Frequently Asked Questions

Can I employ someone who is 14 1/2 years old?

It is illegal for a child under the age of 15 years to undertake employment (or assist in any business, trade or occupation undertaken for profit) without a child employment permit. A child employment permit is a legal requirement authorising the employment of children under the age of 15 years. Information about child permits can be obtained from the Department of State and Regional Development - Child Employment Officer on 1800 287 287.

“Child Employment Act 2003” – General Information

“Child Employment Act 2003

In what circumstances can a minor serve alcohol on licensed premises?

A youth under 18 years of age can sell or supply liquor if they are in a training program approved by the Director of Liquor Licensing (section 122(2) Liquor Control Reform Act 1998 (Vic).

Can a minor serve alcohol?

Young people and Victoria’s liquor laws

Are casual employees entitled to long service leave? If so, how do I calculate what their entitlement is?

Casual employees are entitled to 13 weeks of long service leave on ordinary pay after 15 years of continuous service. In calculating a casual employee's entitlement, the employer must consider the following: whether the number of weekly hours worked is fixed for an employee, the employee's normal weekly number of hours is to be taken to be the average weekly number of hours worked by him or her in the 12 months immediately before he or she takes long service leave.

How many hours is a casual employee permitted to work in a seven day week?

There is no set maximum number of hours that a casual employee is permitted to work. However, on each occasion a casual employee is required to attend work he or she is entitled to a minimum payment for two hours work per shift.

Is it true that part time employees must work a minimum of 16 hours a week?

No. There is no longer a set minimum number of hours for part time employees. However, part time employees must work less than 38 hours per week and also work a minimum of three consecutive hours on any shift.

What are the rules applicable to annual leave?

Applies to all employees other than casuals.

• Annual leave is guaranteed at 152 hours (4 weeks) per annum based on a 38 hour week and will be pro-rated for part-time employees.
• Persons working more than 38 hours per week will not be entitled to accrue more than 152 hours leave per annum.
• Annual leave is cumulative and accrues on a pro-rata basis. Annual leave that has accrued must be credited to an employee each month.
• An employee may agree to cash out a maximum of two weeks' annual leave in a 12 month period, but only in accordance with applicable terms in a workplace agreement. An employee may not be forced by his or her employer to agree to the cashing out of any amount of annual leave.
• The employer must not unreasonably refuse to authorise annual leave.
• Authorisation by an employer may be subject to operational requirements of the workplace.
• An employee must take annual leave during pre determined shut downs.
• An employee may be directed to take up to a quarter of their accrued annual leave if they have accumulated more than 1/13 of the nominal hours worked in 104 weeks (in other words, a full-time employee may be directed to take 2 weeks leave if they have an accrued entitlement of 8 weeks)

An employee resigned from the Hotel after 7 months of employment. The employee is now demanding that they receive leave loading on their annual leave pay out entitlement. Do I have to pay it to the employee?

No. Whilst the employee is entitled to receive pro rata annual leave they are not entitled to the leave loading. If the employee had been employed for twelve months then the employee would have been entitled to the leaving loading.

Do part time employees receive 17.5% leave loading on their annual leave or is it calculated at a pro rata rate?

Part time employees are entitled to the leave loading at the rate of 17.5%. Whilst they receive annual leave on a pro rata basis this does not apply to leave loading.

Is a certificate from a chiropractor acceptable as a medical certificate?

Yes it is. A chiropractor is a health service provider and they are providing a health service just as any General Practitioner does. As such, in this respect, the medical certificate from a chiropractor should be no different than one from the local General Practitioner. Whether it is a physiotherapist or a chiropractor or a General Practitioner declaring an individual unfit for duties, the effect of the medical certificate is the same.

