The Commonwealth Parliament has made a number changes to the key national labour law, the Fair Work Act 2009 (“Fair Work Act”), aimed specifically at protecting employees the Government describes as Australia’s ‘vulnerable workers’.
These changes have been made in direct response to significant wage underpayment issues which have unfortunately impacted many Australian-based 7-Eleven franchises. In fact, according to 7-Eleven’s own dedicated website, www. wagerepaymentprogram.com.au, more than A$150,000,000 in underpaid wages have been identified to date.
All employers – including those who genuinely believe they are fully-compliant with the Fair Work Act – should have regard to the important changes these new amendments have made to the Fair Work Act, including:
- significant increases in the maximum penalties which can be imposed for so-called ‘serious contraventions’ (i.e. conduct which was deliberate and which formed part of a systematic pattern relating to one or more people);
- new powers to hold ‘responsible franchisor entities’ and ‘holding companies’ responsible for particular breaches of the Fair Work Act by businesses within their networks (such as franchisees over which the franchisor exercises a significant degree of influence or control) where they should reasonably have been aware of the contraventions and could reasonably have taken action to prevent them;
- expressly prohibiting employers from directly or indirectly requiring an employee to pay them (or any other person) an amount out of their pay where the requirement is unreasonable and the payment primarily benefits the employer (e.g. so-called ‘cash-back’ schemes whereby unscrupulous employers paid employees their full entitlements but then demanded the return of some or all of the funds in order for the employee to keep their job);
- an expansion of the Fair Work Ombudsman’s (“FWO” – Australia’s national employment regulator) evidence-gathering powers; and
- an express prohibition against the giving of false or misleading documents or records – such as time and wages records and pay slips – to the FWO, an Inspector or other specified official, where the giver knows the records are false or misleading.
Furthermore, employers who are accused of underpaying workers and who have failed to issue compliant payslips will now bear the onus of proving that full entitlements were, in fact, paid.
While these new provisions are clearly designed to protect employees and encourage employer compliance with Australian employment laws, Harmers Workplace Lawyers encourages employers to review their current practices and obtain expert advice if they have any concerns regarding potential non-compliance.