The Hospitality sector has been scrutinised for foregoing employee entitlements to increase business profits. After having worked in the Hospitality sector for near a decade for financial support before beginning practise, something has become abundantly clear. This being countless employers may be carrying on a business by underpaying employees to increase business profits.
We could dissent into numerous legal discussions concerning the employer and employee relationship in the Hospitality sector, however, this article will be discussing the Fair Work Ombudsman’s minimum standards of protection established for the casual employees in the Hospitality Sector. We will also touch on overtime being paid to casual employees.
National Employment Standards
The National Employment Standards (NES) provides protection for employees. Casual employees may be under Hospitality Industry (General) Award 2010 (The Award), an enterprise agreement, or an employment contract. Regardless, the NES are the minimum standards. The minimum standards set out in the NES cannot be contracted out of by employees. However, terms in enterprise agreements may supplement the NES.
The minimum standards, as set out in section 61 of the Fair Work Act 2009 (Cth) (the Act), relate to the following matters:
- Maximum Weekly Hours;
- Requests for Flexible Working Arrangements;
- Parental Leave and Related Entitlements;
- Annual Leave;
- Persona/Carers Leave, Compassionate Leave and Unpaid Family and Domestic Violence Leave;
- Community Service leave;
- Long Service Leave;
- Public Holidays;
- Notice of Termination and Redundancy Pay;
- Fair Work Information Statements
The Casual Employee
Our discussions will be limited to employees under the Award. Nonetheless, a casual employee governed by an enterprise agreement attracts similar protections and rights. A casual employee, under section 13 of the Award:
- Is paid 25% for foregoing annual leave, personal personal/carer’s leave, notice of termination, redundancy benefits and the other entitlements of full-time or part-time employment;
- May work 12 hours per day or shift, and must not work more than 38 hours as an average over a 4 week cycle;
- Are entitled to a minimum of 2 hours of work per attendance at the workplace;
- Are entitled to overtime for all work over that mentioned in paragraph 2 above;
Many employers and employee are under the ignorant expression that casual employees’ rights are held at a vastly lower standard than that of full – time or part time employees. This ignorance has resulted in the underpayment, abuse and overworking of casual employees in the Hospitality sector.
Maximum Weekly Hours
The foremost protection in the NES are the maximum weekly hours of work. As per section 62 of the Act, an employer must not request or require an employee to work more than 38 hours per week, unless the request is reasonable. When an employee is asked to work over 38 hours in a week, the employee may reasonably refuse.
It must be noted that an averaging arrangement may be established by an award. Under the Award, and averaging arrangement may allow for an average of 38 hours per week over a month period, with hours fluctuating over the four weeks. Any work completed by the employee over the maximum hours is paid at overtime rates.
A casual employee who works over 12 hours in a day or on a shift, or works over 38 hours in a week (or an average week is a cycle is agreed), is to be paid overtime. The Award, through section 33.3, provides for the following overtime rates for casual employees:
1. Monday to Friday;
a. 150% of ordinary hourly rate for first two hours;
b. 200% of ordinary hourly rate for rest of the overtime;
2. Between midnight Friday to midnight Sunday;
a. 200% of ordinary hourly rate;
Unless a prior written agreement has been made between the employee and the employer to agree for time to be taken off and paid at the applicable overtime rates, overtime must be paid. It is understood that the nature of the sector sometimes calls for casual employees to work ludicrous hours. However, employees must be wary of employers who aim to circumvent overtime payment for casual employees.
The Hospitality sector demands lengthy shifts and weeks for employees, which in turn may cause casual workers under the award to exceed the maximum working hours. If this occurs, employers must pay overtime, unless a time off arrangement has been organised in writing. Casual employees are remarkably vulnerable to adverse action by employers if they contact the Fair Work Ombudsman, which may prevent employees from reporting underpayment. However, if you believe underpayments have occurred, it is recommended that you seek legal advice and Fair Work be contacted so you and your fellow colleagues are paid your entitlements.
Further Information can be found as follows:
This information is general in nature and is not intended to be legal advice. Please contact the writer for further information.