The vulnerable workers Act is now law. Are you ready?

The vulnerable workers Act is now law. Are you ready?

  • Are you a franchisor?
  • Or a franchisee?
  • Does your company have subsidiaries?

If you answered “yes” you are in the sights of new laws which commenced on Friday 15 September. Even if you answered “no”, you should keep reading, as the higher penalties relating to payslip and record keeping offences can still apply to you.

Fair Work Amendment (Protecting Vulnerable Workers) Act 2017

Franchisors and holding companies are now responsible if their franchisees or subsidiaries underpay their staff if they knew or ought to have reasonably known that this was happening and failed to take reasonable steps to prevent it. These “head office” provisions will take effect from 27 October, according to the Fair Work Ombudsman Natalie James. It’s not just franchisors and franchisees – all employers must pay their workers correctly and must keep records of all the payments they make. Big fines are now in play if you fail to do so: up to $126,000 for individuals and up to $630,000 for corporations. So check you comply with the pay and employee entitlements under your Award, or enterprise agreement if you have one.

If you are unable to provide pay slips or employment records, you will automatically be guilty of breaching the record keeping requirements unless you have a “reasonable excuse”.

Accountants, HR consultants, or anyone who is a third-party to a serious contravention of the Fair Work Act are also in the frame. Serious contraventions will usually involve regular and systematic underpayments where it is difficult to argue that it was inadvertent.

It’s not enough to say you didn’t know

For franchisors and parent/holding companies, the new laws expressly make you liable for underpayments if you ought to have reasonably known your subsidiary or franchisee was not paying correctly. While this responsibility is supposed to only apply if you have a “significant degree of influence or control” over your business network, it’s clear the Fair Work Ombudsman will be arguing that franchisors have this influence and control by the very nature of their business model.

What else do you have to be wary of?

You are expressly prohibited under the new legislation from unreasonably requiring your employees to make payments to you (for example by demanding employees pay back some of their wages in cash, so that wages appear to be correct “on the books”). The Ombudsman will also be able to make you produce documents and answer questions about suspected underpayments and exploitation of vulnerable workers, although it will have to get the permission of a tribunal before it does so.

You must not obstruct a Fair Work inspector who is investigating you, nor must you give them false or misleading information or documents.

Written By Alison Williams on 18th Sept 2017

Couple fined over teen worker’s wages

Business couple fined over teen worker’s wages; lack of meal, rest and toilet breaks

 

11 November 2014

Business operators who underpaid a teenage sales assistant and failed to provide her with sufficient meal, rest and toilet breaks have been fined tens of thousands of dollars following legal action by the Fair Work Ombudsman.

The employee was short-changed more than $56,000, leaving her unable to support herself financially and forced to rely on others to make ends meet.

The Federal Circuit Court in Melbourne has penalised Greenvale couple Fardin and Beverly Soleimani almost $40,000 over the treatment of the junior employee. The couple operate a number of building and construction clothing retail outlets under the name Bad Workwear.

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For the record, good records are essential

For the record, good records are essential

For the record, good records are essential

27 May 2014

 

Good Records (4)

The Fair Work Ombudsman has issued a reminder to businesses of the importance of maintaining proper employment records.

Fair Work inspectors continue to see employers failing to keep correct records or issuing pay slips that contain the required information.

In a bid to raise awareness of record-keeping obligations, site visits are planned to 350 businesses throughout NSW, Victoria, Queensland, Tasmania and the ACT.

The face-to-face visits are aimed at educating employers about their responsibilities and how the Fair Work Ombudsman can assist them to comply with workplace laws.

Inadequate records hamper the ability of Fair Work inspectors to determine if employees are being paid correctly if a dispute arises over wages.

In the past, the Agency has taken legal action against some employers who did not keep proper records and who were suspected of underpaying their staff.

Employer records and pay slips

Record-keeping is a requirement of the Fair Work Act 2009. Employers are required to keep accurate and complete records and issue pay slips to ensure employees receive their correct wages and entitlements – for a fact sheet on Employer Records and payslips click here Employer-obligations

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Are you ready to be Audited????

The Fair Work Ombudsman is targeting motor vehicle dealerships across New South Wales, Queensland and the ACT over the next five months as part of a new education and compliance campaign to ensure staff are receiving their full entitlements.

