Tricky awards make criminals of honest merchants

They call it wage theft, but that is seldom the case. The labyrinthine rules ironically known as modern awards, which govern pay and conditions for more than a fifth of the workforce, are almost designed to make criminals out of innocent businesspeople.

Restaurants and cafes are a good example. The food service industry has suffered the most during the pandemic, and awards in the sector set the pay and conditions for more than 40 per cent of staff. No other sector is so strictly governed.

After skimming the 23,500-word Restaurant Industry Award, the only reasonable conclusion is the bulk of the nation’s restaurateurs must be breaking the law.

It is not just George Calombaris of MasterChef Australia fame; it’s your local Happy Dragon Chinese, where hiring someone to help fry rice and wash the dishes is not as simple as it should be.

The owner, perhaps with limited English and even less free time, needs to be across at least 24 job classifications, each with unique rates of pay spelled out to the last cent that change depending on the time of day, frequency of breaks, length of shift, the workers’ age and whether they are casual, part time or full time, or appren­tices. Should the new employee be classified in the “food and beverage stream” or the “kitchen stream”?

Grade one food and beverage attendants can wipe tables and pick up glasses, but only grade two can answer the phone and greet guests. Grade three can supervise staff who wipe the tables, “assist in the cellar” but not “attend a snack bar”.

If demarcation disputes don’t break out in front of the customers, they might in the kitchen.

“General pantry duties” are in the exclusive purview of grade one kitchen attendants. Grade two attendants can be “engaged in specialised non-cooking duties” in the kitchen, while grade three can supervise the other two grades but must not cook anything.

That privilege is left to one of five classes of cooks, the first three of which can make snacks, breakfasts and pastries but not perform any “specialised cooking”, which is limited to cooks in the higher two categories.

Who knows where sweet and sour chicken fits on this scale?

And if the cooks are bringing their own tools, they will require a $1.73-a-day tool allowance that cannot exceed $8.49 a week.

If the restaurant is large enough to have an administrative wing — perhaps to try dealing with the Restaurant Industry Award itself — it can allocate clerks among four grades.

Grade one can photocopy, file and, somewhat cryptically, “deliver messages” — presumably verbally because only grade three clerks are allowed to type. But if they do, it must be at least “at 40 words per minute with at least 98 per cent accuracy”. It is not spelled out what happens to their pay if they manage only 20 words a minute at 85 per cent accuracy.

If all this isn’t ludicrous enough in a part of the economy that demands flexibility, the award painfully lays out how, why and when workers can take breaks.

“If the employee is rostered to take an unpaid meal break later than five hours after starting work, (they are entitled to) one additional 20-minute paid meal break (to be taken after the first two hours of work and within the first five hours of work),” the award dictates, with the same level of clarity reflected regularly throughout the document.

And even if the worker doesn’t want a break — or is happy to take a longer one tomorrow because it’s really busy — they will be getting one whether they like it or not: “If the employer does not allow the employee to take an unpaid meal break at the rostered time, then the employer must pay the employee 50 per cent of the employee’s ordinary hourly rate extra: (a) from when the meal break was due to be taken or until either the employee is allowed to take the break or the shift ends,” it details.

That said, the boss can’t be pushy because “employers must not exert undue influence or undue pressure on an employee to make an agreement” about breaks.

With no hint of irony, the Restaurant Industry Award has an entire section dedicated to “requests for flexible working arrangements”, a right that emerges from the equal but different National Employment Standards. Yet the level of formal negotiation required to achieve such arrangements ensures there won’t be many requests.

Fast-food restaurants, being vastly different from cafes and restaurants in the nature of the business, have their own award.

Last week Scott Morrison announced five working groups to thrash out ways to reform our archaic industrial relations system. The group with the most work ahead of it, or at least the most scope for success, is surely the one tasked with award simplification.

The 122 awards that attempt to micromanage the pay and conditions of a growing share of workers are a boon for the lawyers and bureaucrats who write and enforce them, but an unnecessary drag on job creation, especially now as the economy tries to emerge from pandemic shutdown.

The awards make businesses reluctant to hire and, when they do hire, they shift workers to the classification that has the least red tape, which helps explain the so-called casualisation of the workforce so bemoaned by the ACTU.

It is urgent the awards be collapsed to as few as possible, and ideally abolished in favour of the National Employment Standards, which apply to all jobs.

Even if some restaurant workers are happily taking 15-minute tea breaks, while others wipe tables and answer phones, perhaps at the same time, in flagrant violation of the award, their employers are still vulnerable to class actions by lawyers.

And that is one of the few jobs created by these awards.