Lookout for the Fair Work Ombudsman and the fines which can apply

Pursuant to the Fair Work Act 2009 (Cth) (the Act), Fair Work Australia has the power to appoint Inspectors from the Fair Work Ombudsman to investigate, monitor and promote employers’ compliance with the Act and other workplace legislation. The Act also provides steps which can be taken by the Fair Work Ombudsman to enforce an Inspector’s decision via the Federal Court of Australia. Generally, the Fair Work Inspectors investigate matters such as, but not limited to:

• underpayments of wages and entitlements;
• failure to provide pay slips; and
• failure to maintain record-keeping obligations.

In a recent decision, the Fair Work Ombudsman proceeded to take legal action against The Henna Group Pty Ltd in the Federal Magistrates Court. It was alleged by the Fair Work Ombudsman that The Henna Group had a history of underpaying staff. In particular, it was held that The Henna Group had contravened:

• s45 of the Act as it had failed to pay its employees in accordance with the Modern Award;
• s 323(1) of the Act as it had failed to pay its employees in a method and frequency prescribed in s 323(2) of the Act;
• s 90(2) of the Act as it had failed to pay its employees accrued but untaken annual leave entitlements after its employees’ cessation of employment;
• s 536(1) of the Act as it had failed to provide its employees payslips within one working day of paying the employee; and
• s 117(2) of the Act as it had failed to provide 1 week notice pay or in lieu thereof upon the termination of an employee

As a consequence of the abovementioned contraventions, The Henna Group was ordered to pay $33,000.00 for each contravention amounting to $165,000.00, plus the underpayment of wages and entitlements which were approximately $16,000.00.

In furtherance to the above, the Federal Magistrates Court held that there was a history which indicated there was a deliberate disregard of industrial obligations and therefore the director and senior manager were taken to have contravened the Act in their own capacity resulting in each individual being fined a further $30,000.00.

Tips

• The Federal Magistrates Court has begun to place more emphasis on enforcing Fair Work Ombudsman findings and therefore an employer, director or senior member of staff should have careful regard to their industrial obligations.

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This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.