Simmo Pty Ltd
[2010] FWA 1940
•10 MARCH 2010
[2010] FWA 1940 |
|
DECISION |
Fair Work Act 2009
s.158 - Application to vary or revoke a modern award
(AM2010/15)
HOSPITALITY INDUSTRY (GENERAL) AWARD 2010
(ODN AM2008/4) [MA000009]
Hospitality industry | |
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 10 MARCH 2010 |
Summary: Hospitality Industry (General) Award 2010 - Modern Award variation - age at which employees should be employed in the service of liquor and what their wage rates should be - consistency between Modern Awards and State and Territory liquor legislation
[1] On 11 February2010 Simmo Pty Ltd of Innisfail, Queensland applied for a variation to the Hospitality Industry (General) Award 2010 (“the Hospitality Modern Award”) to remove what it contended, in effect, was a perceived inequity, as it is probably best described. The allegedly offending clause is clause 15.1 of the Hospitality Modern Award, which states:
“15.1 Junior employees will be paid in accordance with clause 20.5. Junior employees, on reaching the age of 18 years, may be employed in the bar or other places where liquor is sold. Junior employees working as liquor service employees must be paid at the adult rate of pay in clause 20.1 for the classification for the work being performed.”
[2] The Applicant, supported by submissions from the Queensland Hotels Association (“QHA”) and the Australian Hotels Association (“AHA”) contended that clause 15.1 of the Hospitality Modern Award hinders young people (under the of 18 years) in relation to opportunities to be employed in the serving and selling liquor in respect of national system employers when:
- the Queensland NAPSA (see below) had permitted employment on such terms;
- school-based traineeships and apprenticeships operate within the hotel industry for junior employees from 15 years of age;
- in response to the Hospitality Modern Award, the Applicant has had to deny employment to 4 junior employees (under the age of 18 years) serving liquor in its bottle shop;
- the Restaurant Industry Award 2010 (Modern Award) (“the Restaurants Modern Award”) provides (at clause 15.1) for employment of juniors under the age of 18 years of age where the law permits (see below);
- junior employment is a solution to labour supply issues in some remote areas (for example North Queensland where the NAPSA had coverage);
- the Queensland State Award continues to provide opportunities for junior employees under the age of 18 years for non-national system employers;
- the Liquor Act 1992 (Qld) made conditional provision for employment of junior employees under 18 years of age legally permissible in the State of Queensland (see the wider discussion below); and
- there is now uncertainty (well founded or not) within the hospitality and restaurant industries as to whether, for example, a trainee chef under the age of 18 years can serve food in an area in which alcohol is served.
[3] The Hotels, Resorts & Certain Other Licensed Premises Award - State (excluding SE Qld) (“NAPSA”) provides for a rate of pay for junior employees who are employed “in the service of liquor”.
[4] The relevant provisions of the NAPSA read as follows:
“5.4 Juniors
5.4.1 The minimum rate of wages for junior employees shall be the undermentioned percentages of the rates prescribed for the appropriate adult classification for the work performed for the area in which such junior is working.
Age Percent | % |
17 years of age and under | 70 |
18 years of age | 80 |
19 years of age | 90 |
20 years of age | Full Adult Rate |
5.4.2 The percentage prescribed in clause 5.4.1 herein shall be calculated to the nearest 10 cents. Any broken part of 10 cents in the result being less than 5 cents shall be disregarded. Five cents and over shall go to the higher 10 cents.
5.4.3 An employer may at any time demand the production of a birth certificate or other satisfactory proof for the purpose of ascertaining the correct age of a junior employee. If a birth certificate is required, the cost of such certificate shall be paid for by the employer.
5.4.4 Where a junior employee who is less than 18 years of age is engaged in the service of liquor, they shall be paid the 18 year rate of pay.” [My emphasis]
[5] A similar provision continues to be found in the current provisions of the Hotels, Resorts & Certain Other Licensed Premises Award - State (excluding SE Qld) 2003, State Award (“State Award”) (see clause 5.4.4)
[6] As I construe the argument for the Applicant, notwithstanding the Fair Work Act 2009, the role of the Hospitality Modern Award is to regulate rates of pay and conditions, but not to otherwise appear to regulate (or give the impression of regulating) the circumstances in which an employee (under the age of 18 years) may sell and serve alcohol. The latter issue is one that is determined in each State and Territory by way of the prescriptive provisions of the relevant Liquor Acts.
[7] Both the NAPSA and State Award operate(d) consistently with the Liquor Act 1992 (Qld), which, itself, relevantly reads as follows:
“155 Minors on premises
(1) This section applies to all minors other than an exempt minor.
(2) A licensee, permittee or person in control of the premises to which the licence or permit relates must ensure that a minor is not on the premises.
[...]
(4) In this section -
exempt minor means a minor on premises to which a licence or permit relates if—
(a) the minor is a resident on the premises; or
(b) the minor is on the premises to—
(i) perform duties as an employee of the owner, or occupier, of the premises or a part of the premises; or
(ii) perform duties in the conduct of a lawful business; or
(iii) perform duties while receiving training for employment or work experience; or
(c) the minor is attending a function being held on the premises; or
(d) the premises are premises to which a community club licence or restricted liquor permit relates and the minor’s presence does not contravene the club’s rules or a condition of the licence or permit; or
(e) the minor is on the premises for a purpose, and in circumstances, approved by the chief executive or stated in a condition of the licence or permit; or
(f) the minor—
(i) is eating a meal on the premises; or
(ii) is accompanied by a responsible adult who is responsibly supervising the minor.
