08 Sep UNDERPAYMENT OF WAGES: PAYSLIPS
“Without proper payslips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can be easily perpetrated.”
Underpayment of wages by employers often occurs in conjunction with non-compliance of record-keeping and payslip requirements under the Fair Work Act 2009 (Act) and the Fair Work Regulations 2009 (Regulations). The importance of these requirements is highlighted in the recent case of Fair Work Ombudsman v A & K Property Services Pty Ltd & Ors  FCCA 2259.
The First Respondent operated two sushi take away stores. The Second, Third and Fourth Respondents were directors of the First Respondent. This case was brought by the Fair Work Ombudsman (FWO) on behalf of nine employees of the First Respondent. Each of the employees was a foreign national who was residing in Australia and subject to visa requirements. Over three months, the First Respondent failed to adhere to minimum payment standards under the Fast Food Industry Award 2010 (Award) by paying the employees flat rates of between $16 and $22. Importantly, the contraventions of the Respondents included:
a. Failing to make and keep employee records, in contravention of section 535(1) of the Act, as required by regulations 3.32, 3.33, 3.34, 3.36 and 3.37 of the Regulations; and,
b. Failing to provide pay slips within one working day of paying an amount to those employees, in contravention of s 536(1) of the Act.
His Honour, Judge Jarrett, highlighted the importance of specific and general deterrence, especially in situations where there are contraventions relating to employee records and payslips. In doing so, His Honour quoted from the explanatory memorandum to the Fair Work Amendment (Protection Vulnerable Workers) Act 2017, providing “without reliable employee records, employees may be unable to prove their case and recover their minimum entitlements at law” (If you would like to read more about this amendment to the Act, please see our article here).
His Honour emphasised the importance of payslips in the context of this case. Providing that, despite the fact the Respondents were presently complying with their legal obligations under the Act and the Regulations, their past actions were “plainly grossly reckless”. As this was the case, the court made the following orders for penalties:
a. $108,000 for the First Respondent;
b. $10,600 for the Second Respondent;
c. $3,550 for the Third Respondent; and,
d. $3,550 for the Fourth Respondent.
The lessons from this case are particularly relevant for employers. The case emphasises that employers must ensure they understand and comply with obligations under modern awards, enterprise agreements, the Act, and the Regulations. Highlighting, that correct payslips must be provided to employees.
Employees should always ensure that they receive a payslip from their employers within one working day of being paid, and scrutinise and ensure their pay is accurate and correct.
If you wish to read more information on underpayment of wages, please see our articles: Fair Work Act: Underpayment of Wages and Underpayment of Wages: Record-Keeping and Award Compliance.
Written by Angus Macpherson.
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