This tool is designed to enable P&C members to manage the process themselves reducing legal risk and exposure. We have prepared the consultation packs so you meet this requirement of the Award. We have already drafted scripts to help you have what can be difficult conversations. We have developed a spreadsheet to ensure that you are paying out your employees correctly. We normally sell this product for $399 but as P&Cs are Not for Profit we have reduced this price to $299. Access everything you need to make this great for your employees and for your school. If you wish to have one of our Employee Experts complete this process with you then please contact us
Outsourcing your Canteen Pack – includes the following:
- Checklist – Definition of casual – to identify casuals to understand the ramifications of outsourcing
- Checklist – Definition of volunteer – to identify volunteers to understand the ramifications
- Checklist – Definition of permanent part-time – to identify permanent part-timers to understand the ramifications
- Consultation Pack – framework of what & how to communicate with your employees to meet your consultation requirements
- Redundancy Pack – a Process Guide and letter templates
- Communication Plan – a guide to manage your communication process with all your stakeholders
- Financial Summary Schedule – a spreadsheet template to record and manage the financial implications
- FAQs – What are some of the Frequently Asked Questions in this scenario?
- One hour free consulting time to assist with questions or implementation
A White paper on the challenges and risks faced by P&C’s as employers in Australia
Why are School P&Cs exposed to fines of up to $54,000?
What is happening to our school canteens? Why are we struggling to source volunteers to make and serve our kids morning teas and lunch? Moving forward – what are our options? These are some of the questions that P&Cs across NSW are grappling with at the moment.
To understand why this is becoming an issue we need to look at the traditional canteen model – which was operated by a group of volunteers and managed by the P&C – which morphed into the scenario where there was a paid Canteen Co-ordinator who ran the canteen supported, typically, by a group of faithful volunteers. As time progressed, the demand for the canteen increased in line with the number of mothers returning to the workforce, sooner and in greater numbers than before. The solution that many canteens introduced was to supplement the volunteers with casual employees. The P&C then effectively becomes an employer and with that definition comes the legal obligations of an employer managing employees.
The really scary piece of this puzzle is that many P&Cs don’t fully understand their legal obligations as the employer of these “casuals”. E very individual breach of the Modern Award attracts fines of up to $54K for the organisation – in this case the P&C. Even more concerning is the risk of individual fines for parent members of the P&C of up to $10,800 per breach. Now I suspect that I have your attention and whilst I know there was never any intention to do the wrong thing here but unfortunately ignorance is not a defence.
In the past there was rarely the need for a canteen to make a profit; it was just an additional service for the parents and students. Now the reality is that the canteen is taking up an incredible amount of time to run and manage. I believe that as a result of the dwindling number of volunteers and the large amount of time taken to effectively manage canteens, there is a growing trend where schools look to outsource to private operators. The intention of this paper is not to debate whether this is the right or wrong thing to do; rather it is to investigate some of the volunteer, employee and employer (P&C) impacts that will result.
The areas of potential non-compliance are as follows:
1. Which Modern Award covers P&C-run canteens and what are the obligations under this Award?
Canteens fall under the Fast Food Industry Award 2010 and with this allocation comes a number of requirements. Firstly, each casual or permanent part-time employee needs to be advised that they fall under this award and what the classification of their role is as a result. If they are new permanent part-time employees they should also receive the Fair Work Information Statement. Both casual and permanent part-time employees should also have employment contracts.
In addition, you need to ensure that you are paying the correct minimum wages and overtime – if appropriate. There is also a minimum shift time of three hours. If the individual is a casual employee they need to be paid the ordinary hourly rate of pay of a permanent employee plus an additional 25% of this rate of pay because they are casual and therefore not entitled to sick leave or annual leave.
2. What is the definition of a volunteer?
Typically volunteers are not employees. The reason for this is that in order for there to be an employer/employee relationship, some form of ‘consideration’ is required such as wages or a salary before an employment contract will be taken to have been formed. Whilst they are not deemed to be employees and they do not have the usual statutory rights of employees, they do have the right to ‘a safe place of work’ as Workplace Health & Safety legislation covers all people in the workplace – including volunteers.
3. What is the definition of a casual employee?
These individuals work on an ‘as needs’ basis, with an irregular pattern of work. Each time the casual employee works, it is deemed that they are entering into a distinct and separate contract. Practically, casual work involves employment for fewer hours than the normal full-time working week. It is normal for casuals to be paid by the hour.
