When ignorance of the law isn’t even an excuse

toriness 13 June 2010 28

There have been, if my memory serves me correctly, a few posts and debates on RA before about public holiday surcharges in restaurants. There are the for and against sides to the debate to be sure but the bald-faced arrogance in a statement by Canberra’s Tosolini’s quoted in this SMH article expressly stating their deliberate flaunting of their disobedience regarding the law regarding public holiday surcharging surely beggars belief:

”But no one else did, no one else was complying,” Sam said. ”So I thought, ‘I’m not going to comply until we get told to.”’

Sam, you are an idiot!


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28 Responses to When ignorance of the law isn’t even an excuse
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m_ratt m_ratt 9:32 pm 17 Jun 10

The one that really annoyed me was Australian Pizza Kitchen in Woden. A 10% surcharge, not just on Public Holidays, but also Fathers Day. No extra costs due to penalty rates, just blatant profiteering on a full restaurant.
I live 4000km from my father, and had no idea it was even Fathers Day until presented with the bill and surcharge.

glennmatthew glennmatthew 11:57 pm 15 Jun 10

UrbanAdventure.org said :

Sorry Glenn, but the laws of offer and contract do not overide the laws of fraud. No business practice is ever legitimate if it involves illegal practices. Basic first year corperate law there.

And I love it how “professionals” just go “nah you’re wrong”, yet fail to explain why.

So I applied simple logic to the situation at hand, in plain English, and was very clear about the process I used. I was also very clear about my lack of qualifications. I’d like to see you apply some educated, factual information to this conversation given you have tertiary education in this field.

Now my limited, uneducated belief is that fraud involves deceptive conduct? The business’ are advertising the fact they are breaching the Trade Practices Act, quite clearly. You’re not being induced to enter the contract with false information, as you are completely aware of the total cost of the offer. The advertising is specifically an offense, rather than the contract itself.

We’re not discussing whether the business is legitimate; we are discussing whether you can get a refund on something you had considered, clearly had the capacity to understand, then agreed to. Thus I said I doubted you had recourse, which means I am unsure of the outcome, for obvious reasons, yet there are some constructive points you need to consider.

Perhaps you should get a lawyer? Oh wait, you studied law. Why are you asking a public community for their opinions on legal issues, again?

UrbanAdventure.org UrbanAdventure.org 6:37 pm 15 Jun 10

glennmatthew said :

UrbanAdventure.org said :

I mean if the business is knowngly acting illegaly, isn’t that fraud?

I’m no lawyer……

As some one who has studied law at university I almost always find it both amusing and remarkably ill informed pretty much everything that anyone says after those three words. Sorry Glenn, but the laws of offer and contract do not overide the laws of fraud. No business practice is ever legitimate if it involves illegal practices. Basic first year corperate law there.

UrbanAdventure.org UrbanAdventure.org 6:27 pm 15 Jun 10

troll-sniffer said :

UrbanAdventure.org said :

…. This is of course assuming that they did not have their week end menu.

The point is you haven’t actually paid any more, you’ve just not been given the correct menu with the surcharge in the prices rather than at the bottom in little writing. So your post is wavering dangerously close to manufacturing a mountain out of the proverbial molehill.

There was a time several years ago when it was pretty well expected to cop a surcharge on weekends etc. Then some businesses decided it was easier not to have the aggro and stopped the practice. Especially those that had negotiated a workplace agreement that averaged out wages over the week.

I don’t mind paying a surcharge when I know the establishment is forking out 25-100% extra in wages on weekends, however I do agree the menus should be upfront about it, ie a separate menu for surcharged food and drink.

When you are charged 10% MORE on a week end or public holiday, then YES you are being charged more.

