The Abbott-Turnbull-Morrison Government preparing another assault on workers' rights and conditions - this time using the COVID-19 pandemic as an excuse

Australian Prime Minister & Liberal MP for Cook Scott Morrison is considering dumping the BOOT test - the better off overall test - that governs the nation's enterprise bargaining system for establishing wages and conditions.

It is clear that he is laying the groundwork for this in the wording used in a press conference on 29 May 2020 when speaking of jobs and industrial relations reform.

Introduced in the 1994 enterprise bargaining is the process of negotiation generally between the employer, employees and their bargaining representatives with the goal of making an enterprise agreement. 

The Fair Work Act 2009 established clear rules and obligations about how this process is to occur, including rules about bargaining, the content of enterprise agreements, and how an agreement is made and approved.

Since the inception of enterprising bargaining est.161,728 enterprise agreements were created. However, only est. 10,877 remained by September 2019, as agreement numbers fell off markedly after a Fair Work Commission decision that every individual worker had to be better off in an enterprise bargaining agreement than under the relevant industry award.

Employers found it harder to reduce wages and conditions after that ruling and lost some of their enthusiasm - preferring instead to increasingly casualise their staff and/or transform them into rolling fixed contract workers.

Now in the middle of a global pandemic business groups are reportedly calling for removal of more conditions from awards and workplace pay deals as key priorities.

With the Australian Industry Group calling for reform in three key industrial relations areas by: 

• changing enterprise bargaining laws in the current Fair Work Act; 
• simplifying awards by removing conditions dealt with in legislation such as annual leave, personal/carer’s leave, redundancy pay, notice of termination, consultation, dispute resolution, flexibility agreements and requests for flexible work arrangements; 
• removing barriers to "flexibility" in awards which would potentially allow lowering of labour costs;
• retaining current civil penalties for underpayment of a worker's wage rather than creating a criminal offence for serious underpayments/deliberate theft;
• abandoning the better off overall test for enterprise agreements;
• further restriction potential union intervention in the enterprise bargaining process;
• further restricting protected industrial action by workers; and 
• extinguishing the new right of casuals working full-time hours to paid annual leave and public holiday entitlements (See Workpac v Rossato & Workpac v Skene).

Using job losses due to COVID-19 pandemic public health orders as an excuse, it is apparent that Morrison intends yet another sustained assault on penalty rates, wages and conditions.

Morrison is willing to progress this assault as far as introducing a bill or bills in the Australian Parliament drafted without the co-operation of unions or even some industry sectors if necessary.

Despite protestations otherwise, it is clear that the Liberal and National political parties are opening up another front in their seemingly endless, ideologically-driven, class war.

Australian casual employees regularly working full-time hours win paid leave, carer & compassionate leave in Federal Court ruling - Morrison Government threatens to change law to strip new rights away

"All members of the Court have also found that Mr Rossato was not a casual FTM under the 2012 EA, noting that the circumstances of his employment could not be distinguished in a material way from those of Skene. All members of the Court have found that WorkPac is not entitled to restitution of the casual loading which it claimed was included in the hourly rate it had paid to Mr Rossato. The members of the Court have found that there was no relevant mistake, and no failure of consideration such as would support restitutionary relief. All members of the Court have found that WorkPac is not entitled to bring into account the payments of remuneration that it had made to Mr Rossato on the basis that he was a casual employee. That is because the purposes of the payments of remuneration did not have a close correlation to the entitlements that Mr Rossato seeks. All members of the Court have found that WorkPac’s reliance on reg 2.03A of the Fair Work Regulations 2009 (Cth) was misplaced. By subregulation (d), the regulation can apply only when the person makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements. That is not this case as Mr Rossato seeks payment of the NES entitlements, not payments in lieu." [Workpac v Rossato, May 2020]

Yahoo! Finance, 21 May 2020:

Casual employees working full-time hours will be entitled to paid leave, setting back employers around $8 billion in back-pay claims, after a landmark ruling by the Federal Court on Wednesday.

The decision means regular, ongoing casuals will be able to access paid annual leave, paid personal/carer’s leave and paid compassionate leave, and employers cannot claim that 25 per cent pay loadings offset those entitlements.

The ruling in Workpac v Rossato has effectively pulled the pin on the ‘permanent casual’ work model, and means any regular work that is permanent in nature is not genuinely casual, and therefore attracts the same entitlements as permanent staff.

