Surcharges to cover weekend and public holiday penalty rates are perfectly legal — but the ACCC has already fined two restaurant groups for menus that buried the disclosure.
Surcharges Are Legal — Disclosure Is the Entire Issue
Under the Australian Consumer Law (ACL), a restaurant is free to apply a surcharge on Sundays and public holidays to help offset the higher penalty rates it must pay staff on those days. The ACL doesn't prohibit the surcharge itself — Section 18 (misleading or deceptive conduct) and Section 29 (false or misleading representations about price) are what create the legal risk, and both are triggered by inadequate disclosure, not by the surcharge existing.
The Precise Wording the ACCC Requires
The ACCC's guidance is specific, not general: your menu must include the exact statement "a surcharge of [percentage] applies on [the specified day or days]," and this statement must be displayed at least as prominently as the most prominent price shown on the menu. If your menu doesn't list prices at all, the surcharge statement must still be conspicuous and clearly visible to anyone reading it. This applies to food and beverage pricing alike, and covers physical menus, menu boards, and digital or QR-code menus equally.
A restaurant does not need to publish a separate menu with surcharge-inclusive prices, or maintain a separate price column — the single disclosure statement, prominently placed, satisfies the requirement.
The Cost of Getting It Wrong
The ACCC has already taken Federal Court action against restaurants for exactly this failure: two operators — trading as Georges Bar and Grill and Steersons Steakhouse — were each ordered to pay a $13,200 penalty after their menus relied on a vague qualification rather than telling customers the full price they'd actually pay on a Sunday or public holiday. The case illustrates that a technically-present but inadequately prominent disclosure is treated the same as no disclosure at all.
State-Level Consumer Affairs Bodies Reinforce the Same Rule
Consumer Affairs Victoria, the Queensland Office of Fair Trading, and WA Consumer Protection all apply guidance consistent with the ACCC's national position — meaning this isn't a rule that varies meaningfully state to state the way some other hospitality regulations do. Customers must be made aware of a weekend or public holiday surcharge before they decide to order, not after the bill arrives.
Compliance Checklist
- Add the exact required wording — "a surcharge of [X%] applies on [specified days]" — to every version of your menu: print, board, and digital/QR.
- Make the surcharge statement at least as visually prominent as your most prominent listed price — not a footnote in smaller type.
- Display the same disclosure at the point of entry or booking if you take reservations, not only on the menu itself.
- Train front-of-house staff to confirm the surcharge verbally if a customer asks, rather than deflecting the question.
- Review your menu any time your surcharge percentage changes, since an outdated percentage is itself a misleading representation.
Related Kibbo Tools
Sources
- Australian Competition and Consumer Commission — Restaurant menus misled consumers. accc.gov.au
- Consumer Protection Western Australia — Paying extra? What to know about surcharges. consumerprotection.wa.gov.au