Twelve formal cautions were issued. Formal cautions are issued when the FWO has found non-compliance. The written warning puts a business on notice that future non-compliance could result in the FWO seeking financial penalties. If the FWO becomes aware of any further instances of non-compliance, the fact the business was issued with a formal caution will be taken into account in deciding whether to commence civil proceedings against the business, and it may be used as evidence in any penalty determinations.
Case study: Formal caution
On reviewing the records provided by a dental clinic in NSW, the inspector conducting the audit identified issues with rates of pay and the lack of content on the pay slips. The business had four employees, all covered by the Health Professionals and Support Services Award 2010 (the Award) with two of the employees receiving their minimum entitlements as per the Award. The remaining two were both casual Support Services Level 3 employees and were receiving less than the Award amount of $24.86 per hour, as at 1 July 2015. The FWO determined that both underpaid employees were genuinely employed and treated as causal but that the employer had not included the casual loadings provided for in the Award.
In addition to the underpayment of hourly rates, the pay slips did not comply with the Regulations as they failed to show the employee’s superannuation fund name and hourly rate of pay. The employer was notified of the findings and was directed to review all records and identify all amounts owed, as well as ensure that pay slips would now include all content requirements. To assist with this process the inspector provided the employer with links to the Award and pay calculator, pay guide and the FWO fact sheet – Employer obligations in relation to employee records and pay slips.
The employer provided calculations for a seven-month period showing that the two employees had been underpaid a combined gross amount of $4370.84. After FWO reviewed the calculations the employer provided confirmation that back payments had been made and new pay slips had been provided that complied with the legislative requirements.
Throughout the audit process the employer demonstrated high levels of co-operation and a willingness to address all issues, there was no history with the FWO and the contraventions identified resulted from inexperience with the award. As a result the FWO determined that the issuing a formal caution on the business was appropriate in the circumstances.
Sixteen 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 the Regulations. A total of $3960 in infringement notices were issued during the campaign.
Case study: Infringement notice
The FWO audited a small dental clinic located in regional Queensland. The business only had one employee, who was assessed as a full time Support Services Employee Level 6 covered by the Health Professionals and Support Services Award 2010 (the Award). At the employer’s direction, the inspector contacted the accountant who advised that the employee had a contract which stated the hours of work, hourly rate, superannuation details and leave provisions. In addition, the accountant explained that the contract was reviewed annually and that no pay slips were ever issued.
As the employee was full time and only worked the set 38 hours per week as per the contract, there were no issues in relation to having no timesheets. However the inspector explained to both the employer and accountant that failure to issue pay slips was a contravention and as such an infringement notice would be issued. Given that no pay slips had ever been issued to the employee, an infringement notice was issued on the business for $540.
The inspector advised the employer and the accountant on the content requirements needed for pay slips to be compliant with the Regulations.
One compliance notice was issued. A compliance notice is a written notice legally requiring a business to rectify contraventions of the Act. Failure to comply with a Compliance Notice results in the FWO commencing legal proceedings against the respondent. A total of $5478.94 was back paid to two employees as a result of the compliance notice being issued.
Case study: Compliance notice
An inspector audited an optometry business in NSW which employed two casual Support Services Level 3 employees covered by the Health Professionals and Support Services Award 2010 (the Award). On reviewing the sample of records provided for the audit, the inspector identified a clear underpayment of hourly rate for ordinary hours and Saturday work.
The pay slips assessed clearly showed that the employees received a flat rate of $20 per hour for all hours worked. The Award, as at 1 July 2015, showed that employees of this status and classification should have been receiving $24.86 per hour for ordinary hours worked Mon-Fri and $34.81 for hours performed on a Saturday.
On ascertaining a significant underpayment per hour on the sample period provided, the inspector directed the employer to review all records and ascertain the quantum of the underpayments. Calculations were performed and thoroughly checked by FWO for a seven- month period, and it was established that the employees were underpaid $3039.48 and $2731.46 respectively.
The FWO issued a compliance notice on the employer, specifying the amounts outstanding for both employees. The employer fully co-operated with the FWO and back-paid a combined gross amount of $5770.94 in accordance with the compliance notice.