The campaign will include audits of about 460 businesses selling cars, motorcycles, caravans and other types of motor vehicles at locations, including the Gold Coast and NSW

Fair Work Inspectors will randomly select employers for audit and check they are paying workers in-line with minimum wage, penalty and overtime rates and are complying with record-keeping and pay slip obligations.

Inspectors will also check that written agreements outlining employee entitlements are in place for any salespeople on commission-based pay arrangements.

Want to stay one step ahead of The Fair Work Inspectors contact us today to book in your

12-Step Employment Compliance & Performance Check

To help see if you’re compliant and setup to maximise performance from your employees I’ve used my 7 years’ experience to develop a detailed, 3 hour, 12-Step Employment Compliance & Performance Check.

I’ll come out to your business and complete a detailed review of your records, policies, procedures, review your management processes and talk to your staff to get their feedback.

From this you’ll get a detailed action plan as to what you need to do to be compliant and to maximise performance from your employees, as well as find out what your employees really think.

This service is charged at $850 – please call to book in your check today as bookings are limited

So Call 0452 471 960 now to book or to find out more about how we can help …

 

Minimum period of employment, absences and unfair dismissal

Minimum period of employment, absences and unfair dismissal

Which absences from work count (or don’t count) as service, with respect to the minimum period of employment under federal unfair dismissal laws?

There are a number of preliminary matters that must be clarified before Fair Work Australia (FWA), before an application relating to unfair dismissal can be heard. One of these matters relates to the minimum period of employment that must be served by the applicant with the employer. To access unfair dismissal laws, an employee whose employer employs 15 employees or more must have served at least six months of employment with the employer or, in the case of an employee whose employer employs fewer than 15 employees, 12 months of service with the employer. While the Fair Work Act 2009 provides a definition of service and continuous service for the purposes of the Act, which absences from work, and what types of employment, count as service with respect to the minimum period of employment, has been the subject of some conjecture, with a number of matters being determined by FWA on this issue. A case before FWA regarding an employee receiving income protection payments from their superannuation fund, reported recently by WorkplaceInfo, illustrates a circumstance that required clarification by the tribunal regarding the meaning of service in relation to the minimum period of employment.

Number of employees – In determining whether the employer employs 15 employees or more at a particular time, all employees (including casuals employed on a regular and systematic basis) employed at that time are to be counted as well as the employee(s) being dismissed, but excluding a casual employee who has not been employed on a regular and systematic basis.

Associated entities

As a jurisdictional point, an issue for FWA to determine is whether or not the employer has within its company structure any associated entities and, if it does, whether those associated entities employ any persons who should be included in determining the number of employees employed by the employer at the particular time.

FWA determined that that the question of ‚ ≤associated entities’ is contemplated by the definition of ‚ ≤control’ in the Cth Corporations Act 2001 (s50AA). Control means direction or influence over the operations of the associated entity. See: A v Condamine Catchment Natural Resource Management Corporation Ltd t/a Condamine Alliance [2010] FWA 5374.

Period of employment – The minimum period of 6 months or 12 months (as the case may be) must be completed immediately before the beginning of the corresponding day of the sixth month (or twelfth month) following the date on which the employee’s employment commenced. For example, an employee who commenced employment on 26 February and is terminated at 9 am on 25 August has not completed 6 months service and is unable to claim unfair dismissal. See: P v Manheim Fowles Pty Ltd [2010] FWA 28.

Casual employment – The Fair Work Act (s384(2)) states that a period of service as a casual employee does not count towards the employee’s period of employment unless:

  • the employment as a casual employee was on a regular and systematic basis; and
  • during the period of service as a casual employee, the employee had an expectation of continuing employment by the employer on a regular and systematic basis.

This provision also needs to be read in conjunction with the general meaning of ‚ ≤service’ and ‚ ≤continuous service’ under s22 of the Act. See: P v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic [2010] FWA 2078.

Unpaid leave/unpaid authorised absence – Under the Fair Work Act, an employee’s absence on unpaid leave or unpaid authorised absence does not count as service, except in certain circumstances. However, FWA has had to determine whether certain unpaid absences from work count as service for the purpose of the minimum period of employment.

Absence on workers compensation

FWA determined that an absence on workers compensation is to be regarded as ‚ ≤paid authorised absence’ under the Fair Work Act (s22), regarding an absence which counts as service for the purpose of determining whether an employee has completed the appropriate minimum period of employment. See: WorkPac Pty Ltd v B [2012] FWAFB 3206.

