The move is the third time since 2000 that Mantle has avoided paying the award’s penalty rates and comes as its head of human resources is facing a potential referral to police for lying to the Fair Work Commission over a previous sham agreement.
Maurice Blackburn principal Giri Sivaraman, who has challenged Mantle agreements on behalf of United Workers Union, said the offer seemed to leave staff worse than the award and questioned its confidentiality given Labor’s new anti-pay secrecy laws.
“What this is about is preventing an employee exposing further dubious practices by Mantle Group,” he said.
Mantle denies firings
Mantle, owned by millionaire Godfrey Mantle, operates restaurants and pubs in Brisbane and Sydney, including James Squire brew house, The Squire’s Landing on Sydney Harbour, Brisbane CBD restaurant Jimmy’s On the Mall, the Pig N Whistle pub chain, and new three-level riverside restaurant and bar Babylon Brisbane.
A Mantle Group spokeswoman said the new agreement was just a minimum and claimed the group paid staff “significantly above” the agreement and the award’s base rates and also paid some loadings for weekends and public holidays.
She said that “management have been instructed to brief their staff that [the employing entity] is paying 225 per cent public holiday rates. This includes Australia Day”.
“Managers have been notified, and subsequently their staff, that they will not be required to swap public holidays to another date designated by [the employing entity],” she said.
She said it was not correct the company had sacked casuals, who make up the majority of its 700 employees, as she argued “in law, casual employment … ceases at the end of each shift so casuals have been simply offered work with [the other entity]“.
Staff speaking anonymously to The Australian Financial Review for fear of retribution say they are paid the same base rate as the award with 25 per cent casual loading but without the award’s penalty rates. They received “cessation of employment” letters on Monday.
The group has not paid full penalty rates for two decades by legally maintaining an old “zombie” agreement – a position the Fair Work Commission branded a “disgrace”.
When employees backed by the UWU terminated that agreement last year, the company transferred staff to another agreement known as “Hot Wok Food Makers” that included a controversial clause for staff to “voluntarily” waive away all penalty rates.
A FWC full bench this month held Mantle’s HR chief Darren Latham lied about the Hot Wok agreement to get it approved and set up a sham voting cohort made up four high-paid managers to make it. The commission’s general manager is considering referring him to the Australian Federal Police for possible investigation. Mantle Group has indicated it intends to appeal the decision.
The full bench quashed the agreement on January 12, making Mantle staff eligible for 18-months backpay and entitled to the award’s penalty rates going forward.
But days later Mantle has rehired those employees under KGS Staff Pty Ltd which has a 2019 agreement that originally covered just eight staff at the group’s Vietnamese restaurant Phuc Deli-Viet.
While the agreement originally paid base rates more than the award (“inclusive of any applicable weekend penalties”), its lack of pay rises over the past four years means the rates have fallen below the award.
In such cases, the Fair Work Act only requires employers to pay the minimum base rate in the award and not its penalty rates.
A Mantle spokesman said that “in each subsequent year the minimum rates of pay are increased in line with the applicable award”.
Mantle’s job offers also expressly say KGS does not request employees to work public holidays – which would entitle them to the only penalty rates under the agreement.
Instead, the employee “agrees that they will swap all designated public holidays to a date which may be designated by KGS from time to time”.
Mantle’s spokeswoman said swapping public holidays was allowed under the award as well as the agreement, and argued “the letters of offer do not force employees to swap public holidays”.
“The letter expressly states that an employee can withdraw from any agreement to swap public holidays,” she said.
She said it should be read “in conjunction with subsequent letters and venue briefings provided to staff”.
Staff told The Australian Financial Review they had had no briefings about the offer and the changes came out of the blue.
The letters are signed “KGS Staff” and say workers start their new employment when they work their next shift last Tuesday.
A Mantle spokesman said, “it is a matter of choice for each individual as to whether or not they accept employment with KGS”.
The job offers also require staff to not “disparage” KGS, its officers or directors and forbids them from disclosing confidential information including the employment agreement, its contents and salary offers except “as required by law”.
A Mantle spokeswoman denied this conflicted with the Albanese government’s ban on pay secrecy clauses that was passed late last year as it permitted disclosure “when authorised by law”.
“KGS has no difficulties in staff discussing remuneration in accordance with their right to do so in the Fair Work Act.”
The spokeswoman did not respond to questions about whether it was conducting a backpay review for staff or had been paying staff penalty rates over the past fortnight.
She said the company would seek to appeal the full bench decision “on the basis of bias” during Federal Court hearings scheduled in the next few months.
“It is not appropriate for Hot Wok to make any comments on those matters while the Federal Court matter remains pending.”