In 2016, a grocery store employed two new staff members, both of whom were in Australia on working visas. The first was employed for a period of three months and twelve days and was paid $12 an hour. The second employee was employed for a total of two months and fifteen days and was initially paid $10 an hour, however after complaining about the rate of pay, she was paid $11 an hour.

Neither employee was made aware of, or received, any personal or annual leave entitlement or accruals and never received a payslip.

During the proceedings at the Federal Circuit Court of Australia (the “Court”), the business owner claimed to be unaware of the minimum entitlements applicable to these employees despite being a highly-educated economics professor.

It was noted that prior to engaging these employees, in February 2015, the business was under investigation following an unfair dismissal claim concerning another employee. It was during this investigation the business informed the Fair Work Inspector they were unaware of the applicable award and minimum entitlements for their business. The Fair Work Inspector at the time went through the owner’s obligations regarding Commonwealth workplace laws and award coverage.

The decision

The Court concluded the business failed to pay appropriate minimum wages to both employees, let alone award base rates, overtime rates and penalty rates. Upon termination of employment, accrued annual leave was not paid and requirements for record keeping and payslips were not met.

The Court considered the failure to comply with record keeping and payslip obligations was a serious breach by the business. By not providing payslips, the business prevented the employees from understanding discrepancies in their rate of pay and entitlements. As a result, the Court imposed higher penalties and the business owner was held personally liable to pay a total fine of $31,000.

Learnings for business

Businesses, business owners, managers, and HR professionals should be aware of the appropriate industrial relations instrument that applies to their employees to ensure they are meeting their minimum obligations.

Underpayments can be claimed for the previous six years which is why in this case, although these underpayments occurred in 2016, the employees were still able to make a claim in 2020.

Every business must ensure they are meeting their obligations.

How we can assist

The Victorian Chamber Workplace Relations Advice Line is on hand to provide support and to help businesses understand their minimum entitlements when employing staff. In addition, our Workplace Relations Consultants have a wealth of experience conducting workplace wage audits and providing advice and support to business.

Received an underpayment claim? Our Workplace Relations Consultants are on hand to help to explain the processes, draft responses and submissions, and represent you in the Fair Work Commission.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222.

[2020] FCCA 2924