Absence while receiving income protection payments

FWA determined that the period where the applicant was absent due to illness during which she was not entitled to paid leave must be regarded as a period of unpaid leave or unpaid authorised absence, even though the employee was receiving income protection insurance payments from their superannuation fund.

There was no legal obligation such as under a modern award, enterprise agreement or other employment-related legislation that required income protection insurance payments to be made to the applicant; therefore, the absence is considered unpaid leave or unpaid authorised absence. See: LM v Standard & Poor’s (Australia) Pty Ltd [2012] FWA 9634. Accident Compensation ‚ Æ Victoria

FWA determined in an unfair dismissal matter that an employee absent from work due to injuries sustained in a motor vehicle accident and receiving payments directly from the Transport Accident Commission (Vic) during this absence was deemed to have been on unpaid leave or unpaid authorised absence and, consequently, this period was not counted as service when considering the minimum period of employment. The employer in this case was not making any payments to the employee either directly or indirectly. See: W v Toni and Guy Port Melbourne Pty Ltd [2010] FWA 4540.

Unpaid pre-employment training – A person is not considered to be an employee until an offer by the employer and an acceptance of that offer by the employee has occurred. The period of employment commences when an employment contract exists between the employer and employee, not from when the person commences a pre-employment unpaid training course. For example, FWA determined that a training course advertisement that represented the guarantee of a permanent part-time position if the person successfully completed the training course and obtained a casino employee licence is not an intention that an employment arrangement was automatically created immediately those preconditions to employment were met. Rather it was a guarantee of an offer of employment, provided those preconditions were met. See: C v SkyCity Adelaide Pty Ltd [2010] FWA 9259; [2011] FWAFB 955.

Termination in lieu of notice – An employee who is terminated in lieu of notice within (say) one week of completing the relevant minimum period of employment does not qualify for unfair dismissal.

The employee must have been employed for the minimum period of employment. Provided the payment in lieu of notice is not inconsistent with the applicable industrial instrument or the National Employment Standards (NES), it cannot be deemed the employment continues beyond the time of termination specified by the employer. See: P v Manheim Fowles Pty Ltd [2010] FWA 28.

Overseas employment with same employer – FWA determined there is nothing in the Fair Work Act that would prevent time worked overseas by an employee of an Australian national system employer counting towards service for the purposes of the minimum period of employment.

An applicant who commenced employment with the employer in Pakistan and arrived in Australia on a 457 visa had a total period of employment exceeding the relevant minimum period (6 months) if their employment in Pakistan was included in the period of employment. Consequently, FWA had jurisdiction to hear the unfair dismissal application. See: A v Industries Services Training [2011] FWA 9177.

Sourced from www.workplaceinfo.com.au

 

$20,000 penalty for underpayment of two young apprentice chefs

The below Media Release from Fairwork.gov.au website highlights the importance of getting you payroll right. Think that you won’t get caught, well think again and prepare to have to pay-up. At Fresh HR Insights we believe that it is far better to be proactive and make sure that you have everything in place. That is why we offer a robust, flexiable & cost-effective outsourced payroll solution. Contact us today for more details

$20,000 penalty for underpayment of two young apprentice chefs

23 August 2012

The former owner-operator of a Queensland delicatessen has been fined $19,965 for underpaying two young apprentice chefs following an investigation and prosecution by the Fair Work Ombudsman.

The Federal Magistrates Court in Brisbane has imposed the penalty against Christopher Meade Jones, who formerly owned and ran the ‚ ≤Fed Up Deli’ at the corner of Thorn and Limestone streets, Ipswich.

Federal Magistrate Michael Jarrett found Jones’ business underpaid two full-time apprentice chefs $15,007 and $5471 respectively between October, 2008 and March, 2010.

The staff were underpaid wages and annual leave entitlements.

Federal Magistrate Jarrett ordered that Jones pay his fine to the two apprentices, both males in their 20s, to partially rectify the underpayments.

FM Jarrett said the underpayments represented a disregard for statutory obligations and the loss to the employees was significant.

The law should mark its disapproval of the conduct and set a penalty which serves as a warning to others,‚ π he said.

Steps must be taken by employers of all sizes to properly ascertain and comply with minimum entitlements.

Compliance should not be seen as the bastion of the large employer with human resources staff and advisory consultants.‚ π

The Fair Work Ombudsman initially commenced proceedings against Jones’ private company Fed Up Deli & Catering Pty Ltd, but it went into liquidation earlier this year, preventing the action from continuing.