(5) However, a minor is not an exempt minor merely because the minor is eating a meal on the premises or accompanied by a responsible adult if—
(a) the minor is on premises after 5pm; and
(b) the premises are being used for the conduct of business for the principal activity of providing entertainment on the premises.
155AA Minors must not be in approved area when adult entertainment being provided
(1) This section applies despite section 155, if the licensee or permittee of, or an approved manager working at, the premises to which a licence or permit relates to which a community liquor permit or restricted liquor permit relates holds an adult entertainment permit.
(2) The licensee or permittee, an approved manager working at the premises, or the licensee’s or permittee’s controller, if any, must ensure that a minor is not in an approved area when adult entertainment is being provided.
Maximum penalty—200 penalty units.
(3) To remove doubt, it is declared that a minor can not be in an approved area in the capacity of a performer of adult entertainment.” [My emphasis]
[8] The submissions by the Applicant, QHA and AHA were supported generally by Mr Allan Richard Dale. Mr Dale presented as a private citizen who has 16 years experience as a police officer in Queensland, experience as an Executive Member of the Queensland Police Union of Employees, two years teaching experience in Queensland and three years current experience working in the Queensland Office of Liquor and Gaming Regulation leading a project to develop training frameworks for the responsible service of alcohol and gambling in Queensland.
[9] As its primary position, the LHMU opposed any variation on the grounds that the Hospitality Modern Award reflected the terms of the pre-reform federal award, the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 (“the pre-reform award”).
[10] Sub-paragraph 15.5.3(b) of the pre-reform award provided as follows:
“Junior employees, on reaching the age of eighteen years, may be employed in the bar or other places where liquor is sold. However, where a junior is employed the adult award rate for the work being performed must be paid; [...]”
[11] The pre-reform award did not have coverage in North Queensland; its coverage was limited to South East Queensland (and other States).
[12] The various State legislative arrangements (notably New South Wales, Western Australia and South Australia) and are generally prohibitive of the employment of persons under the age of 18 years in or on premises where liquor is sold.
[13] The Liquor Acts in the Australian Capital Territory, Northern Territory and Victoria and Tasmania, to varying degrees, are more reflective of the Liquor Act 1992 (Qld).
[14] Having said that, I see no utility in the existing clause in the Hospitality Modern Award not permitting junior employment and training opportunities in those areas where such opportunities already exist in consonance with the relevant State or Territory legislation, or purporting to regulate when a junior employee will work in or on premises where liquor is sold where such matters are properly regulated by statute.
[15] In this regard, the approach of the Hospitality Modern Award contrasts with that of the Restaurants Modern Award. The Restaurants Modern Award reads at clause 15.1 as follows:
“Junior employees will be paid in accordance with clause 20.3. Where the law permits, junior employees may be employed in the bar or other places where liquor is sold. Junior employees working as liquor service employees must be paid at the adult rate of pay in clause 20.1 for the classification for the work being performed.”
[16] The Restaurants Modern Award provides for the employment of junior employees (under 18 years of age) working as liquor service employees (consistent with the relevant State law).
[17] As I alluded to above, issues may arise as to the interaction of the two Modern Awards in certain circumstances, real or perceived.
[18] I am persuaded, overall, that the Hospitality Modern Award should be varied in so far as it regulates the age at which a junior employee may be employed in or on premises where liquor is sold, with the effect that the Hospitality Modern Award is not perceived as being inconsistent with any State or Territory legislation (as to whether or not it permits or prohibits the employment of employees under the age of 18 years in premises where liquor is sold).
[19] In light of this, I will order that current clause 15.1 of the Hospitality Modern Award be omitted, and replaced by the following words (which I have derived by editing the current Modern Awards provisions, and the LHMU 1 and the QHA’s proposed alternative clauses):
“15.1 Junior employees will be paid in accordance with clause 20.5. Where the law permits, junior employees may be employed as liquor service employees (being persons employed to sell or dispense liquor in bars and /or bottle departments or shops, as well as cellar employees or other places where liquor is sold) and must be paid at the adult rate of pay in clause 20.1 for the classification for the work being performed.”
[20] An order to this effect will issue along with this decision.
[21] By way of conclusion, I am not persuaded on what has been put before me that I should vary the rate of pay the Hospitality Modern Award stipulates the rate of pay that a junior employee must receive when they are engaged in such services.
[22] At the hearing of this application, none of the parties appeared to demur from this potential outcome.
[23] The clause promoted by the QHA and AHA for purposes of the variation was clause 15.1 of the Restaurants Modern Award, which stipulates that the rate of pay for a junior employee working as a liquor services employee must be the adult rate of pay in clause 20.1 for the classification for the work being performed.
[24] I will therefore preserve the rate of pay the Hospitality Modern Award stipulates junior employees will receive when they are so employed. The decision of the Full Bench of the Hospitality Modern Award in this regard reflected a harmonised position across the various awards and instruments that were before it during the award modernisation process, though this will mean wage cost increases for employers in some areas (such as North Queensland) who employ junior employees in the service of liquor.
[25] On balance, this is a practical outcome given the likely limited number of junior employees affected in any one establishment in North Queensland as opposed to the impact of changing the existing labour costs mix nationally for junior employees employed (by national system employers) working as liquor service employees (as stipulated in the two Modern Awards set out above).
SENIOR DEPUTY PRESIDENT
Appearances:
Mr T Hogan and Ms L Stoddart of Hogan & Associates for the Applicant
Mr W Ash for Liquor, Hospitality and Miscellaneous Union
Ms J Minchinton for the Queensland Hotels Association and the Australian Hotels Association
Mr A Dale on his own behalf
Hearing details:
2010.
Brisbane, Sydney.
March 8.
1 The amendment proposed by the LHMU was a secondary or alternative position only. Its primary position was cited above.
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