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  • HR Heartbeat: Wage theft, how far can employment contracts take you, and...

HR Heartbeat: Wage theft, how far can employment contracts take you, and...

Explore this week’s HR Heartbeat for all the latest updates on who the Ombudsman has its eye on, the consequences of wage theft, the limits of your employment contracts, and more.

First published on Friday, May 05, 2023

Last updated on Friday, May 05, 2023

3 min read

Have you heard the latest news?

Everything you need to know about the latest trends impacting employers all over Australia. Keep up to date with the HR Heartbeat.

Let’s get into the headlines.

The Ombudsman is watching (the fast food, restaurant, and café sector)

Here’s a reminder that the sooner you follow compliance notices the more successfully you can avoid the threat of legal action and penalties.

A director of 2 companies that formerly operated Subway franchise outlets in Adelaide was sent compliance notices requiring back payments owed to three workers. The workers were employed at the outlet for periods between August 2017 and October 2019, and the Compliance Notices were issued in September 2020. These notices were issued because the workers hadn’t been paid what they were entitled to under the Fast Food Industry Award 2010.

When these compliance notices weren’t followed, legal action was taken and penalties were imposed on the director. He had to pay over $5,000 in penalties in addition to the back payments to his former employees.

Fair Work Ombudsman Sandra Parker warned employers that the Ombudsman is prioritising, “Taking action to protect vulnerable employees, such as young workers, and improve compliance in the fast food, restaurant and café sector.” You can read more about the case, here.

Help, they have my wages!

With further laws on wage theft likely to reach a national level, it’s important that you make sure you’re paying your employees the right wages.

Underpayments or unlawful deductions, even when done accidentally, can put your business at risk of breaching wage theft legislation depending on which state or territory laws you must meet. For example, wage theft is a criminal offence in both Victoria and Queensland. And the practice can result in fines in New South Wales.

If you have questions about how changing laws may affect your business, turn to BrightAdvice for support. It’s the easiest way to get in touch with highly trained and experienced employment relations advisers.

Not my training, not my duty.

Employers can’t just ask nicely when it comes to getting their employees to perform tasks that fall outside of their classification under an enterprise agreement.

An employer found themselves a little red-faced when they tried to rely on an employment contract alone to get their employee to take on some duties that didn’t apply to them.

The full bench of the Fair Work Commission noted that this direction wasn’t just outside of the employee’s stream or classification, but the employee also wasn’t trained to complete the specific duties.

The lack of training was extremely relevant to this case because both the enterprise agreement and contract only allowed the employer to direct employees to take on duties within the “limits of their training” or the employee’s “skill and competence”.

What’s the lesson for employers here? Don’t rely on your employment contracts alone when directing employees in their work. You also need to think about:

  • Classification structures
  • The terms of any industrial instrument
  • Whether the employee is trained or skilled to complete the work

You can explore the full context of the case, here. And if you’re looking for ways to update your staff training, explore how BrightLearn can help you empower your staff with extensive e-learning courses.

That’s not what an anomaly looks like

A female orthotist/prosthetist manager claimed discrimination after she was repeatedly denied opportunities to negotiate an above-agreement salary despite approaching her employer multiple times.

While this was going on, many of her fellow male employees who reported to her were receiving higher salaries. One even received up to $41,000 more than her! When she pointed this out to her employer, they dismissed it as an “anomaly”. Hmm...

The Tribunal sided with the employer, arguing that there was no evidence that the male employee had negotiated their pay or received a benefit that the female employee did not.

This was overturned at appeal when the trial judge found that the Tribunal was too limited in their assessment of whether there was direct discrimination. The comparison to the single male employee was by itself too narrow and characterised the case as one of “systemic discrimination”. Take in the full case, here.

And that’s a wrap on this edition of HR Heartbeat. Check back next time for more headlines and latest updates that will keep you in the know with all the major employment changes coming your way.

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