 2009). 

In deciding whether the award is “fair and relevant”, the Commission must consider numerous factors, including the need to provide additional remuneration for employees working on weekends.

The Applicants in the matter, the Restaurantand Catering Association of Victoria, Australian BusinessIndustrial and 16 private restaurant businesses, filed an application to the Commission seeking a number of changes to the award, including cdecreased weekend and public holiday penalty rates.

The application was first heard at the Commission by Deputy President Gooley, who after four days of evidence from employers, economic experts and academics, rejected (among other requests), the proposal to reduce Sunday penalty rates. 

Deputy President Gooley’s decision was based largely on there being “insufficient or no evidence that the proposed changes would improve productivity or encourage collective bargaining” [at 30].

The Applicants appealed Deputy President Gooley’s decision to the Full Bench, which on 14 May 2014, granted permission to appeal, finding that there was a sufficient public interest to be determined in the outcome. 

The Full Bench then quashed the Deputy President’s decision regarding Sunday penalty rates on the basis that the Deputy President had determined the matter “by reference to the test of whether there had been a significant change in circumstances since the making of the Restaurant Award and, as a result, did not consider the matter in accordance with the relevant requirements of the Transitional Act” [at 154].

Finding that 6 of the 9 elements of the Award’s objective were “detrimentally affected” by Sunday penalty rates, which were failing to achieve the “fair and relevant” objective of the award, the Full Bench then decreased Sunday penalty rates from 50% to 25% [at 303].

Unsurprisingly, United Voice, representing the industry’s employees, is upset, and considering an appeal, and Restaurant and Catering Australia is ecstatic, immediately issuing a press release praising the outcome of its “historic” fight.

The effect of the decision will be felt by the industry’s workers - a force already “low-paid compared to other industries”, with a “lower skills base” and made up primarily of students and women with children.

Emma Pollett-Sutton
Lawyer

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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Fair Work Commission makes one order from 151 applications in first 3 months of anti-bullying jurisdiction

In March 2014 we wrote about the addition of an anti-bullying jurisdiction to the Fair Work Commission.   To recap, from 1 January 2014, ‘workers’ (a broad term which includes subcontractors and volunteers) can apply to the Commission for a stop bullying order.  Applications are dealt with by a Commissioner either by mediation, conference or hearing. 

The Commission reports on each of its jurisdictions on a quarterly basis.  On 23 April 2014, it published its first report on the anti-bullying jurisdiction, covering 1 January to 31 March 2014.

In the Commission’s first three months, it received 151 applications.  This is far below the 3,500 applications for the year predicted by the Commission’s General Manager, Bernadette O'Neill in June 2013.

Most applications were made against large employers with over 100 staff in the clerical, retail, banking and health services industries. 

Although the definition of bullying excludes reasonable management action, the vast majority of applications allege bullying by managers.

Interestingly, 20 applications alleged bullying by a group of workers.

All but eight of the 151 applications were withdrawn in the early case management or conciliation stages.

Of the eight applications that proceeded, six were rejected by the Commission for being frivolous, not having reasonable prospects of success, or because they were not made in accordance with the Act (in one example, the application form was not properly signed).

Of the remaining applications one led to the Commission’s first and only stop bullying order, made on 21 March 2014 by Senior Deputy President Drake in Applicant v Respondent [2014] PR548852.  

Details of the case are sparse - Senior Deputy President Drake’s order does not include any reasons, save that the orders were agreed by the parties during conference.  However, the order is quite specific in its wording.  The alleged perpetrator cannot have any contact with the applicant alone or comment about the applicant’s clothes or appearance.  Interestingly, the applicant was ordered not to attend work before 8.15 am.

As knowledge of the jurisdiction increases and more applications are filed, we will get a better idea of how the anti-bullying jurisdiction will work and whether bullied workers will resort to its remedies.  Given that managers are being accused of bullying most often, the main point for employers to take away from the Commission’s first three months is to ensure that managers are properly trained on all aspects of their role - starting with performance management and discipline. 

Emma Pollett-Sutton
Lawyer

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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Bullied before 1 January 2014? The Fair Work Commission has jurisdiction to make a stop bullying order, but your employer will need to be a corporation

 

In previous articles we have spoken about the anti-bullying jurisdiction that was conferred on the Fair Work Commission with effect from 1 January 2014, and who can take advantage of it.

On 6 March 2014 the Full Bench of the Commission decided that behaviour that occurred before 1 January 2014 can be used as the basis to apply for a stop bullying order: Application by Kathleen McInnes [2014] FWCFB 1440.

Ms McInnes filed an application for a stop bullying order that relied upon behaviour that had occurred between November 2007 and May 2013.

Commissioner Hampton referred the application to the Full Bench for a ruling given the issue that it raised.  The Commonwealth Government and peak bodies were invited to make submissions on how legislation granting rights from 1 January 2014 could rely on events that occurred before that date.

