The FWO expects businesses to take action to remain actively compliant with workplace laws. There were 201 enforcement actions taken in relation to 195 non-compliant businesses as part of the campaign. All businesses that were subject to an enforcement action will be re-audited and the FWO will not tolerate any business ignoring enforcement action. If the FWO finds further non-compliance, more serious action will be taken which may include putting businesses before the courts to seek financial penalties.
The aim of FWO’s Compliance and Enforcement Policy is to deploy a range of compliance and enforcement tools, when warranted, in a proportionate way. That is, our compliance and enforcement tools escalate in seriousness and penalty depending on the risks to the community and the need for compliance. The Compliance and Enforcement Policy operates in conjunction with FWO’s Litigation Policy and both of these policies are considered when making a determination in which compliance or enforcement outcome is appropriate.
A Compliance Notice is a written notice legally requiring a business to rectify contraventions of the Act. The decision to issue a Compliance Notice is not taken lightly, as failure to comply with a Compliance Notice may result in the FWO commencing immediate court action. The FWO can take action for both the original breaches and the failure to comply with the Compliance Notice. A failure to comply can result in significant financial penalties of up to $27 000 for a company and $5 400 for an individual.
One business was issued a Compliance Notice. In this case, a restaurant in Brisbane was identified as underpaying 10 employees a total of just over $4 700. The restaurant was identified as underpaying staff when initially audited in early 2014, although by a considerably larger amount. While those underpayments were rectified, they were not rectified in timeframes required by Fair Work Inspectors at the time. Given this history, Fair Work Inspectors issued a compliance notice requiring all underpaid employees be back-paid within 28 days. This resulted in 10 employees being back-paid in full within 17 days of the notice being issued.
Formal cautions are a written warning when the FWO has found non-compliance and wants to put a business on notice that future non-compliance could result in the FWO seeking financial penalties. It outlines not only the contraventions identified by the FWO, but also the actions taken by the business to rectify those contraventions. In this campaign the FWO used formal cautions where the non-compliance identified did not meet the FWO’s Litigation Policy. If the FWO becomes aware of any further instances of non-compliance, the issue of a prior formal caution will be a factor taken into account in deciding whether to commence civil proceedings against the business and may be used as evidence in any penalty submissions to a court.
174 formal cautions were issued. Formal cautions were issued to businesses operating in more than a dozen industry sectors. 23 formal cautions were issued in the hair and beauty industry, 14 in the takeaway foods industry and 11 formal cautions were issued in the accommodation industry.
Campaign results by Industry can be found in Appendix B.
A total of 26 Infringement Notices were issued. An Infringement Notice is a fine given to a business for non-compliance with record-keeping or pay slip requirements of the Act and Regulations. The FWO has discretion on whether an Infringement Notice is issued and the amount of the fine (up to the legal maximum). The FWO considers aspects such as:
- Whether the business had taken steps to rectify the contraventions identified through previous audits
- Whether the breach impedes a Fair Work Inspector’s ability to find or calculate underpayments
- Whether the breach meant that an employee did not have information needed to recover entitlements
- Whether the employer has a history of breaching time and wage record-keeping or pay slip requirements
- Whether the breach was deliberate to avoid obligations under Commonwealth workplace laws
- Whether the breach had significant implications, for example an employee being unable to secure a loan due to lack of pay records.