Restaurant & Catering Assoc plus Bakers Assoc of Australia

Hot Topics
with
the Restaurant & Catering Association
& the Baking Association of Australia

Kelly Flahavin & Anton Duc

www.baa.asn.au © 2012
www.restaurantcater.asn.au

What changes have been made in the last 24
months that many operators are not aware
of?
•National Employment Standards and Modern Awards
commenced operation under the Fair Work Act from 1
January 2010.

•Wages have been transitioning from the old State Awards to
the federal Modern Awards since July 2010.

•Wages are transitional which means they are being phased
in with 5 instalments until 2014. This is a very complex
process – see handout.

www.baa.asn.au 2 2011
©

What changes have been made in the last 24
months that many operators are not aware
of?
•Transitional wages are generally lower than paying the full
modern award rate.

•Wage tables are provided for by the Restaurant & Catering
Association including casual loadings, weekend and public
holiday penalty rates, early/late work and split shift
allowances, junior and apprentice rates.

•BAA also provide wage advice and award interpretation.

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What changes are coming up in the next 12
months that operators may not be aware of?

•The FWA Minimum Wage Panel will conduct the
Annual Wage Review over coming months and
determine if any increases should apply to Modern
Awards from 1 July 2012.

•Fair Work Act being reviewed by a Panel.

•Modern Award are being reviewed by Fair Work
Australia to see if they are meeting the Modern
Award Objectives .
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What are the rights to inspect my business by
a Fair Work investigator, a union, WorkSafe or
the ATO?
A Fair Work Inspector may enter premises without force,
during working hours if:
•they believe the Fair Work Act 2009 or a Fair Work
instrument (e.g. an award) applies to the workplace; or
•records or documents relevant to compliance are on the
premises (including documents on a computer)

Sometimes, FWO choose to audit particular industries or
workplaces, even when no one has made a complaint.
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the ATO?

The ATO would rather take a cooperative approach but do have powers to enter
your premises without notice.

Do
Cooperate
Be pro-active – if you find an error let them know first
Provide the auditor with an office of their own if available

Do not
Antagonise the auditor
Withhold information
Be dishonest

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the ATO?

The WHS Act allows unions to apply to the relevant authority for an
entry permit. An entry permit holder is not required to give prior notice.

If an entry permit is issued, the entry permit holder may enter
workplaces to:
• inquire into suspected contraventions of work health and safety laws
affecting workers who are members, or eligible to be members
• consult and advise workers
•inspect and make copies of certain record or documents
•warn persons reasonably believed to be exposed to a serious risk

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the ATO?
WorkSafe do not need to provide notice for entering your
premises.

An inspector entering a workplace can:
•inspect, examine and make inquiries
•inspect, examine and seize anything, including documents
•bring and use any equipment or materials they may need
•take measurements, conduct tests, and make sketches or
recordings (eg photographs, films, audio and video)
•take and remove samples for analysis.

©

How can I avoid fines by Fair Work?

•Make sure you are paying correct wages and
penalties.

•Make sure you are familiar with unfair dismissal,
unlawful dismissal, general protections and the
Small Business Fair Dismissal Code.

•If there is an issue with performance, address the
performance.

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Recent cases in Australia

•A hotel underpaid employees and falsified records. They
face fines of $33,000 for underpaying its employees (plus
back pay of $50,000 of underpayment) and fines of $16,500
for record-keeping breaches. Hotel managers each face a
fine of $6600 for the underpayment and between $1100 and
$3300 each for false record-keeping.

•The operators of a food company have been fined a total of
$54,000 for underpaying a delivery truck driver more than
$32,000.

©


•The operators of a café were fined $120,800 for
deliberately underpaying two kitchen hands $8600 in wages
and superannuation.

•The operators of a restaurant have been fined $10,000 for
failing to keep proper employment records for more than 70
employees. The company’s employment records did not
contain sufficient detail - such as names of some
employees, whether they were full-time, part-time or casual,
all hours worked and superannuation contributions.

©


•The operators of two chain restaurants have been fined a
total of $66,600 for underpaying teenage staff.

•A Restaurant Group director was fined $10,000 in 2008 for
failing to provide employees with seven days access to a
workplace agreement and information statements.

•Two companies and two directors associated with a café
have been fined a total of $28,820 after failing to keep
proper employment records for three Chinese workers who
were not paid wages for months at a time.

©

What are the potential consequences
of terminating an employee, reducing
their hours, demoting someone or
refusing to hire a particular person?
•General protections

•Unfair dismissal

•Unlawful termination

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What changes to immigration and
rules for tourist workers?

•Several changes to immigration in areas such as RSMS,
457 and 417 visas.

•Restaurant & Catering have an Outreach Officer from
the Department of Immigration who members can
contact directly for immigration advice.

•BAA has a migration agent to assist members with
forms, etc.

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How are the new rules for Workplace
Health and Safety going to affect
Queensland businesses?
•No longer employer/employee
relationship – workers and PCBUs

•PCBUs will have to consult more directly
and widely with both workers and other
PCBUs on related work activities

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How are the new rules for Workplace
Health and Safety going to affect
Queensland businesses?
•New penalty structures – duty breach, high risk breach
and reckless conduct. Fines up to $3million. See
handout.

•There are regulations and codes of practice and fact
sheets available on Restaurant & Catering website.
Restaurant & Catering are also producing webinars on
the WHS Act available on our website.

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Restaurant & Catering Assoc plus Bakers Assoc of Australia

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