As a casual employee there are no accruals of permanent employee benefits such as overtime, annual leave, long service leave (except in NSW), paid personal leave or payment for public holidays. Their rate of pay does, however, incorporate a loading to compensate for this lack of benefits, which is currently 25%. Casuals have less protection when it comes to dismissal; they are not protected under Unfair Dismissal laws unless they have completed a minimum period of 12 months of service and all casuals are excluded from minimum notice periods. Unless their relevant award, employment contract or enterprise agreement states otherwise, casual employees can be dismissed at the end of their shift. (The rationale for this is that they are typically employed from shift to shift). The good news here is that there is no Casual Conversion clause under this Modern Award that forces employers to convert casual employees to permanent part-time employees after a period of ongoing and systematic service.
4. What is the definition of a permanent part-time employee?
Whilst there is also no formal qualification of part-time hours, it is understood that they generally work less than 38 hours per week. They are different to casual employees in that they typically work the same hours each week. As defined by Modern Awards, they work ‘reasonably predictable’ or ‘constant’ weekly hours. When it comes to dismissal these workers generally have access to the complete range of legal remedies unless it explicitly states otherwise in the Modern Award covering their role. Damages presented to a permanent employee would typically be higher than those granted to a casual employee.
Once the permanent part-time employee has been hired, to meet the obligations under the FWA, the employer must give them the Fair Work Information sheet.
As you can see from the definitions above each employment relationship carries different obligations and different ‘rights’ for the employee. It is critical that you know and understand these differences and hire the correct type of worker for your needs.
5. What are the processes to follow if you choose to outsource your canteen?
Many schools are considering outsourcing their canteens and if this is to proceed there are ramifications for both casual and permanent part-time employees currently employed by the P&C.
The first obligation is to ‘consult on major workplace change’. Employers are required to notify employees of the changes and the expected impacts. This would include the potential outsourcing of the school canteen. Furthermore, the employer has an obligation to discuss the changes and the potential impacts, with the employees. These discussions need to take place as soon as possible after a definite decision has been made. In order for this discussion to meet the requirements of the Award all information pertaining to the changes need to be shared in writing. This would include the nature of the changes and the expected impacts. There is no need to disclose confidential information which would be contrary to the P&C’s interests.
Some new providers may look to hire the canteen’s current employees but they have no obligation to do so. If they do not wish to hire these employees then their roles will effectively be made redundant. In Australia all terminations should not be ‘harsh, unjust or unreasonable’ – this basically means following the correct process:
- The employer needs to meet with both casuals and permanent part-time employees to advise them that their role is at risk of redundancy. The employer should offer each individual employee access to a support person, if they would like to have one present. The employer needs to let them know they are considering whether there are redeployment opportunities for the employee and ask whether the individual has any thoughts around this. In this circumstance, it is highly unlikely – but in order to follow due process this is important
- At this point the employer should share with their permanent part-time employees an indicative redundancy package in the event the redundancy progresses. This would include annual leave and notice (if there are under 15 employees then no redundancy package is payable). If there is a headcount of 16 or more employees, (and casual employees are included in this headcount), then redundancy payments would be required. It would also include Long Service Leave (in NSW casual employees also get this), if the individual has over five years of service. This payment would be pro-rated and if they had been continuously employed for ten years this would be 8.67 weeks.
- In the event that the employee confirms they see no other alternative roles the employer might be able to finalise the redundancy discussion in the one meeting. (If not, they can arrange to meet the next day to consider the employee’s suggestions). If any are viable the employer might look to transfer them to another role – otherwise the redundancy can be finalised. The payout needs to be paid on or before the next regular pay day.
- In NSW, casual employees would also be entitled to Long Service Leave. As a casual, there are no annual leave entitlements.
My two major concerns are (a) I suspect that many P&Cs have not been accruing for Long Service Leave or making redundancy payouts where required and (b) if the correct process around redundancy and consultation is not followed there is a risk of being in breach of the Fast Food Industry Award and each breach of a Modern Award can attract a fine (remember? – up to $54K for the organisation (the P&C), and up to $10,800 for individual P&C members – per breach).
This is not something that will encourage more parents to join the P&C, when getting regulars is hard enough. Nor is it fair to potentially penalise the dedicated regular P&C members who put many unpaid hours and effort into their schools to make them great for their kids.
So what are the next steps if you or your school P&C is in this predicament? Well as a start we hope that this White Paper will help P&Cs to understand some of the legal compliance and processes that need to be followed.
In an attempt to assist you further, we have developed an Outsourcing your Canteen Pack (as detailed above).