Notice and Evidence to support a claim for personal leave

• In order to be entitled to personal/carer's leave, an employee must comply with the notice and evidence requirements in the Act.
• Notice of absence due to personal/carer’s leave must be given to the employer as soon as reasonably practical.
• An employer may require evidence for any period of sick leave.
• Evidence for sick leave is a medical certificate from a registered health practitioner, if it reasonably practicable to do so, otherwise a statutory declaration.
• Evidence for carer’s leave for personal illness or injury is a medical certificate or a statutory declaration and a statutory declaration for an unexpected emergency.
•  A registered health practitioner extends beyond traditional medical doctors to practitioners that are registered by the relevant State or Territory health authority, however, the medical certificate must relate to the registered health professional’s field of expertise.
• The provisions concerning notice and evidence do not apply to an employee who could not comply because of circumstances beyond the employee's control.

What are the rules applicable to personal leave?

• Applies to all employees other than casuals (except unpaid carer’s leave).
• Personal leave includes sick leave and carer’s leave.
• Personal leave is cumulative and accrues on the basis of 1/26 of the nominal hours worked in each 4 week period but is not paid out upon termination.
• An employee whose nominal hours worked each week over a 12 month period are 38 hours would be entitled to accrue 76 hours paid personal/carer's leave (which would amount to 10 days of paid personal/carer's leave for that employee) over the 12 month period.
• Persons working more than 38 hours per week will not be entitled to accrue more than 76 hours leave per annum.
• Personal leave must be credited to the employee each month.
• Personal leave is not paid while an employee is on Workers’ Compensation.
• Carer’s leave is to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of a personal illness or injury or an unexpected emergency.
• Immediate family includes a spouse, child, parent, grandparent, grandchild or sibling of the employee or a child, parent, grandparent, grandchild or sibling of a spouse of the employee.
• Carer’s leave may only be taken for 1/26 of the nominal hours worked in each 12 month period (10 days per year for full-time employees) although the employee may have a greater amount of personal leave accrued.
• Unpaid carer’s leave of 2 days for each occasion is available to casual employees and employees who have exhausted their accrued personal leave or exceeded the cap on paid carer's leave.
• Unpaid carer’s leave can be taken as a single unbroken period of 2 days or as separate periods if agreed between the employee and employer.
• Authorised personal leave – whether paid or unpaid - does not break an employee’s continuity of service. Further, paid personal leave counts as service for all relevant purposes whereas a period of unpaid carer's leave may not count as service except in certain circumstances.

What are the rules applicable to compassionate leave?

• An employee is entitled to 2 days paid compassionate leave on each occasion that a member of the employee’s immediate family or household contracts or develops a personal illness or sustains an injury that poses a serious threat to their life, or dies.
• Compassionate leave is not paid out of personal leave entitlement and is available for each permissible occasion and is unlimited.
• Compassionate leave can be taken as a single unbroken period of 2 days, 2 separate periods of 1 day each or any separate periods if agreed between the employee and the employer.
• Compassionate leave is subject to the employee providing any evidence that the employer reasonably requires of the illness, injury or death.

Can I pay out an employee's long service leave entitlement and have the employee keep working at the Hotel?

No. To do so is an offence under the Long Service Leave Act 1992. Furthermore, an employer cannot employ a person who is on long service leave.

When is long service leave payable?

The Federal Hospitality Award is silent in relation to long service leave entitlements and as such the Long Service Leave Act 1992 sets out the requirements to be complied with. As stated within section 56 of the Act an employee is entitled to 13 weeks of long service leave on ordinary pay on completing 15 years of continuous employment with one employer. Section 58 details an employee's entitlement to long service leave if employment stops after seven years. In such circumstances, if an employee's employment is ended for any reason and the employee has completed at least 7, but less than 10, years of continuous employment with one employer then the employee is entitled to an amount of long service equal to 1/60th of the period of his or her continuous employment.

How much notice must be given to an employee whose employment is terminated during the 3 month probationary period?

In accordance with clause 17.1.1 of the Award, in order to terminate an employees employment, the employer must give an employee of 1 year or less years continuous service 1 week notice. See table below:

Period of continuous service	Period of notice
1 year or less	1 week
Over 1 year and up to the completion of 3 years	2 weeks
Over 3 years and up to the completion of 5 years	3 weeks
Over 5 years of completed service	4 weeks

I have a problem with an employee. I have not implemented the appropriate warnings but want to terminate their employment. Can I just make them redundant and hire someone else a few weeks later?

