The Fair Work Commission has given a provisional view that it agrees to an application from the Restaurant & Catering Industry Association (RCA) to vary the Restaurant Industry Award. The changes were proposed as a way to help business in the sector with the adverse effects of COVID.
What are the proposed changes?
There are three changes, all of which will be optional for business to adopt.
These are:
- An ability to agree with senior employees to avoid paying penalty rates, paying overtime and providing meal breaks, for up to 57 hours of work a week, if they are paid a higher than usual “Exemption Rate”;
- The ability for employers to pay allowances via a “rolled-up” hourly rate rather than for each instance they are accrued (a “Substitute Allowance”);
- A simplified classification level system.
The proposed changes are expressed to be temporary amendments that will apply during the COVID-19 recovery period, initially for a period of 12 months.
How will the Exemption Rate work?
The Fair Work Commission has produced draft wording which it is proposing to insert in the Award. This includes the following regarding the Exemption Rate:
R.3 Exemption Rate
R.3.1 An employer and a full time employee (paid at the Level 5 or Level 6 rate of pay) may enter into an agreement to pay the employee no less than 170% of their relevant Level rate of pay each week as set out in clause 18 Minimum Rates of this award (the Exemption Rate).
R.3.2 Where an agreement to pay the Exemption Rate has been made, the following clauses of this award shall not apply:
(a) clauses 16.5 and 16.6 (meal break);
(b) clause 21 (allowances);
(c) clause 23 (overtime rates) but not clause 23.2; and
(d) clause 24 (penalty rates).
R.3.3 Where an agreement has been made to pay an employee the Exemption Rate the employee must be paid the Exemption Rate for each hour worked up to and including 57 hours in a week and for hours worked in excess of 57 in a week the employee must be paid:
(a) 150% of the Exemption Rate for the first two hours in excess of 57 in the week; and then
(b) 200% of the Exemption Rate thereafter in the week.
R.3.4 The Exemption Rate shall be the rate for the purposes of calculating:
(a) personal leave; and
(b) annual leave.
R.3.5 Clause R3 does not apply to employees classified under the administrative and general stream (Schedule A.4).
Accordingly, the Exemption Rate will apply to senior employees including front of house managers, sous chefs and head chefs.
The 170% pay rate based on a 57 hour week would equate to an annual salary of approximately $82,500 for a Level 5 employee and $85,000 for a Level 6 employee. They would be entitled to increased overtime rates thereafter.
The Exemption Rate will only apply where there is a written agreement with an individual employee, or with at least 75% of the employees in the workplace. The arrangement can be terminated by giving four weeks’ notice.
How will the Substitute Allowance work?
An employer will be able to agree with individual employees (or with 75% of the employees in the workplace) to pay an hourly Substitute Allowance, instead of paying the following allowances in the Award:
(a) clauses 16.5 and 16.6 (meal break);
(b) clause 21.2 (meal allowance);
(c) clause 21.3 (split shift allowance);
(d) clause 21.4 (tool and equipment allowance);
(e) clause 21.5 (special clothing allowance); and
(f) clause 21.6 (distance work allowance).
The amount of the Substitute Allowance will initially be as follows:
| Employee level | Allowance per hour ($) (full-time employee) |
| Introductory | $1.60 |
| Level 1 | $1.60 |
| Level 2 | $1.02 |
| Level 3 | $0.98 |
| Level 4 | $0.90 |
| Level 5 | $1.01 |
| Level 6 | $1.08 |
What is the simplified classification structure?
The proposed simplified classification structure looks like this:
A.1 Restaurant/Café Worker Grade 1
AA.1.1 Means an employee who is engaged in any of the following:
(a) picking up glasses; or
(b) providing general assistance to food and beverage attendants of a higher classification not including service to customers; or
(c) removing food plates; or
(d) setting or wiping down tables; or
(e) cleaning and tidying associated areas; or
(f) receiving money; or
(g) cooking breakfasts and snacks, baking, pastry cooking or butchering; or
(h) general cleaning duties within a kitchen or food preparation area and scullery, including cleaning cooking and general utensils used in a kitchen and restaurant; or
(i) assisting employees who are cooking; or
(j) assembling and preparing ingredients for cooking; or
(k) general pantry duties.
