Posts: Underpayment

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Underpayment

Court orders jail term for owner-operator who failed to comply with orders resulting from Fair Work action

Jailhouse Rock

In June 2015, Judge Jarrett of the Federal Circuit Court of Australia found that a Northern Queensland-based tour company and its owner had underpaid five employees and contravened the Fair Work Act 2009 (Cth).

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Workplace bullying and reasonable management action

Just Managing

Workplace bullying can be extremely serious and should not be tolerated by employers.

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Dentist penalised for non-compliance and personally ordered to rectify underpayments

Brace yourself for consequences

The Fair Work Ombudsman (FWO) is responsible for ensuring compliance with workplace laws.

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How a region banded together to improve employment standards

Group Effort

No employer operates in a silo – all employers operate in complex systems of interrelated stakeholders including employees, customers, other businesses, and regulators who enforce the laws that apply to the employer and their business.

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$200,000 penalty imposed for adverse action taken against employees underpaid because of their race

Losing on penalties

Fair Work Ombudsman’s (FWO’s) successful prosecution of a hotel operator and its owner who took adverse action against two employees because of their Chinese race and Malaysian extraction.

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Why the term ‘hush money’ is misleading

Hush Hush, Hush!

Settlement agreements, terms of settlement, deeds of release or release and undertakings are all terms which are used interchangeably to refer to the binding and confidential agreements.

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The dos and do-nuts of business growth and expansion

The dos and do-nuts

It is estimated that there is over $70,000 in unpaid wages owing to employees, and many of those are international workers on visas who are not eligible for the government-funded Fair Entitlements Guarantee scheme.

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“Casual” employee entitled to annual leave after 15 years of service

Let’s keep it casual

Issues arise when casual employees are engaged on a long-term basis, have regular and systematic hours and a reasonable expectation of ongoing employment.

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Understanding the Modern Award system

Short changed?

Since the introduction of the modern award system in 2010 many employers have found it difficult to understand the complex requirements. In fact, the Fair Work Ombudsman reported that for the 2013-2014 financial year it recovered more than $23 million for 15,483 workers.

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Service station underpayments signals Court’s approach to accessorial liability of Managers and Directors

It will no longer be accepted that managers or others “involved in” a contravention, such as underpayments, are not liable where they had knowledge or should have had knowledge of the underpayment

The Federal Circuit Court of Australia recently found a director and two managers of a company which operated a Victorian BP Service station personally liable for the underpayment of wages and breaches of the Fair Work Act 2009.

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Labour Supply Chain and Underpayments

Chain Reaction

Department store Myer has come under increased pressure from the Fair Work Ombudsman (FWO) after it declined to enter into a voluntary compliance deed with the regulator.

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Former Director still liable to pay penalties with his new wages

FWO First

The Director of Sona Peaks Pty Ltd (in liquidation) which traded as an Indian food restaurant in Victoria was recently ordered by the Federal Circuit Court of Australia to pay a total of $26,715 (plus interest) by way of an Attachment of Earnings Order to his wages with his new employer Metro Trains Melbourne Pty Ltd.

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Massage parlour docks workers pay for lacking “passion”

Passion Pop?

In the recent Federal Circuit Court of Australia’s decision in Fair Work Ombudsman v Lu’s Healthcare Pty Ltd & Anor [2016] FCCA 506 (Massage Case) massage parlours were warned that failure to comply with the obligations under modern awards and applicable employment laws will not be tolerated.

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Celebrity Fashion and Wedding Dress Designer forced into liquidation due to unpaid employee entitlements

Dressing Down

It has recently been reported that celebrity fashion designer, Johanna Johnson who has designed gowns for Madonna and Christina Hendricks is being pursued in court by the Australian Taxation Office (ATO) and former employees for more than $1 million. The amount includes at least $300,000 in owed superannuation that had not been paid to employees for many years.

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Re-offending directors and their cleaning company to pay hefty penalties for breaching FW Act

Time after time

In a recent Federal Circuit Court decision, Fair Work Ombudsman v Commercial and Residential Cleaning Group Pty Ltd & Ors [2017] FCCA 2838, Judge Lucev ordered significant penalties against a Perth cleaning company and two of its directors.

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The Fair Work Ombudsman and Enforceable Undertakings

I Promised You a Miracle!

The Fair Work Ombudsman (FWO) continues to successfully prosecute and investigate businesses that exploit workers from overseas. In a recent investigation of a Perth restaurant, the FWO found that two overseas workers had been underpaid by their employer to the tune of $13,822. After admitting to a number of contraventions, the employer agreed to enter into an enforceable undertaking with the FWO to make good.

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Human resources manager ordered to pay $21,760 for her participation in underpayments and falsifying records

Look what you made me do

In recent years, the Fair Work Ombudsman has made it clear that it is prepared to prosecute not only employers, but also individuals and third parties ‘involved in’ contraventions of the Fair Work Act 2009 (Cth) (FW Act). Most recently, the FWO was successful in its prosecution of a Chinese restaurant as well as its sole director, its human resources manager and its store manager for various breaches of the FW Act, which resulted in 85 employees being underpaid a total of $583,688.68 over a 16 month period.

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Airtasker and workers’ rights

Up in the air

Airtasker is the most recent operator in the “gig” economy facing allegations of sham contracting and underpayment for work performed.

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Employee given green light to pursue employer for underpayment

The fine print

The Western Australian Industrial Magistrates Court’s (the Court) decision in Simone Jade Stewart v Next Residential Pty Ltd [2016] WAIRC 00756 (16 September 2016) (Stewart’s Case) is a warning for employers to carefully review their current employment contracts, especially for award covered employees who are employed on an “annual salary” in accordance with an award term.