No. A redundancy must be a bona fide redundancy. Do not use poor work performance issues as an excuse to make an employee redundant. Once you start to cloud the issue of poor work performance with that of a redundancy, any subsequent termination may come under the review of the Commission

I have just terminated someone on the grounds of serious gross misconduct. The employee is now demanding two weeks notice pay. Is the employee entitled to notice pay under these circumstances?

No. An employee forfeits the payment of notice pay when terminated for serious gross misconduct.

What constitutes serious gross misconduct?

Serious misconduct includes:

• wilful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
• conduct that causes imminent and serious risk to:
• the health, or safety, of a person; or
• the reputation, viability or profitability of the employer's business.

Examples of serious misconduct includes:

• the employee, in the course of the employee's employment, engaging in:
  theft; or
  fraud; or
  assault; or
• the employee being intoxicated at work; or
• the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

Note that the definition as to what constitutes serious gross misconduct is wide and vast. Any decision to immediately terminate an employee on such grounds should not be made hastily. What one might consider to be that of serious gross misconduct the Australian Industrial Relations Commission may in fact disagree. Do not hesitate to contact the AHA (Vic) Workplace Relations Advisor to discuss any problems you may be having with your employees before terminating their employment on the grounds of serious gross misconduct.

What do I do if I suspect an employee is stealing?

To accuse any employee of theft is undoubtedly a serious matter. Any accusation of theft must be supported by conclusive evidence. It is suggested that members contact the AHA (Vic) to discuss the most appropriate action to take and to discuss whether or not it is best that the Police are involved in the investigation.

What is "constructive dismissal"?

It is a situation where there has been no explicit act of termination by the employer but the termination was implied by the employer having committed a fundamental breach of the contract of employment.

What is redundancy?

Redundancy is generally defined as occurring when an employer decides that they no longer wish the job an employee has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour. This may happen due to operational requirements, the introduction of new technology, economic downturns, company mergers, take-overs or restructuring. In addition to notice or payment in lieu of notice, many awards and agreements contain provisions requiring employers to pay severance when an employee’s employment is terminated in a redundancy situation. However, the federal Workplace Relations Act prohibits these provisions in awards applying to organisations that employ less than 15 workers.

Can I insist that an employee works on a public holiday?

An employee is entitled to a day off for a public holiday although an employer may request an employee to work. An employee can refuse a request to work on a public holiday on the “reasonable grounds”. A contrary term in an award or in an agreement has no effect.

• Reasonable grounds for refusal to work on a public holiday include:
• Nature of work
• Employee personal circumstances
• Whether unforseen circumstances
• Employer notice of requirement to work
• Any other relevant factor

Is Melbourne Cup Day a public holiday for those employees employed under the Accommodation, Hotels, Resorts and Gaming Award 1998?

Yes. From November 2008, changes to the Victorian Holidays Act now make Melbourne Cup Day a Public Holiday for all of Victoria. Public Holiday pay arrangements apply.

When a state public holiday is declared, will it effect staff under a Federal Award?

Yes it will effect those employed under the Federal Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 (the Award). In accordance with clause 34 of the Award, such employees are entitled to the Public Holidays as listed. Clause 34.1.6 then states that such employees are also entitled to "additional days declared or prescribed in a State, Territory or locality."

Are there penalties for staff who work split shifts?

Yes. Employees, other than casuals, who have a broken work day shall receive an additional allowance for a spread of hours as prescribed in clause 26 of the Award - Hours of Work. The allowance is as follows:

• Two hours over the hours worked in a day and up to three hours - $2.00.
• Three hours over the hours worked - $3.14.

Note that this allowance is a "once off" payment. An employee is not entitled to the allowance for each hour of the break between the two shifts. The employee will only get the allowance once.

Should Superannuation be paid when an employee works overtime?