Interestingly, the Commonwealth Government did not respond to the invitation but the Australian Industry Group and the ACTU both did.

Unsurprisingly their submissions reflected their likely positions on the anti-bullying legislation: namely the employers wanting to limit its effect and the unions wanting to give it as broad an application as possible.

The question that the Full Bench had to decide was whether the anti-bullying legislation was truly retrospective in its effect.

It is a legal principle that legislation should not operate in reverse to alter or affect the rights and liabilities of people unless this is made plain.

But a distinction needs to be made between legislation that affects past rights and liabilities and legislation that grants future or present rights based on past acts.  The Full Bench found that the anti-bullying legislation falls within the latter category and is therefore not retrospective in its operation.

The Full Bench remitted the application to Commissioner Hampton to deal with a further jurisdictional objection based on the employer not being a constitutional corporation.  Ms McInnes’ employer was incorporated under the Associations Incorporation Act 1981 (Victoria) and is a charity registered with the Australian Charity and Not for Profit Commission.  It provides programs for people living with mental illness and is funded through the Victorian and Commonwealth Governments.

On 24 March 2014 Commissioner Hampton decided that based on its overall activities the employer was not a trading corporation within the definition of constitutional corporation and therefore dismissed the application: Application by Kathleen McInnes [2014] FWC 1395.

So two matters concerning the anti-bullying legislation have been confirmed:

1.            A pattern of behaviour starting or occurring before 1 January 2014 can be relied upon;

2.            Outside the Commonwealth Government sector the employer must be a corporation.

PS: On 21 March 2014 the Fair Work Commission made its first formal orders under the anti-bullying legislation: Applicant v Respondent [2014] PR548852.  There are no published reasons for decision on which the orders were based but reading them, the Commission intended that two employees have as little to do with each other as possible.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

 

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Workplace bullying: the new jurisdiction

Since 1 January 2014 workers who believe they have been bullied may apply to the Fair Work Commission for an order to stop the bullying.  A worker includes an employee, a contractor or sub-contractor an outworker, an apprentice or trainee, a student gaining work experience or a volunteer.

 

The definition of bullying is wide and includes either an individual or a group of individuals who have been subjected to repeated, unreasonable behaviour that creates a risk to health and safety.

 

The bullying needs to have occurred more than once but includes victimising, intimidating, humiliating or threatening.

 

Bullying excludes reasonable management action carried out in a reasonable manner.  The bullying has to occur at work but it is arguable that provided there is a connection with work bullying via social media including Facebook and LinkedIn and bullying at work related functions would be included.

 

Employers not included in the new bullying jurisdiction of the Commission include partnerships, sole traders, State Government Departments and unincorporated associations.

 

The Commission can make orders to stop the bullying, which can be directed at both the employer or the individuals involved.

 

The range of orders that could be made include:

 

·        Monitoring of behaviours by an employer;

·        Compliance with an employer’s anti-bullying policy;

·        The provision of information and additional support;

·        A review of the employer’s workplace bullying policy.

 

The Commission cannot order compensation but if its orders are not complied with it can order substantial penalties of up to $51,000.00 for a body corporate and up to $10,200.00 for an individual. 

  

Employers should ensure that they:

 

·        Understand the scope of the Commission’s new bullying powers;

·        Understand the definition of bullying;

·        Understand the difference between bullying and reasonable management action;

·        Have a clear policy stating that bullying is unacceptable, and conduct training which promotes this policy.

·        Conduct regular health checks to manage the risk of bullying.

 

In the first month of operation of the anti-bullying laws the Commission received 44 applications to stop bullying and commenced to deal with them well within the 14 day limit that the laws set.

 

The Commission will publish a report on the stop bullying applications it receives on its website in early April.  At that time we will have a better idea of how bullied people subject to the anti-bullying laws are making use of their rights.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.
 

 

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Social media: use at your own risk

 Following from my previous article on social media and how their use can affect ongoing employment I want to bring to your attention the recent case of Wilkinson-Reed v Launtoy Pty Ltd [2014] FWC 644. 

Ms Wilkinson-Reed was the HR manager at the Launceston Toyota, a position she had held for 18 years at the time of her dismissal. 

She was friends with the wife of the current dealer principal. 

The dealer principal and his wife had separated.

The dealer principal issued a directive to Ms Wilkinson-Reed and other employees not to discuss various matters concerning the business with his wife as she (the wife) was not a company director.

Ms Wilkinson-Reed was dismissed for serious misconduct, part of which was said to arise from a Facebook conversation between her and the dealer principal's estranged wife in which Ms Wilkinson-Reed said:

1.         The dealer principal had taken a dislike to another employee;

2.         Staff could not wait to be able to say exactly what they thought about the dealer principal in a Toyota sponsored anonymous survey;

3.         Another person had told her that the dealer principal was 'called tosser' in the motor vehicle world in Launceston.

