Last week, a gaggle of high-profile Australian chefs complained — via the front page of The Sydney Morning Herald — about complicated labour laws. Chin Chin and Kisume’s Chris Lucas and Aria’s Matt Moran were just some of the names quoted, with Lucas calling for an amnesty for businesses guilty of underpaying staff “to allow employers to make adjustments without fear of being publicly attacked or fined”.

Describing Australia’s labour laws as “outdated, convoluted and complex”, Lucas said it was “almost impossible for even the most professional organisation to be totally compliant”. “Hitting employers with a big stick is not going to solve the problem,” he added.

On Friday, it was revealed that Lucas’ company, The Lucas Group, underpaid staff by $340,000 in the 2017-2018 financial year. The expose came just days before the company’s Melbourne restaurant Chin Chin prepared to host a roundtable on industrial relations titled “Profitable compliance — is it possible?”

Moran, for his part, insists that “making any hospitality company 100% compliant is hard because there are so many different awards. We are compliant but it takes a lot of resources. The whole thing should be simpler.”

This follows a high-profile string of restaurateurs caught up in wage-theft scandals, including former MasterChef judge George Calombaris, Heston Blumenthal, Teage Ezard and Guillaume Brahimi. Neil Perry’s Rockpool Dining Group was forced to pay back staff $1.6 million in March for a single year of underpayment. The ombudsman is investigating the organisation.

But is it really that hard to navigate Australia’s employment laws? And what would an “amnesty” for employers actually look like?

Outdated criticism

The author of the SMH article, food journalist Dani Valent, wrote that “industry players are frustrated by the complexity of workplace law”. As proof, Valent pointed out that the Fair Work Act is 1035 pages long.

But Professor Joellen Riley from the University of Technology Sydney’s Law School told Crikey that while “once upon a time it may have been fair criticism of our industrial relations system to say we aren’t sure if we, as a company, are covered by a federal or state award-rate, or say there are so many different awards and regulations, that hasn’t been the case since 2010”.

That was the year minimum wages and employee conditions were simplified and set out in 130 modern award rates. Each award covers a different industry and, according to Riley, are so specific that it isn’t difficult to work out under which one your business would fall. There is the Alpine Resorts Award 2010, Mobile Crane Hiring Award 2010, Salt Industry Award 2010 or, in the case of restaurateurs, the Restaurant Industry Award 2010.

“I find it somewhat bemusing that there is always this complaint that our system is far too complicated,” Riley said. “Sure it is more complicated than in a third-world country where you can pay people whatever you like, but we want to live in a society where people can actually afford to go to restaurants, where these businesses are viable because people are actually paid for their work.”

What even is an ‘amnesty’?

UTS Business School Associate Professor Sarah Kaine said it wasn’t clear what restaurateurs meant by asking for an “amnesty”.

She said restaurateurs might be calling on the Fair Work Ombudsman (FWO) to waive contrition payments employers are asked to make as a gesture of good faith, in addition to back-paying wages owed. These sums are negotiated with the FWO as part of a court-enforced undertaking — a written agreement the FWO makes with the offending employer as an alternative to going to court. For example, as well as back-paying $7.8 million in owed wages, Calombaris’ Made Establishment agreed in July to pay a $200,000 contrition sum.

The idea of waiving penalties for employers breaking workplace laws recently entered public debate with a proposed superannuation guarantee amnesty. In September, Assistant Treasurer Michael Sukkar proposed changes to superannuation laws that would waive the mandatory $20 administrative fee per employee, per quarter for employers who fail to pay an employee’s super on time.

But Kaine said waiving such penalties “lowers the bar on what we should come to expect [from employers]”.

“Businesses have to deal with a whole range of regulations across various areas. Otherwise, frankly, there should be questions about the appropriateness of these businesses operating. These are not suggested standards, or a vague framework; neither is our tax system or our work and health and safety system.

“We can’t say that [employers] can underpay super or penalties and repay them later. Quite simply, employers just need to abide by the law. We do that every day. It’s not hard.”

Do you think employers who underpay their workers deserve an amnesty? Send your thoughts to [email protected]. Please include your full name for publication. 

Peter Fray

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