Apr 272017
 

Religious organisations and not-for-profits are on notice following a recent Fair Work Case.  You must get it right with all your workers and check whether they are covered by a modern Award.

A man on a religious worker visa worked in a Hindu Temple in Melbourne for 18 months. He complained about being underpaid for his work in the temple canteen, and the Fair Work Ombudsman ordered the Hindu Society of Victoria to back-pay him $77,754.

The worker said he was contracted to work as an assistant priest, but found himself working in the temple canteen instead. The Hindu Society originally contracted the worker to carry out religious duties, including some kitchen cleaning, but there was no mention of him being a cook or chef.

The Federal Circuit Court found that the Hindu Society was not just providing religious services, but also running a business in the restaurant industry. The Society was selling food at the canteen with an annual turnover of $600,000. 

“I note that the definition of restaurant industry in the Award includes businesses that are not traditionally considered restaurants, such as night clubs, reception centres, tea rooms and cafes. It appears that the Award is intended to cover those employed to prepare meals unless in an excluded category. The exclusions in cl.4.8 do not cover the activities of the [employer], even by analogy.”

The worker, who mainly performed the duties of a cook and not those of a religious worker, was covered by the Restaurant Industry Award 2010.

Peter McNamara is a partner in Clark McNamara Lawyers, a CBD commercial law firm that advises employers about employment and workplace law. 

Read the full Case Note below.

Hindu Society of Victoria (Australia) Inc v Fair Work Ombudsman [2017] FCCA 423 (10 March 2017)

Applicant: Hindu Society of Victoria (Australia) Inc

Respondent: Fair Work Ombudsman

Facts:

  • The Applicant is a not-for-profit organisation run for the benefit of its members.
  • Mr SN travelled from India to Australia to take up the position of assistant to the priest in a Temple in Melbourne run by the Applicant, which included accommodation on the Temple the premises.
  • Mr SN was given a contract of employment. None of the skills outlined in the contract involved cooking.
  • Following investigations, the FWO concluded that the appropriate award for the work actually being carried out by Mr SN was the Restaurant Industry Award 2010 (“the Award”) and issued a compliance Notice under s 716(2) of the Fair Work Act 2009.
  • The Applicant argued that the Notice should be cancelled under s.717(3) as it had not contravened the Act by failing to make payments in accordance with the Award, on the basis that:
  • the Applicant was not “in” the restaurant industry and therefore not covered by the Award;
  • Mr SN was not appropriately classified as a cook under the Award; and
  • The calculations carried out by the FWO in drawing the compliance notice were incorrect.

Issue:

  • Whether or not the Applicant, in running its canteen in the Temple (and later in the Cultural and Heritage Centre) was operating a business within the ambit of the Award; and
  • Whether or not Mr SN was fulfilling his contract by providing religious services as an assistant priest, or alternatively was working within the definition of a cook covered by the Award.

Decision:

  • The Applicant was within the “restaurant industry” under the Restaurant Industry Award 2010, at least to the extent of the operation of its canteen in the Cultural Centre.
  • There was a significant variance between the overall nature of the duties as described in the documents prepared to engage the employee and obtain his visa, compared to the substantive duties that he carried out.
  • The duties carried out by Mr SN were effectively that of preparing food, and almost entirely food that was to be either given to worshippers or sold, rather than the specially prepared food to be offered to the religious deities.
  • There is no basis for making a finding of any hours different to those shown in the compliance notice.
  • Due to the unusual nature of the undertaking involved (a religious organisation running a temple, and then expanding into a cultural centre), no order as to costs was made.

Orders:

  • The application is dismissed.
  • Pursuant to s.717(3) of the Fair Work Act 2009, the compliance notice issued to the Applicant by the Fair Work Ombudsman is confirmed.
  • There be no order as to costs.

Applicable principles:

  • When contesting a compliance notice in Court, the employer bears the onus of proving that they have paid their employees correctly.
  • The definition of restaurant industry in the Award includes businesses that are not traditionally considered restaurants, such as night clubs, reception centres, tea rooms and cafes. The Award is intended to cover those employed to prepare meals unless in an excluded category.
  • The proper determination of the role is one having regard to the actual duties carried out.
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