UWU mounts legal challenge against unfair penalty rates for hospo workers
The United Workers Union, the union that represents the hospitality industry, has mounted a legal challenge against an agreement that enables workers to waive away all their penalty rates to work extra hours.
The union has appealed the Fair Work Commission’s approval that saw Queensland-based Mantle Group, which runs James Squire brewhouses in Sydney and Brisbane, the Pig N Whistle pub chain and other up-market establishments’ deal with workers.
The union, which is being represented by Maurice Blackburn principal Giri Sivaraman, argues the agreement does not pass the better off overall test and “undermines the fundamental objectives of the Fair Work Act”.
“If this agreement is allowed to stand it gives Mantle an incredibly unfair advantage over all the other hospitality operators in the space who are actually paying the award penalty rates,” Sivaraman said.
The Union has been lobbying against mantle for some time, with the company avoiding weekend, evening or overtime penalty rates for 22 years under the long-expired “zombie” agreement approved in 2000.
That agreement was terminated in May 2022, however Mantle has transferred staff to the ‘Hot Wok Food Makers’ agreement with a provision to “voluntarily” give up all their penalty rates.
Mantle argues that under the current agreement, higher base rates and benefits are paid than the award: base rates are just two per cent higher than the minimum rate.
Sivaraman argued there was “nothing of any benefit to an employee”.
“And it’s fanciful to think that an employee will give up their penalty rates for any reason other than that they know they will unlikely get any shifts if they are a casual,” he said.
The UWU will argue the agreement cannot stand as it was only backed by four employees but used to cover “all casual and permanent employees who worked for [Mantle’s] wider workforce”.
It will also argue that it is “in the public interest to ensure that a workforce is not worse off under an agreement than they would be under an award, and that the award continues to provide the guaranteed safety net”.
A full bench will hear the appeal over the coming months.
Irit Jackson, 1st June 2022