To be honest, I don’t give a toss about Tossas charging 10%, because they’re not really the sort of food I’m into. I also understand that it costs more to pay staff on a week end. However I object on principle to any business knowingly acting illegally at the consumer’s expense.

nicnacvb nicnacvb 2:56 pm 15 Jun 10

Surely they all make a great deal more profit on weekends and public holidays because they have more customers. So this should cover their extra costs. They need to weigh up the benefit of opening on weekends (more customers, more profit) vs the higher costs of staffing. If they aren’t making enough profit to cover their costs they shouldn’t be open (same as during the week).

If they have a weekend menu and include the surcharges in the prices and you still eat there then you have agreed to the surcharge. But if they are still just adding ~10% to the bill at the end then they are breaking the law.

BimboGeek BimboGeek 1:08 pm 15 Jun 10

bd84 is right. Get your prices straight and leave it at that.

From a marketing perspective surcharges are a nightmare anyway, it’s easier to sell a higher price and discount than a lower price and surcharge, particularly to Australians who are wary of bait and switch and other Trade Practices Act protections.

Genie Genie 10:08 am 15 Jun 10

After not being informed of a “different” menu or any temp increase in prices I was forced to pay a 15% surcharge at Zeffirelli’s. I ordered over the phone using the online menu. I argued this point. Received no apology nothing since we rang up 3 times. First to see if they were open on the public holiday, 2nd to make our order and thirdly to question why it was $20 more than what it should add up to. After explaining everything to the manager, all we got was “we are complying with ACCC”. Yeah instore ! Not for takeaways. As we walked out he yelled at the staff that for future orders to tell them about a different menu.

Stupidly we walked away no receipt in hand showing higher prices, and wishing I pulled the moral compass of asking if they even paid their staff public holiday rates.

15% is a joke, is there a standard as to how much more they can charge ?
And whats the standard for take away ??

bd84 bd84 8:39 pm 14 Jun 10

What sort of incompetent business owner needs to add a surcharge to their prices on 12 odd days a year? One would think you would set your prices high enough to cover all costs all year round, with enough of a profit margin to give yourself a salary. Sounds like these people need to be banned from operating businesses if they can’t get something that simple right.

BenjaminL BenjaminL 7:59 pm 14 Jun 10

http://www.accc.gov.au/content/item.phtml?itemId=898953&nodeId=c8eb9f73b6ac405779d97027eec13d53&fn=News%20for%20Business-Component%20pricing-10.09_WEB.pdf

http://www.austlii.edu.au/au/legis/cth/consol_act/tpa1974149/s53c.html#single_price

Zeffirelli’s Belconnen are charging 15% surcharge and it doesn’t show on the takeaway menu. The family have just gone down to argue for the pickup meal, so I’ll be interested if they manage to get the meals without the surcharge

Felix the Cat Felix the Cat 7:25 pm 14 Jun 10

Why do restraunts and cafes get to charge 10% more just because it’s a public holiday? Other shops that choose to open don’t. I don’t pay 10% more for my loaf of bread and carton of milk at Woolies or 10% more for my tank of fuel so why do restraunts and cafes?

troll-sniffer troll-sniffer 6:29 pm 14 Jun 10

UrbanAdventure.org said :

Okay, here’s a scenario. I go into said restraunt, look at the menu, order something, eat, pay the bill, wander off and then realise there’s a 10% surcharge added. Can I go back and demand a refund of the 10%? Or having eaten at said restraunt several times on week ends, but not having retains recipts, how can I reciver my costs? For that matter, how can the community at large reciver those costs? Not that it is a big amount, but surely it would add up to a huge cost over time to all people who have eaten there. I mean if the business is knowngly acting illegaly, isn’t that fraud?
At the least they should be made to donate an averaged income from those illegal surcharges to a charity, such as the Vinnies winter appeal or similar. This is of course assuming that they did not have their week end menu.

The point is you haven’t actually paid any more, you’ve just not been given the correct menu with the surcharge in the prices rather than at the bottom in little writing. So your post is wavering dangerously close to manufacturing a mountain out of the proverbial molehill.

