“It is very strange that an agreement that allows employers a mechanism to get employees to opt out of penalty rates completely has been approved,” he said.
“There is nothing in this opt-out that would benefit employees. So why would he have been considered better off than a prize?
Vice President Amanda Mansini, a coalition appointee whom the Morrison government promoted to the Federal Circuit Court last month, agreed to Mantle’s Hot Wok Food Makers deal, voted for by just four workers, in July last year.
While the VP raised unspecified concerns about whether the deal passed the BOOT, she said further information provided and commitments on hours, meal allowances and penalty rates on Christmas Day meant the deal passed the approval test.
Voluntary hours clauses have already been rejected by the commission because “volunteering” to work overtime is not a benefit that counts for BOOT.
University of Adelaide employment law professor Andrew Stewart said that “it is quite clear that, as a general rule, agreements with voluntary overtime (or ‘preferred hours’) provisions ) of this type should not be approved”.
“In theory, this disadvantage could be offset by other additional advantages in the agreement,” he said.
“But they should be substantial and there is no suggestion that was the case in the Hot Wok case. So, on the face of it, this deal should never have been approved.
Mantle Group began transferring employees to the Hot Wok deal at the same time it faced demands from workers to terminate its expired personnel services agreement, which was reached in 1999 and paid no rates penalty.
On Thursday, Fair Work Commissioner Jennifer Hunt terminated the personnel services agreement, saying it was “unconscionable” that Mantle had deprived workers of penalty rates for so long.
But she also criticized the approved Hot Wok deal and its voluntary hours clause, saying he should never have passed the BOOT.
“Hot Wok Food Makers Pty Ltd should, in my view, take its moral obligations to its employees very seriously,” she said.
“In my opinion, Hot Wok Food Makers Pty Ltd should never offer an employee a voluntary hours document, and where an employee has asked to work without payment of penalty rate, they should refuse to allow the employee to do so in the future. ”
Mr Sivaraman said “in light of Commissioner Hunt’s comments on the Hot Wok deal, my clients are considering all options in relation to this deal”.
Mantle owner Godfrey Mantle declined to say whether his employees had received any penalties, but dismissed Commissioner Hunt’s comments regarding the Hot Wok deal.
“It confers a higher base rate of pay and other benefits on workers than they would be entitled to under the ruling.”
The Hot Wok deal pays a base rate 2% above the minimum hourly reward rate.
The company has pledged to limit the number of days an employee can work more than 10 normal hours per day to eight days per four-week cycle.