The Fair Work Ombudsman (FWO) has significant powers, and funding, to prosecute employers for non-compliance.
Employers must take care when determining which modern award applies to their business or covers their employees, the correct classification for each employee and what is the minimum rates to pay each employee for the work performed. Employers must take care to continue to monitor minimum rates if they elect to pay employees an all-in rate for all hours worked.
While recent Hight Court of Australia decisions might comfort employers that the Courts will not look beyond the words of a contract complete on its face to determine if a person is a contractor or employee, employers can still fall foul of the sham contracting provisions when requiring a prospective employee to be engaged as a contractor. The FWO has powers to prosecute employers for breach of the sham contracting provision of the Act.
If you do receive a letter from the FWO regarding underpayment claims it is important to communicate with the FWO officer and not ignore their communication. It is important to investigate and ensure you have been award/agreement compliant. We consider it is important to engage a lawyer early to assist with communications with the FWO and conduct an audit of award/agreement compliance, so as to avert a prosecution.
At Burke Mangan Lawyers we bring many years of experience and understanding of Award, Agreement and Fair Work Act compliance issues and dealing with the Fair Work Ombudsman. We always recommend that employers conduct regular Award and Agreement audits. We protect the interests of employers and employees in relation to underpayment claims. We have a proven track record to obtain you the right outcome.
General Workplace Protection Claims
In Australia this refers to the protection of employees against adverse actions, such as dismissal or discrimination, that are taken by their employer for exercising a workplace right or engaging in certain activities, as outlined in the Fair Work Act.