There was a time several years ago when it was pretty well expected to cop a surcharge on weekends etc. Then some businesses decided it was easier not to have the aggro and stopped the practice. Especially those that had negotiated a workplace agreement that averaged out wages over the week.

I don’t mind paying a surcharge when I know the establishment is forking out 25-100% extra in wages on weekends, however I do agree the menus should be upfront about it, ie a separate menu for surcharged food and drink.

Woody Mann-Caruso Woody Mann-Caruso 6:19 pm 14 Jun 10

The bakery at Goulburn had a sign on the door today: ‘10% public holiday surcharge on all items. We pay our staff public holiday rates.’

So I order.

‘That’s $17.65 thanks.’
‘You mean $16.05.’
‘No, there’s a 10% holiday surcharge.’
‘Can I have a tax invoice showing the surcharge?’
‘Erm…wait a minute.’
*pssstt pspstspspst*
‘I’ll just run your EFT through now…and here’s your invoice.’

Wonder of wonders. $16.05, no surcharge.

BenjaminL BenjaminL 6:14 pm 14 Jun 10

Pizza shops have a 10% surcharge for public holidays..

I wonder if this also applies to corkage and cakeage ? I dont mind paying a few dollars for a bottle of wine, but some places charge per person. I remember getting charged for 6 people to drink 1 bottle of wine, and 3 of them were children, We only had the one glass FOR ME. JOKE

glennmatthew glennmatthew 4:42 pm 14 Jun 10

UrbanAdventure.org said :

I mean if the business is knowngly acting illegaly, isn’t that fraud?

I’m no lawyer, though you did willingly engage in the transaction thus accepting the contract offered. I doubt you’d have recourse. The problem is misrepresentation of price by false and deceptive advertising, the contract itself probably wouldn’t be illegal.

glennmatthew glennmatthew 4:39 pm 14 Jun 10

First establishment I walked into, and surely enough I paid $4.40 for my $4 coffee. This is the place South Goulburn exit, on the way up to McDonald’s, Caltex across the road.

Trapper’s Bakery of Goulburn: Public Holiday Surchage; 10% on all products; we pay out staff public holiday rates. I took a picture for everyone else’s info.

UrbanAdventure.org UrbanAdventure.org 12:02 pm 14 Jun 10

Okay, here’s a scenario. I go into said restraunt, look at the menu, order something, eat, pay the bill, wander off and then realise there’s a 10% surcharge added. Can I go back and demand a refund of the 10%? Or having eaten at said restraunt several times on week ends, but not having retains recipts, how can I reciver my costs? For that matter, how can the community at large reciver those costs? Not that it is a big amount, but surely it would add up to a huge cost over time to all people who have eaten there. I mean if the business is knowngly acting illegaly, isn’t that fraud?
At the least they should be made to donate an averaged income from those illegal surcharges to a charity, such as the Vinnies winter appeal or similar. This is of course assuming that they did not have their week end menu.

vg vg 11:39 am 14 Jun 10

Just got back from Coffee Club, Gungahlin, where I was charged a $2 surcharge on 2 coffees. I told them it was illegal and the 2 16yos behind the counter couldn’t conceive the idea. The comment was ‘we wouldn’t do it if it wasn’t allowed’.

I will be calling the manager tomorrow and asking them why I shouldn’t refer it to the ACCC.

pptvb pptvb 9:33 am 14 Jun 10

vg said :

Might pop into Tosolinis and drop a grogan on a table……..because no-one told me not to

Don’t forget that extra 20%

Davo111 Davo111 2:13 am 14 Jun 10

So they can just print off a new paper menu for that weekend? sounds fine to me.

Perhaps pubs and bars should be forced to have a proper drinks price list. Thats something i’d like to see the ACCC enforce.

CanberraCreative CanberraCreative 11:39 pm 13 Jun 10

I didn’t know about the surcharge until recently. I can name a dozen restaurants and cafes who change a 10% Sunday and Holiday surcharge so Tosolinis isn’t alone.

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