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FWO crackdown on piecework rates

Pick and pay

Last month, the Fair Work Ombudsman (FWO) launched unprecedented legal action in the Federal Court against a large mushroom farm that paid hundreds of its employees based on how much they picked at a rate of 60 to 80 cents per kilogram. It is alleged that the employees had been exploited and underpaid almost $650,000 in eight months.

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Cleaners misclassified as independent contractors back paid $1.9 million

Shamming it up

Earlier this month, the Fair Work Ombudsman (FWO) announced that cleaners working at hotels run by Oaks Hotels & Resorts Limited (Oaks), a major operator of more than 43 properties across Australia, have been back paid a total of $1.9 million.

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Woolworths enters compliance deed to eliminate trolley collector exploitation

Top of the food (supply) chain

Earlier this year, we told the tale of the of the trolley collectors in Once upon a trolley – an ongoing saga involving underpayments, vulnerable workers and the Fair Work Ombudsman’s (FWO’s) scrutiny of labour supply chains. In that blog, we focussed on an enforceable undertaking that involved Coles supermarkets and the FWO. Now, Woolworths have come to the trolley collectors’ party, this time in the form of a Proactive Compliance Deed with the FWO.

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FWO prosecutes hotel owner for underpaying employees because of race

The INNS and outs of adverse action

In its first ever underpayment prosecution relying on the race discrimination provisions of the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Ombudsman has successfully established that two employees of Chinese descent and Malaysian extraction were underpaid because of their race and/or national extraction.

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Labour-hire operator gets referral to public prosecutor for non-payment of wages

New car, zero interest (in employee’s wages)

In most cases, a finding of deliberate non-compliance by a business will result in the imposition of a hefty fine by a court (a pecuniary penalty order). It is also not uncommon to see courts issue other orders such as requiring non-compliant businesses to undergo external audits or requiring managers to undergo specific training. The Federal Circuit Court of Australia has recently utilised the wide scope of this power in Fair Work Ombudsman v Greenan (No. 2) [2017] FCCA 2059.

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FWO seeks penalties against a restaurant that deliberately disregarded advice and underpaid employees

“All spaghetti and no meatballs”

It is no secret that the Fair Work Ombudsman (FWO) has been cracking down on employers breaching their employment obligations under the Fair Work Act 2009 (Cth) (the FW Act) and exploiting vulnerable workers in order to gain financial and competitive advantage. Indeed, the Federal Government is very close to passing a Bill through Parliament that will not only impose much harsher penalties on employers but will also increase the FWO’s powers to investigate this type of behaviour.

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An induction on deductions from employees’ pay

An induction on deductions

Student accommodation provider UniLodge faced reports this month that it deducted a total amount of $74,336.00 for “rent” over the period October 2011 to April 2016 from the combined salary of two of its onsite caretakers.

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Cleaning company engaged in sham contracting ordered to pay over $660,000

It’s a crying sham

Sham contracting and the exploitation of vulnerable workers have been hot topics recently following a series of high profile cases including the likes of 7Eleven, Baiada Poultry and Quest Serviced Apartments. The Fair Work Ombudsman (FWO) continues its crusade, investigating and litigating claims related to worker exploitation in supply chain arrangements.

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The cautionary tale of trolley collectors and supermarket supply chains

Once upon a trolley...

The plight of trolley collectors has been a focus of the Fair Work Ombudsman (FWO) for many years, and the Australian Industrial Relations Commission before that. In 2011, the FWO shifted its focus to the end users of the trolley collecting supply chain – big supermarkets.

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Why businesses should have compliant employment and payroll processes

System Alert

Recenty, MAdE Establishment Group (the Group) and its celebrity chef director and founder went public with a mea culpa that it underpaid the wages of at least 162 employees across its Melbourne restaurants.

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FWO sends out warnings about payment and pay methods

Working hard for the money

The FWO has stressed that workers (i.e. labour hire and employees) must be paid the correct wage in accordance with the Horticulture Award. It is likely that the FWO will be closely monitoring the horticulture industry (and other industries where visa holders are predominately employed) given the high incidences of exploitation that have recently been reported in the media.

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Have you got “the right stuff” when it comes to super?

Superannuation payments and calculations can be a tricky thing for employers, of all sizes, to get right.

Superannuation payments and calculations can be a tricky thing for employers, of all sizes, to get right. These challenges came to light last month when the Financial Sector Union of Australia (FSU) claimed that 7,000 part time staff did not receive their full super entitlements from the Commonwealth Bank of Australia (CBA), with claims dating as far back as 2009.

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Employer fined nearly $533,000 in addition to back payment for cash back scheme

Cash me outside

The Federal Circuit Court of Australia’s decision in Fair Work Ombudsman v Rubee Enterprises Pty Ltd & Anor [2016] FCCA 3456 (Rubee’s Case) has penalised a cafe in Albury NSW $532,900 for exploiting five foreign employees. This is the largest fine ever ordered as a result of legal action by the Fair Work Ombudsman (FWO).

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FroYo Master Franchisor Penalised for Involvement in Workplace Law Contraventions

Significant Decision Case Study

This is the first decision in which the FWO has secured penalties against a master franchisor for its involvement in contraventions of the FW Act.

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Victorian Government Explores Licensing System for Labour Hire Companies

Licence to Labour Hire

Underpayment and sham contracting in the labour supply chain has been the focus of much of the Fair Work Ombudsman’s (FWO) and the media’s attention this year. The FWO has conducted a number of campaigns and inquiries into industries where the use of labour hire and independent contractors is prevalent. In some circumstances, it has taken legal action where workers have been underpaid minimum wages and conditions.

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