No. In accordance with Clause 25 of the Award ordinary time earnings for superannuation purposes means:

• award classification rate;
• over-award payment;
• shift loading - including weekend and public holiday penalty rates earned by shift employees on normal rostered shifts forming the ordinary hours of duty not when worked as overtime;
• casual loading in respect to casual employees.

Ordinary time earnings does not include bonuses, commission, payment for overtime or other extraordinary payment, remuneration or allowance.

What should I do if an allegation of sexual harassment is brought before me?

The first thing an employer must do is remain impartial. Neither the victim nor the alleged accused should feel that their employer believes "one side over another". The existence of a sexual harassment policy which has been communicated to all employees, the taking of witness statements and speaking with the parties involved will all contribute to the investigation of such an allegation. Due to the delicate nature of the allegation it is recommended that you contact the AHA to discuss the way in which such a situation should be approached.

How much is WorkCover make-up pay, and how long should I pay it?

Should an employee meet with an accident at his/her place of employment and is subject to and qualifies for compensation under the Accident Compensation Act presently in force in the States and areas covered by the Federal Hospitality Award such employee shall have the amount received by way of compensation increased by the employer to the amount of the usual award weekly rate ruling at the time of such accident. The payment made by the employer shall be limited to a maximum period of 26 weeks.

 Casual employees make-up pay shall be based on the number of hours worked per week over the last month, with present employer, or if less than one month the average for the time worked. The amount to be paid is the normal weekly (Monday to Friday) rate of pay only (i.e. time and one-quarter).

I have received a notice from the union that they want to come to visit me at my hotel. What should I do?

Unions may enter the workplace to investigate a suspected breach of an Award, an Agreement or the Act or to hold discussions with employees during authorised breaks.

Entry rights are subject to the official holding valid entry permit and providing 24 hours notice to the occupier of workplace.

The official must have reasonable grounds for suspecting that a breach has occurred or is occurring in respect of the Act, a workplace agreement or an Award.

The permit holder may only enter premises to investigate a suspected breach:

• During working hours;
• If the work is being carried out by one or more employees who are members of the permit holder’s union; and
• If the suspected breach relates to or affects that work or any of those employees

A permit holder may only enter premises to hold discussions with employees who wish to participate in those discussions where any employee at the premises carries out work that is covered by an Award or collective agreement that is binding on the permit holder's union and is a member of the permit holder's union or is eligible to become a member of that union.

Employers may specify a place on the premises where discussions/ interviews are to be held and may also specify a particular route to reach such place – provided directions are reasonable.

Are there any rules about employing overseas workers?

If a business chooses to do so they must meet the regular industrial requirements of the workplace (ie the overseas worker will be employed on the normal conditions of employment).

In addition the worker must hold a working visa and must meet the visa requirements, including the following likely requirements:

• To ensure Health Care is covered – as insurance by the worker;
• To ensure that costs of return travel are covered;
• Prescribed gross wages

 The AHA National Office can assist members with working visa applications – (02) 6273 4007

I have some employees who work in a hotel as bistro attendants at Food and Beverage 2 level under the Hospitality Industry – Accommodation, Hotels, Resort and Gaming Award 1998. The employees have approached the manager and said that they have been told t

No. An employee is employed for the position that is advertised and offered to them or in any position offered to them by means of promotion within the business. A person is paid according to the job they are doing and the respective levels of employee classifications under the award relate to the minimum hourly rates of pay that an employer can pay to an employee in that given position.

If an employee has a gaming license and a responsible service of gaming certificate, they are eligible to apply for a position in a gaming area. If however, there are not any positions available in the gaming area and the employee is offered and accepts a position as a bistro person or as a bottle shop attendant, the applicant is engaged and paid as a bistro attendant or bottle shop attendant at the applicable award rate of pay.

What happens when the Federal Hospitality Award does not mirror State or Federal legislation in respect of particular matters? Which takes effect?

The Federal Hospitality Award takes precedent. However, in the event of any inconsistency Federal Legislation will prevail.