AA.1.2 In addition to the duties set out in AA.1.1, means an employee who has not achieved the appropriate level of training and who is engaged in any of the following:
(a) supplying, dispensing or mixing liquor; or
(b) assisting in the cellar; or
(c) undertaking general waiting duties for food or beverages, including cleaning tables; or
(d) receiving money; or
(e) attending a snack bar; or
(f) performing delivery duties; or
(g) taking reservations and greeting and seating guests
AA.1.3 In addition to the duties set out in AA.1.1 and AA.1.2, means an employee who has the appropriate level of training, and who is engaged in specialised non- cooking duties in a kitchen or food preparation area.
AA.2 Restaurant/Café Worker Grade 2
AA.2.1 Means an employee who has the appropriate level of training and is engaged in any of the following:
(a) supplying, dispensing or mixing liquor; or
(b) assisting in the cellar; or
(c) undertaking general waiting duties for both food and liquor, including cleaning tables; or
(d) receiving money; or
(e) assisting in the training and supervision of food and beverage attendants of a lower classification; or
(f) delivery duties; or
(g) taking reservations and greeting and seating guests; or
(h) cooking duties such as baking, pastry cooking or butchering.
AA.2.2 In addition to the duties set out in AA.2.1, means an employee who has the appropriate level of training, which may include a supervisory course, and who has responsibility for the supervision, training and co-ordination of kitchen attendants of a lower classification.
AA.3 Restaurant/Café Worker Grade 3
AA.3.1 Means an employee who has the appropriate level of training, which can include a supervisory course, who:
(a) carries out specialised skilled duties in a fine dining room or a restaurant; or
(b) has responsibility for the supervision, training and co-ordination of food and beverage staff or for stock control for one or more bars.
Notation: To avoid any doubt an employee classified in one of the classifications set out in this Schedule shall perform all the duties of the classification as required by the employer.
AA.4 Chef stream
AA.4.1 Chef grade 1 (tradesperson) means a commi chef or equivalent who has completed an apprenticeship or passed the appropriate trade test or who has the appropriate level of training, and who is engaged in cooking, baking, pastry cooking or butchering duties.
AA.4.2 Chef grade 2 (tradesperson) means a demi chef or equivalent who has completed an apprenticeship or passed the appropriate trade test or who has the appropriate level of training and who is engaged to perform general or specialised cooking, butchering, baking or pastry cooking duties or supervises and trains other cooks and kitchen employees.
AA.4.3 Chef grade 3 (tradesperson) means a chef de partie or equivalent who has completed an apprenticeship or passed the appropriate trade test or who has the appropriate level of training in cooking, butchering or pastry cooking and who performs any of the following:
(a) general and specialised duties, including supervision or training of kitchen employees; or
(b) ordering and stock control; or
(c) supervising other cooks and kitchen employees in a single kitchen establishment.
The minimum rates of pay for these classifications will be as follows:
| Employee Classification | Employee stream and grade | Minimum weekly rate (full-time employee) | Minimum hourly rate |
| Restaurant/Café Stream | |||
| Level 2 | Grade 1 – Restaurant/Café Worker | $805.10 | $21.19 |
| Level 3 | Grade 2 – Restaurant/Café Worker | $832.80 | $21.92 |
| Level 5 | Grade 3 – Restaurant/Café Worker | $932.60 | $24.54 |
| Chef stream | |||
| Level 4 | Grade 1 – Chef | $877.60 | $23.09 |
| Level 5 | Grade 2 – Chef | $932.60 | $24.54 |
| Level 6 | Grade 3 – Chef | $957.60 | $25.20 |
What will happen next?
Interested parties can submit views to the Fair Work Commission on their provisional view by 4:00 pm on Monday 28 June 2021. Bearing in mind how quickly the Commission has implemented changes to awards to deal with COVID-19 it is likely a decision will be made shortly thereafter.
Disclaimer
The information provided in these blog articles is general in nature and is not intended to substitute for professional/legal advice. If you are unsure about how this information applies to your specific situation we recommend you contact EI Legal for advice.