Another example of wage theft has come before the Fair Work Commission, a warning to everyone, including school staff, about how far some employers will go to avoid paying fairly.
Workplace Express reported on 2 February that the Fair Work Commission has referred hospitality company Mantle Group›s HR manager to the Australian Federal Police for possible criminal prosecution after the tribunal found he provided false or misleading information about a substandard agreement that allowed the employer to ask workers to perform voluntary additional hours without penalty rates.
A full bench of the Commission accused the company of “deliberate manipulation of the statutory process of making enterprise agreements”.
In 2021, Mantle Group subsidiary the Hot Wok Food Makers Pty Ltd moved workers from a zombie deal, the Staff Services Pty Ltd Certified Agreement, that enabled the company to avoid paying penalty rates to its workers for 22 years, to the Hot Wok Food Makers Pty Ltd workplace agreement, which won endorsement from Fair Work Commission Deputy President Amanda Mansini.
The bench found that the deputy president had “substantially relied” on the HR manager’s “false or misleading” employer declaration when she approved the deal and warned “the process for considering applications for the approval of enterprise agreements would break down entirely if, in every case, the Commission was required to ‘go behind’ and investigate for itself the truth of the matters asserted in such declarations”.
It found the deal had not been genuinely agreed by employees that would be covered by it.
The four employees that the HR manager listed as employees under the agreement, who had purportedly voted for it, comprised two venue managers, an area manager and a payroll manager.
The bench confirmed that no classification in the Hot Wok agreement applied to these four employees and the agreement did not cover them.
The bench said Hot Wok’s “selection of four relatively high-paid managers to ‘make’ the Hot Wok agreement was part of a deliberate manipulation of the statutory process for making enterprise agreements”.
It highlighted that knowingly giving false or misleading information or knowingly producing a false or misleading document in support of an enterprise agreement application is an offence under theCriminal Code.
Federal Workplace Minister Tony Burke has said likened his industrial relations strategy to that of federal tax laws that are continually updated to close loopholes and protect public revenue (Workplace Express 6 February)
“This year, it’s about closing the loopholes that some businesses use to undercut those arrangements,” he told the Press Club recently.
He highlighted the recent Mantle Group case as a leading example of how employers “game” enterprise bargaining, while also providing “proof that closing loopholes will not simply be a job for this year, that some businesses have decided their entire business model will rely on finding the next loophole.”
But the “principal loophole” that needs to be closed is to stop employers undercutting their employees’ over-award payments under agreements by bringing in labour hire workers.
“You end up with the same workers doing the same job for technically different employers, and therefore for radically different rates of pay.
“The loophole needs to be closed. It’ll be closed this year,” he said.