It’s been a busy start to the year for both the Fair Work Commission and the Fair Work Ombudsman (we’ve already done a report on the former). A new amendment to the Fair Work act to protect vulnerable workers has been proposed, and cases like these are why it’s a political winner.
Protecting vulnerable workers
On Wednesday, Natalie James, Fair Work Ombudsman, gave evidence before the Senate Education and Employment Legislation Committee Inquiry into the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017. In her opening statement she laid out the argument for the bill.
“My Inspectors doggedly pursue operators that engage in a range of tactics calculated to evade our action,” she said, explaining that some have gone so far as to liquidate their company and set up a new business, don’t keep or falsify their records, target vulnerable workers who don’t know their rights, and threaten staff with losing their job or their visa.
The bill would help the Ombudsman by providing changes to franchisor liability (previously covered by HRM), a number of smaller alterations related to, amongst other things, keeping false records and employers forcing employees to repay them money. But potentially the biggest change is the inclusion of a new section to the act related to “serious contraventions”.
Such a contravention would be defined as something intentional and part of a systemic pattern, and the court would assess whether it exists based on the period of time, the number of contraventions, the number of people affected, and the failure to lawfully keep employee and pay slip records. Penalties for committing serious contraventions of the Act would increase tenfold to $108,000 for individuals and $540,000 for body corporates.
(For more information on what’s in the bill, see this very helpful post by Mondaq.)
Of the amendment James noted, “‘No one single measure will fix this issue overnight, but the package of measures contained in this Bill will go some way to giving the Fair Work Ombudsman the tools to combat the most serious worker exploitation.”
Nothing but tomatoes
The kind of case the Ombudsman is thinking about when she refers to “the most serious exploitation” might include one from last month, where a Queensland labour-hire company and its director were penalised a combined $227,330 for exploiting vulnerable Vanuatuan workers. The “employees” were convinced to pay for their own visas, international airfares, and relevant police and medical checkups all for the promise of wages they couldn’t hope to get in their home country.
Once here, they suffered a range of mistreatment including being underpaid, not paid and forced to work ridiculous hours without so much as a cup of tea, and nothing to eat except tomatoes. When they complained the workers were harassed, and on more than one occasion the sole director of the company threatened that he would call the police and have them thrown in jail.
Another franchise underpaying staff
United Petroleum appears to be going the Caltex way (also the Dominoes, Pizza Hut, and 7-11 way) with an activity report by the Ombudsman finding that over 40 per cent of audited fuel retail sites were underpaying their employees, many of whom were migrant workers with little to no knowledge of their rights. The investigation was prompted by media reports.
Acting Fair Work Ombudsman Michael Campbell relayed that, “In one instance, a franchisee was found to have paid five casual student visa holders just $18.70 per hour when, under the relevant award, they should have received at least $25.05 per hour.”
United Petroleum’s new Chief Executive Officer has commenced discussions with the Fair Work Ombudsman canvassing systems and processes that can be implemented to ensure future compliance with workplace laws at its outlets.
What HR needs to know
With a wave of audits by the Ombudsman coming to east coast retail stores, it’s as good a time as any for HR to remind themselves of their rights and responsibilities.
Hannah Ellis, co-founder at the Workplace Employment Lawyers and a regular contributor for HRM, has a helpful video about when HR professionals are personally liable for illegal practice, and noncompliance with workplace laws.
And HRM’s article from last year covers what HR needs to do to protect people on 417 working holiday visas.
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