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Pay your staff properly: it’s not rocket science. That’s my message to the chefs and restaurateurs who last week begged for an amnesty for wage theft.

They make some interesting claims: “there’s too many awards”; “most people are trying to do the right thing”; “I had to work for free when I first started”; “why is everyone picking on the hospitality industry?” or “customers need to pay more”.

The underlying themes are that the restaurateurs don’t understand the rules and that they were exploited themselves as juniors, therefore it’s fair enough. Oh, and let’s not forget the big one: it’s too expensive and I don’t want to.

None of these excuses are good enough, frankly. If you run a restaurant or café there’s one award that applies. It’s called the Restaurant and Catering Award. See, not that hard! If you happen to work in a place that borders on being a bar, there may be some argument that the Hospitality Award applies, sure. But the cases I see and which are reported time after time in the papers are not cases where the employer isn’t quite sure which allowance to apply between different awards, or the finer details of the interaction between the overtime clause and a shift penalty, but is broadly trying to do the right thing. Frankly, if that were the main issue, I’d be out of a job and “wage theft” wouldn’t be the phrase of the minute.

The basics are uniform across most awards in any event: 38 hours are the maximum weekly ordinary hours. Some additional overtime will generally by acceptable, but in most cases must be paid for by the hour at loaded rates. If you work weekends, evenings or public holidays there’s likely to be a penalty rate applicable.

What I see, commonly, are examples of people working excessive hours without pay, rolled up rates that don’t account for weekend or shift work, or annualized salaries that bear no resemblance to the minimum applicable wages. People treated as casuals but paid part time rates or who are sacked for asking questions about their pay. Where the wages are cash in hand and there’s no payslips. The list goes on.

In other areas of law, a defence of “I didn’t know the rules” is not accepted.

Nor should it be in this case. Business owners have every opportunity to educate themselves and get advice. Part of the national regulator’s remit is educating employers and employees about the applicable laws. There is an abundance of free information available from the FWO and if the online information isn’t enough, you can call and speak to a human who will also provide advice about the applicable award to your workplace, the appropriate hourly rates and minimum employment obligations.

If a restaurant owner wants to do a fancy re-fit, they hire a designer. If they want to know how to structure their business and how to pay their taxes, they’ll hire an accountant. Even many small, family-run businesses hire accountants, who should be able to at least point employers in the right direction when it comes to minimum legal entitlements for workers. And it’s apparent that many businesses, including some quoted in yesterday’s article, hire HR Consultants, who should certainly be able to advise an employer about their basic legal obligations. So if it’s too hard to navigate the IR system, you should hire an expert, just as you would expect to have to do with any other aspect of running a business.

Unfair to those who do the right the thing

For those chefs and owners who have been doing the right thing, this cry for amnesty is incredibly unfair. The ones who are doing the right thing are being undercut by other business owners who should know better but have gotten away with cutting corners.

Minimum wages are there for a reason. They provide the most basic safety net so that workers can at least hope to pay the rent, feed themselves and manage their other bills. The wage-setting system may not be perfect but it at least provides a transparent, constant minimum across an industry, set by an independent tribunal after careful consideration of business needs and the cost of living.

Business owners know their margins and know the importance of making ends meet to stay afloat. But they should also recognize the importance of their workers being able to make ends meet. If they can’t meet this most basic cost of being in business, then I don’t have difficulty with saying that maybe they shouldn’t be in business.

Treat your workers with the dignity and respect they deserve. Get advice if you need it. And don’t stand by and let other employers in your industry get away with theft.

Carita is a Principal Lawyer in Slater and Gordon’s Industrial and Employment team.

The contents of this blog post are considered accurate as at the date of publication. However the applicable laws may be subject to change, thereby affecting the accuracy of the article. The information contained in this blog post is of a general nature only and is not specific to anyone’s personal circumstances. Please seek legal advice before acting on any of the information contained in this post.

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