The dealer principal accessed his wife's Facebook page through the use of her password without her knowledge or consent and saw the exchange between Ms Wilkinson-Reed and his wife.

Commissioner Deegan found that Ms Wilkinson-Reed had breached her duty of confidentiality by stating that the dealer principal had taken a dislike to an employee but it was not so serious as to justify dismissal.

Commissioner Deegan accepted that the comments about the dealer principal were in a private conversation.

The issue in this case was not so much about the medium by which Ms Wilkinson-Reed expressed her low opinion of the dealer principal but whether the expression of such an opinion by a long standing employee with an otherwise impeccable record was 'having a deleterious effect on the workplace, its employees or the business of the employer'.

Commissioner Deegan decided that it did not so as to warrant dismissal.

Taking into account that Ms Wilkinson-Reed had held only 2 employment positions in 36 years and was 3 years from retirement, he awarded her the maximum 26 weeks compensation available under the Fair Work Act.

In my view this case demonstrates yet again how the use of social media can affect ongoing employment.  Users cannot guarantee privacy of communication even if they intend them to be private.

Although the dealer principal breached his wife's privacy by reading the Facebook conversation with Ms Wilkinson-Reed this fact was little consolation to Ms Wilkinson-Reed who found herself without a job towards the end of her working life.

The lesson is clear: only say things on social media that you are happy for anybody to read.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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Fair Work Commission upholds termination based on medium to high levels of cannabis use

A Woolworths subsidiary, Woolstar, regularly conducts on-site drug and alcohol testing of its employees. 

It terminated the employment of a storeperson based solely on his testing positive for medium to high levels of cannabis.  Woolstar. 

The Fair Work Commission (FWC) held in its decision of 18 February 2014 that this factor alone represented "serious misconduct" that would justify dismissal. 

Notably, however, the Commissioner stated in his decision that "a lower concentration [of cannabis] . . . might attract some lesser disciplinary penalty and a remedial treatment program." 

The Commissioner also rejected the employee's argument that on-site drug testing is unlawful because there is no accredited testing regime in Australia, stating that "this proposition would translate into a circumstance that would render all workplace drug testing currently being conducted in Australia as void or invalid."

What are the ‘takeaways’ from this decision for employers?

1.         It is permissible for employers to conduct on-site drug and alcohol testing

2.         The employee's having medium to high levels of cannabis can constitute serious misconduct justifying summary dismissal

3.          Lower levels of cannabis may not constitute serious misconduct

4.          If you conduct on-site drug testing of your employees, it is important to have a clear policy in this regard, including the types of discipline that may imposed if employees test positive for various types of drugs.

Full decision of McCarthy v Woolstar


Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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More on social medial and out of hours activity

Recently I wrote about social media and how what employees do with them after hours can affect employment.

The decision in Pearson v Linfox Australia Pty Ltd [2014]FWC 446 confirms that where an employer’s reputation or the security of its enterprise are at stake, this is certainly true.

Having learnt its lesson from the experience with Mr Stutsel, see [2011] FWA 944 and [2012] FWAFB 7097, Linfox implemented a social media policy and gave its employees training in it.

Mr Pearson was dismissed for his failure over time to comply with a number of Linfox policies and for refusing to sign an acknowledgement that he had read and understood the newly implemented social media policy.

In his evidence at hearing, Mr Pearson said that he had refused to sign the social media policy because it was intended to apply out of hours and “Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights (sic) on freedom of speech.”

In addressing the social media policy acknowledgement issue as a valid reason for Mr Pearson’s dismissal, Commissioner Gregory said that there is little point in having a policy that prevents employees from damaging their employer’s reputation and releasing their confidential information at work that leaves them free to do so out of hours.  He accepted that there were many instances where employers cannot lawfully restrict or regulate employee’s activities outside work but said that for a social media policy to operate effectively it had to reach beyond work hours.

So despite what Mr Pearson may have thought, his freedom of speech and action outside work hours was not absolute.

Commissioner Gregory observed that Linfox was not actually asking Mr Pearson to abide by the social media policy but only to acknowledge that he had read and understood it.  All the same, Linfox would expect its employees to abide by the policy and for them to recognise that breach of the policy can have consequences for ongoing employment.

Mr Pearson does not appear to have understood this. 

In any event, as Mr Pearson had breached other workplace policies relating to notification of absences, unauthorised mobile phone usage and safety procedures, it is likely he would still have been dismissed even if he had not taken a principled, but misguided, stance on his employer’s social media policy.

So employees are on notice that out of hours social media use that damages an employer’s reputation or discloses its confidential information can lead to a dismissal being upheld as valid.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

 

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