Employee record obligations – are you compliant?

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”[1].

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.

Internships - paid or unpaid?

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. 

FWC finds high earning employee was award covered and could bring unfair dismissal case

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. 

Accountant held liable for client’s award breaches

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.

Adverse action and award compliance - the cost of getting it wrong

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. 

The high cost of sexual harassment

A young woman was recently awarded over $300,000 after a hotel caretaker entered her bedroom at night while he was naked, touched her thigh and groin without consent and attempted to remove her underpants. The decision continues the recent trend for courts and tribunals to award substantial damages for sexual harassment and is a timely reminder for employers to take steps to prevent sexual harassment and discrimination in the workplace.