National campaign shows FWO intervention improves compliance

A nation-wide audit of 891 businesses previously found to have contravened workplace laws has revealed the positive impact of intervention by the Fair Work Ombudsman (FWO) on improving employers’ compliance.

The FWO national compliance monitoring campaign focused on following up with businesses that the agency had previously found to be non-compliant with their workplace obligations. The campaign found that 83 per cent of previously non-compliant businesses were now paying their workers correctly, while 81 per cent were complying with record-keeping and pay slip requirements.

Overall, 69 per cent of the previously non-compliant businesses were found to be fully compliant with their workplace obligations.

FWO Natalie James said the results show the progress being made by her agency towards creating a culture of compliance with Australian workplace laws.

“It is important to go back and check that businesses have mended their ways after my agency has found them to be non-compliant. It is clear that after their initial interactions with my agency, most of these businesses have taken our advice on board and put in place systems and processes to ensure they are compliant into the future,” Ms James said.

“Many of these businesses are small businesses that often do not have the benefit of dedicated human resources or payroll teams, meaning that the advice and guidance they receive from my agency is vital. The positive results of this campaign show that non-compliant businesses are often genuinely trying to do the right thing, but may lack an understanding or awareness of their obligations.

“Of course, there is still room for improvement. It is important for all businesses to be aware of and comply with their workplace obligations, and my agency will continue to assist them to do so.”

Amongst the businesses found to be non-compliant during the campaign, Fair Work Inspectors identified 390 contraventions, primarily relating to pay slip errors, underpayments and failure to apply penalty rates.

In many cases where non-compliance was detected, the FWO found that the businesses had made a genuine effort to comply following the initial interaction with the FWO.

However, the FWO has taken enforcement action against 195 businesses in response to significant instances of continued non-compliance uncovered during the audits.

“Continued deliberate non-compliance, particularly when a business has previously been audited by my agency, cannot be tolerated,” Ms James said. “We will be closely monitoring those businesses found to be non-compliant during this campaign to ensure that they are meeting their obligations in the future.

“Any further instances of non-compliance may be put before the courts to seek financial penalties.”

Ms James said her agency is committed to providing employers with easy access to resources and information to enable them to understand and comply with their workplace obligations.

The post National campaign shows FWO intervention improves compliance appeared first on Australasia’s Cleaning Industry and Environmental Technology Magazine.

Source: InClean

Win for housekeepers in sham contracting arrangement

A sham arrangement case that involved three employees – including two housekeepers – who were engaged as independent contractors so their rights and entitlements would not be protected by industrial relations legislation, has now been finalised, with their former employers penalised a total of $58,740 in the Federal Court.

The penalties are the result of Fair Work Ombudsman legal action commenced in 2011.

The Fair Work Ombudsman alleged that Quest South Perth Holdings, which formerly operated the Quest on Arlington serviced apartments in South Perth, contravened the sham arrangement provisions of workplace laws in 2009 when it purported to convert two housekeepers and a receptionist at Quest on Arlington into independent contractors.

Quest South Perth Holdings dismissed the workers and immediately re-hired the housekeepers as purported independent contractors to perform the same duties. The receptionist was not re-hired after Quest dismissed her.

After the purported conversion to independent contractors, the two housekeepers were paid a flat rate that did not make provision for entitlements such as weekend and public holiday penalty rates or overtime.

The Fair Work Ombudsman alleged the purported contracting arrangement was a sham and the correct relationship for the workers was as employees.

After part of the Fair Work Ombudsman’s case was dismissed by the Federal Court and the Full Court of the Federal Court, the Fair Work Ombudsman lodged its first ever High Court appeal.

The High Court unanimously upheld the appeal in December 2015, ruling that Quest South Perth Holdings’ conduct contravened sham contracting laws.

The matter was referred back to the Federal Court, where penalties have now been imposed against the company and Luchmaya by Justice John Gilmour.

Justice Gilmour found that the contraventions were the result of “Quest’s strategy and desire to engage the employees as independent contractors so their rights and entitlements would not be protected by industrial relations legislation”.

“The FWO submits correctly, in my opinion, that the impact of sham contracting contraventions is that workers believe that they are deprived from the wide ranging entitlements afforded to employees, including minimum rates of pay, annual leave, personal leave, long service leave, parental leave, superannuation, workers compensation, notice upon termination of employment and eligibility to access other protections such as unfair dismissal applications, general protections applications or an application for an order to stop bullying,” Justice Gilmour said.

Justice Gilmour said Quest’s contraventions involved “deliberate and conscious acts designed to circumvent industrial relations legislation and the protections they provide” and found that the impact on the workers was significant.

Fair Work Ombudsman Natalie James said the outcome of the matter sends a clear message that her agency will not tolerate attempts to use corporate trickery to try to disguise employment relationships as contracting situations.

“The significant resources we have committed to pursuing this matter for several years reflect the seriousness with which we treat sham contracting behaviour,” James said.

“These proceedings send a message to unscrupulous employers about the consequences of sham contracting behaviour.

“The High Court ruling we secured in this matter was also important because it creates greater legal protection for employees in situations where employers attempt to avoid responsibility for providing employees’ lawful minimum wages and entitlements by claiming employees are independent contractors.”

The post Win for housekeepers in sham contracting arrangement appeared first on Australasia’s Cleaning Industry and Environmental Technology Magazine.

Source: InClean