We canvas answers to your questions about new Part-time and Casual Employment provisions under the Restaurant award
Our recent article described major changes recently commenced to the Restaurant Industry Award.
The changes are complex and will take some time for employers in the Restaurant Industry to fully absorb and get used to.
We have been fielding questions from various clients regarding how the new provisions apply to their businesses and we have assembled the questions and answers below from that source, as well as adding some of our own.
Note we will update this page in the future based on further questions we receive, and you can also use the Disqus function at the bottom of this article to ask further questions. We can also reply directly to your questions if you log-in to Disqus so you can provide us with your email details in order to do so.
Q - the award now provides for 'guaranteed hours' and 'additional hours', which new employees can work within their agreed availability. But what do I do with all my existing employees?
A - Part-time employees who immediately prior to 1 January 2018 had a written agreement with their employer for a regular pattern of hours as was required by the award are entitled to continue to be rostered in accordance with that agreement. However, you may replace that old agreement with a new written agreement made in accordance with the new award terms.
If you never had the old written part-time agreement as required by the award, we would suggest reaching a new agreement as soon as possible would resolve that issue. If you can't reach an agreement on availability with your old employee, then we suggest clients call us to discuss your specific situation.
Q - Can I ask my part-time restaurant employee (kitchenhand) to work 7 days per week, as long as they don't exceed 38 hours in the week?
A - You may roster the working of your employee’s 'guaranteed' hours and any additional hours (in accordance with clause 31.6), provided that:
- the employee may not be rostered for work for any hours outside the employee’s originally agreed availability;
- the employee must not be rostered to work between at least 3 hours and not more than eleven and a half hours in a day; and
- the employee must have at least two days off each week.
The last of these dot points would prevent you being able to roster the employee on more than 5 days per week.
Q - How can I avoid paying overtime, by correct rostering of my restaurant award employees?
A - To comply with the award's rostering requirements, the roster can be changed by -
- mutual consent at any time, or by
- seven days’ notice.
Also note that where practicable, two weeks’ notice of rostered day or days off should be given, provided that the days off may be changed -
- by mutual consent, or
- through sickness, or
- other cause over which the employer has no control.
Note the roster will also need to be put together in accordance with the other award requirements, which are described above.
Q - What happens when the part-time employee changes their availability? For example, they don't wish to work on Saturday nights any longer?
A - Under clause 12.7 of the award, where there has been a genuine and ongoing change in the employee’s personal circumstances, the employee may alter the days and hours of the employee’s availability on 14 days’ written notice to the employer. However, if the alteration to the employee’s availability cannot reasonably be accommodated by the employer within the guaranteed hours, then guaranteed hours under clause 12.4 will no longer apply, and the employer and the employee will need to reach a new agreement in writing concerning guaranteed hours (in accordance with clause 12.3(a)).
The overall effect of these provisions is that whilst the employee initially has the right to change their availability within which the employer can roster their hours by giving a written notice to their employer, where this can't be accommodated by their employer within the employee's guaranteed hours, then the employee's guaranteed hours will no longer apply. Both parties are then required to reach a new written agreement on the number of hours which the employer guarantees to provide.
Q - When does a casual get paid overtime?
A - All time worked in excess of the hours prescribed in clause 13.2, including working more than 12 hours per day or 38 hours per week (or an average of 38 hours per week where the employee works to a roster of up to 4 weeks).
Q - Can I ask my casual restaurant employees (kitchenhand) to work 7 days per week, as long as they don't exceed 38 hours in the week?
A - Yes. However, whilst rostering a casual employee 7 days a week won't automatically trigger overtime, given the real possibility of it having a deleterious impact on an employee's health and welfare if continued for an extended period, we suggest an employee-specific, Work, Health and Safety risk assessment should be conducted to ensure the work pattern won't encourage fatigue or adversely affect their work/life balance. You might also wish to consider the impact on your service and product quality.