Example 1 – Joys Child Care
Note
The total penalties included $25,200 imposed against the child care company itself, while the remaining $5,040 was imposed against the individual operator of the company.
https://fairwork.gov.au/about-us/news-and-media-releases/2020-media-releases/august-2020/20200819-joys-child-care-penalty
- Employment Agreement – an agreement between an employer and employee that sets out the terms and conditions of employment.
- Modern Award – a document that sets out the minimum terms and conditions of employment of every industry.
- Enterprise Agreement – an agreement between an employer and a group of employees that sets out the terms and conditions of employment. It prevails over the Modern Award, given that the terms conditions in the agreement are more favourable to the employees.
- National Minimum Wage Order – Annual minimum wage order set by the Fair Work Commission for employees not covered by enterprise agreements or modern awards.
If you suspect that you are underpaid by your employer,
Example
If an employer underpays its employees’ wages for up to 10 years, employees who commence proceedings will only be able to trace their underpayments in the last six years.
- A fine of up to $12,600 for each offence committed by an individual (equivalent to 60 penalty units, one penalty unit equivalent to $210 under section 4AA of the Crimes Act 1914 (Cth)); or
- For a company, the maximum penalty for an offence under the FW Act is $63,000 (equivalent to 300 penalty units).
Note
The court may impose fines on both individuals and companies for the same offence. The court can also order the employer to pay the fine to the employee. Where it is determined that the employer has seriously breached the Fair Work Act, the court may order further penalties.
- A person knowingly contravened the provision; and
- the person’s conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.
If the court considers that there has been a serious contravention, the following penalties may apply:
- A maximum fine of $126,000 for each contravention against an individual; or
- The maximum penalty for each company is $630,000.
- Deliberately and dishonestly underpay employees
- Deliberately and dishonestly withhold wages, superannuation or other employee entitlements
- Falsify employee entitlement records to gain a financial advantage
- Avoid keeping employee entitlement records to gain a financial advantage
These offences are subject to a maximum fine of $218,088 or up to 10 years’ imprisonment for an individual; and a maximum fine of $1,090,440 for a company.
Note
It is also an offence if the company’s senior manager or board of directors explicitly or implicitly authorises or permits the conduct, or if there is a corporate culture that directs, encourages, or tolerates the conduct. Directors and officers of a company may be prosecuted and sentenced under the Wage Theft Act, regardless of whether the corporate body is also prosecuted.
Conclusion
