SmartCompany, December 6, 2017
Concerns about underpayments in the hospitality sector have been big news in 2017. From cases involving high-profile celebrity chefs to those in fast food franchises, there’s been no shortage of examples of employees being underpaid their entitlements this year.
But is a union-backed website for naming and shaming employers the best way to ensure workers are paid properly?
The answer is unlikely, according to workplace relations experts, who warn small businesses should wait until disputes reach official channels before reacting to any online commentary about their businesses.
This week a former bartender at Melbourne eatery Chin Chin was successful in her claim for $9,500 in back pay she says she was owed after working unpaid overtime hours over a nine-month period with the business.
This case, which was heard in the Melbourne Magistrate’s Court this month, is one of many similar cases to enter the public domain this year and in response, the United Voice union has now launched its ‘Rate My Boss’ platform — a reviews website calling on young Victorian hospitality workers to post reviews of their employers.
The idea is that the TripAdvisor-style website will warn others about hospitality businesses with poor workplace culture or underpayments, while also spreading the word about choice employers.
Reviews can be left anonymously by current and former workers, who are asked to give ratings out of five on how staff are treated and what they are paid. To leave a review, a worker must register an account with the site and agree to a series of terms and conditions.
“As more employers get rated, RateMyBoss.org.au will become the go-to guide for the best and worst places to work in hospitality. RateMyBoss.org.au will change employer behaviour,” United Voice Victorian Secretary Jess Walsh said in a statement.
Leave it to the courts
Young workers across retail and hospitality have consistently been a priority area for the Fair Work Ombudsman, with a range of random audits and court actions over the past 12 months targeted at businesses that fail to keep proper payment records and intentionally pay workers less than the relevant awards.
However, workplace lawyers have told SmartCompany that while compliance with workplace law is definitely in the spotlight, name-and-shame websites could cause more harm than good in the long run.
Workplace lawyer Peter Vitale says the concept of employer review websites have been around for some time, and have been operated by both unions and other entities.
In his experience, however, he doesn’t believe reviews of hospitality businesses will necessarily lead to workers having disputes over payments resolved.
“The naming and shaming of employers who are in breach of the law is best reserved until after the courts have made decisions about these things,” Vitale says.
Resolving underpayment cases can usually only happen once the employee takes the issue through the courts or to the Fair Work Ombudsman, while employees posting anonymous reviews could lead to delays in resolution of concerns.
“The staff member might not be identified [when reviewing a business], making it very difficult,” Vitale says.
There is also the risk that some information could make its way onto platforms which is not actually accurate, he says.
“If the statements are clearly false, there may be some legal recourse for businesses, but the time and cost of rectifying those kind of false statements are well and truly beyond the reach of small businesses.”
If a business does see communications on a reviews website or on social media about its practices, the best course is “not to give it too much air”, Vitale suggests.
The Fair Work Ombudsman provides employees with reporting tools to track their time at work and raise concerns about their entitlements, and Vitale believes at this stage most workers know to contact the watchdog to resolve breaches of workplace law.
Too many employers still unsure on obligations
But while some are critical of a name-and-shame model, the launch of the Rate My Boss platform does come amid a broad consensus that Australian businesses can do more to ensure workers are properly paid.
The Fair Work Ombudsman’s annual report reveals it has upped the ante on complex litigations against businesses over the past three years, recovering $3.9 million in underpayments over the past 12 months, compared with $1.4 million over 2015-16.
A United Voice survey of more than 600 hospitality workers earlier this year found 75% of respondents reported wages that were below what they should have been entitled to under their relevant awards.
Meanwhile, workplace relations advisory Employsure found in its 2017 Workplace Index report that one in four employers have difficulty when interpreting modern awards and pay rates for staff within their business.
Of the more than 500 businesses surveyed, 20% of employers admitted they knew little about the Fair Work Act, while one in three said they weren’t confident they were compliant with workplace law.
Senior employment relations adviser at Employsure, Harry Hillar, tells SmartCompany its critical employers go into the new year with a clear policy for employees to raise concerns about their entitlements, as well as clear processes for human resources.
“When issues around these things are raised, ask what your next steps are,” he says.
Too often employers insist they pay above award wages when an employee raises concerns about entitlements, but Hilliar warns that, with the Fair Work Commission’s four-year review of awards recently completed, a number of entitlements have changed.
“It’s certainly the case that the first approach you should take on these things is never one of dismissiveness,” he says.
“It can be so easy to miss obligations, and anyone can get it wrong.”
SmartCompany contacted United Voice for further comment on how Rate My Boss will operate but did not receive a response prior to publication.