Underpayment of Wages: Record-Keeping – Cawford de Carne
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Underpayment of Wages: Record-Keeping

Underpayment of Wages: Record-Keeping

The recent Federal Circuit Court case of Taylor v Peninsula Sports Academy Pty Ltd [2019] FCCA 1929 is another example of the underpayment of wages due to a mistake by an employer. For employers, it highlights the importance of understanding and complying with obligations set by modern awards, and, for employees, the importance of record-keeping.

Facts

The Applicant was employed by the Respondent from 8 December 2014 to 5 September 2017 as a swimming coach. He was covered by the Fitness Industry Award 2010 (Cth) (Award). There were few other facts about the lead up to this case, however, the Applicant’s employment had been terminated with the Respondent.

Issues

The issue in this case was the quantum of the underpayment by the employer. The Respondent had accepted the Applicant’s case that he was underpaid under the Award, including: penalty rates; overtime; allowances; minimum hours of work; and, insufficient breaks between shifts. The Applicant was seeking an order for $16,070.04 for underpayment, while the Respondent contended the sum was $14,592.49.

The judge’s comments in relation to the issues in this case were particularly interesting. Regarding the dispute between the Applicant and Respondent on additional hours, overtime and underpayment during full-time employment, His Honour preferred the Applicant’s arguments because of the Applicant’s evidence and conduct in the proceedings. For example, in determining whether the Applicant worked additional hours, His Honour stated:

I do not accept the respondent’s submission. Having considered the evidence supplied by the applicant and his conduct in this proceeding (properly accounting for his overpayment and the honest and meticulous approach to recordkeeping), I accept that he has worked the additional hours as claimed.

Finding

His Honour found that the Applicant had proved his case, providing that he had been underpaid $16,560.40 by the Respondent. Some leniency was given to the Respondent to stay payment for two months on the basis that “the underpayments were not deliberate, arose as a result of misunderstanding the operation of the award, that the sums are significant for the respondent’s business, and that the respondent requires some time to pay the debt.

Lessons

The case of Taylor v Peninsula Sports Academy Pty Ltd [2019] FCCA 1929 emphasises the importance of compliance with modern awards. For employers, it highlights the importance of understanding and complying with obligations set by modern awards. For employees, it highlights the benefit of recording details about their employment.

If you want to read further information on underpayment, please see our article Fair Work Act: Underpayment of Wages.

Written by Angus Macpherson.


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