The Federal Circuit Court has sent a clear message to employers about the importance of award compliance and proper record keeping. The court recently imposed a record penalty of $644,000 on a Melbourne fruit market for various award contraventions, and a further penalty of $16,020 on the owner for his involvement in those contraventions.
Recently, TSheets, a provider of GPS mobile tracking apps, shared their research into the use of GPS tracking by employers with us. Their survey findings included that:
- 43% of workers were given less than 14 days' notice before GPS tracking was introduced;
- 39% of workers were given notice verbally; and
- One in five vehicles with GPS units did not display a sign informing the driver that GPS tracking was occurring.
This research is a timely reminder for NSW employers to ensure they comply with the Workplace Surveillance Act 2005, including with respect to GPS tracking.
The Fair Work Commission has released a draft model casual conversion clause as part of its four yearly modern award review process. The draft clause is to be included in 85 modern awards that do not currently include casual conversion clauses and if approved in its current form, will allow regular casual employees to request that their employment be converted to part time or full time employment.
Key features of the draft clause include:
Employers should note the following changes that apply from 1 July 2017:
In a timely reminder to employers about record keeping obligations, the Federal Court has penalised two employers and their director over $37,000 for failing to keep proper employee records. In that case, Justice Barker said:
“the contraventions in this case should not be seen as mere contraventions of some lower order. The failure to maintain records truly strikes at the very foundation of the regulatory scheme which is designed to ensure that employees are paid their legal entitlements”.
The Fair Work Act requires that employers keep certain employment related records. These records must be kept for seven years and must be in English, legible and readily available to an inspector.
The National Minimum Wage decision for 2017 was handed down by the Expert Panel of the Fair Work Commission (FWC) on 6 June 2017, based on actual and forecasted economic and social data.
The Fair Work Ombudsman (FWO) announced yesterday that it has commenced proceedings against Her Fashion Box Pty Ltd, a fashion industry start up that appeared on the reality TV show, ‘Shark Tank’. The FWO is pursuing Her Fashion Box and its sole director for running an unpaid internship program that resulted in at least three workers being underpaid around $40,000. Two of the interns were engaged as graphic designers and the third was engaged as a full time brand partnership manager. The FWO alleges that each intern was engaged as an employee to perform productive work in the business and was therefore entitled to receive minimum award salary and entitlements.
The law around offering work experience and interns is clear.
In a decision handed down on 15 May 2017, the FWC found that a former employee of Jones Lang La Salle (Vic) Pty Ltd, who was made redundant, was covered by the Retail Estate Industry Award 2010 (“Award”) notwithstanding the employee’s title as “Regional Director – Capital Markets” and that his income (which was not disclosed) was well in excess of the high income threshold of $138900. The effect of the decision is that the former employee, Mr Kaufman, can proceed with an unfair dismissal application alleging his redundancy was not “genuine” within the terms of the Fair Work Act 2009.
In her address to the Australian Human Resources Institute in 2016, the Fair Work Ombudsman, Natalie James, said “there must be clear consequences for those in trusted positions, those whose advice is relied upon and those with the responsibility to know better who play a part in undermining workplace laws”. Consistent with this warning, the Fair Work Ombudsman has used the accessorial liability provisions of the Fair Work Act to proceed against directors, managers, human resources advisers and franchisors. Last month, the Fair Work Ombudsman tested the limits of those provisions even further and successfully obtained a declaration that an accounting firm was liable for award contraventions by its client.
A brothel and its sole director have been ordered to pay a former receptionist compensation of just under $100,000 and penalties of over $75,000 after subjecting the receptionist to unlawful adverse action and failing to pay award entitlements. The Federal Circuit Court accepted that the brothel’s sole director was knowingly involved in the breaches and ordered that he be jointly and severally liable for the compensation awarded as well as personally responsible for part of the penalty.