Published: 23 May 2018
Author: Ryan Carlisle Thomas
New hospitality union gives grunt to employment laws
A new online trade union has been launched to offer affordable union representation for people in the hospitality, an industry which is notorious for the wage theft of its younger workers.
Although underpayment and non-payment of wages is illegal, as is threatening to sack staff who complain about it, in real life it’s often difficult for mainly younger workers to stand up for their rights because they feel intimated or powerless.
While legal remedies so exist that can help them - and I explain some of them below - in reality, it’s generally the boss who has the upper hand. Which is why new, affordable and portable union cover is such a welcome move, and one which should add some grunt to existing employment law protections.
Called Hospo Voice, the new union is backed by the large United Voice trade union and the ACTU, and is being set up as a trial in Victoria in order to reach employees of restaurants, bars and cafes who have traditionally been difficult to unionise because of the transient nature of the workforce.
A union survey of 624 Victorian hospitality workers conducted last year found that three-quarters claimed they were being underpaid.
Hospo Voice is a new wave of unionism which stands out for its innovative use of digital technology. Members will have access to digital tools to check award rates, keep a record of hours worked, and maintain a diary in which to record any instances of sexual harassment or bullying.
The new union has also launched a site which is an online tool enabling hospitality workers to rate their employer and cite instances of under-payment of wages and poor working conditions. Called ratemyboss.org.au, the new site offers reviews and ratings by employees of restaurants and bars across Melbourne and Victoria.
What legal remedies do exist for restaurant, bar and cafe workers?
If you think you’ve been the victim of wage theft, you can pursue a backpay claim, but whether you wish to do so will depend on the size of your claim, how much you are seeking, and also the legal costs that you will occur as a result of prosecuting your claim all the way to court.
Obviously the more significant the underpayment the more incentive you may have to pursue your matter to court.
Generally under the Fair Work Act costs are not recoverable from the unsuccessful party, which means that even if you pursue an underpayment claim in court your legal costs may not be claimed against the employer.
However even if your claim is as little as $6,000 or $7,000 it still may be worthwhile for you to talk to lawyer to get some advice about the small claims jurisdiction which is available for claims of under $20,000. Those claims can be pursued in a friendly environment in the Federal Circuit Court of Australia where individual employees are given a fair opportunity to pursue their claim. Generally in the small claims jurisdiction employees are not legally represented, nor are employers so as to enable the procedure to be as informal as possible.
What should I do if I suspect that I am being underpaid?
It’s important if you are working for an employer and you suspect that you are being underpaid to check the proper rate that you should be entitled to receive during normal working weekly hours, and then find out what the penalty rate is for working on Saturdays and working on Sundays. If you find that you are being underpaid for any amount you should immediately obtain legal advice to confirm whether or not you are underpaid so that something can be done about it sooner rather than later.
This is because you generally have six years from the date of the underpayment to pursue your case in court and you don't want to be too late so as not to be able to do anything about your underpayment.
What should should younger workers do if they suspect they are being underpaid?
Quite often in the hospitality industry there are rosters which specify when employees should be working and the employee quite often works beyond that roster. So the question becomes: how does an employee prove that they have worked more than the hours that they are rostered for?
If you suspect you are being underpaid and you are working in hospitality then you should make detailed entries or notes about the hours that you work on a daily basis and then raise this with your employer once you've checked the applicable penalty rates or wage rates which may apply to your span of working hours.
What if my employer tells me I have to work hours that I am not being paid for?
You shouldn't have to put up with being underpaid in your wages. You do have rights to raise with your employer that you are being underpaid, and if the employer does not respond initially then you should send them a letter outlining why you think you are being underpaid.
If there is still no response from the employer then you should seek legal advice.
Remember, it’s unlawful for an employer to threaten the job security of an individual employee should they raise an inquiry or complaint about proper wage rates.