“This is a fantastic decision that puts an end to the ‘permanent casual’ rort that has become a scourge in the coal mining industry and across the workforce,” the Construction, Forestry, Maritime, Mining and Energy Union national president Tony Maher said.

“It’s a decision that passes the pub test on what it means to be a casual and is consistent with community expectations that casual work is irregular and intermittent.”

Maher called on employers to “stop the nonsense”, and start treating casual employees on permanent hours as if they were permanent.

“When a job is full-time, regular and on-going, it is permanent and deserves the security and entitlements that come with permanent work,” Maher said.

“Our union has worked hard to clarify the law with this decision and we will now be fighting to restore rights and lost pay for casual labour hire workers across the coal mining industry who have been illegally ripped off.”…….

Industrial relations minister Christian Porter said the decision would have “immediate practical implications for the bottom line of many Australians businesses at a time when so many have taken a huge hit from the Covid-19 pandemic”.

In fact, employers estimate between 1.6 and 2.2 million casuals will be affected, with a back-pay bill of around $8 billion looming.

Porter also flagged a potential appeal….

"Given the potential for this decision to further weaken the economy at a time when so many Australians have lost their jobs, it may also be necessary to consider legislative options."

See Summary of WorkPac Pty Ltd v Rossato [2020] FCAFC 84 (20 May 2020) for further details.

If as an ordinary worker you feel like you have been financially marching backwards for the last five and a half years then you probably have

“Backing business generates higher wages, jobs & growth.”  [Australian Treasurer & Liberal MP for Kooyong Josh Frydenberg, Twitter, 8 March 2019]

Such a confident quote from a Coalition Treasurer in campaign mode - but is it true?

According to the Dept. of Prime Minister & Cabinet/ASIC at the end of the period 30 July 2013 to 31 June 2014, there were est.2.6 million actively trading businesses in Australia and, according to the ABS by the end of  2017-18 there were 2.3 million actively trading businesses in the market sector in Australia.

Despite the Morrison Government alleging that by November 2018 it had created 1.2 million more jobs since September 2013, it's easy enough to see that in January 2019 the seasonally adjusted unemployment rate was only 0.6% lower than it was when the Abbott-Turnbull-Morrison Coalition Government came to power in September 2013.

Additionally, it would appear that the ratio of unemployed persons to job vacancies in late 2013 was est. 20 unemployed individuals for very 1 job vacancy and by December 2018 this stood at an est. 15.57 unemployed individuals for every 1 job vacancy.

So what about wages growth?

The Global Financial Crisis ran from 2007 to 2008 and Australia came through this crisis relatively unscathed.

So with little structural damage to our financial institutions or the industry & business sectors, the national economy should be chugging along nicely.

By now ordinary workers should be reaping the rewards for their productivity - as labour input to market sector multifactor productivity increased by 3.0% overall on quality adjusted hours worked basis in 2017-18 (while capital input only grew by 2.0%).

The biggest labor input increases occurred in Administrative and Support Services (8.2%), Manufacturing (3.8%), Accommodation and Food Services (3.7%), and Professional, Scientific and Technical Services (3.7%).

However, this is what each Australian's nominal slice of the economic pie looked like by December 2018......

According to the Australian Bureau of Statistics (ABS) in the December Quarter 2018; Compensation of employees increased by 0.9% nationally. 

In the Australian Capital Territory  the compensation increase was 2.1%, in Tasmania 1.6%, Queensland 1.5%, Victoria 1.4%, New South Wales 0.7%, and South Australia 0.1%. However compensation growth went backwards in Western Australia at -0.2% and Northern Territory -0.7%.

Also according to the ABS; The Consumer Price Index (CPI) rose 0.5 per cent in the December quarter 2018.  This followed a rise of 0.4 per cent in the September quarter, a rise of 0.4% in the June quarter and a 0.4% rise in the March quarter 2018.

It doesn't take a genius to see that nationally the effect of that December national compensation increase was actually 0.9% minus 0.5% CPI equalling 0.4% when it came to how far those few dollars in wage increase would stretch the weekly pay packet.

Why is low wages growth occurring? Well according to the Minister for Finance and the Public Service & Liberal Senator for Western Australia Mathias Cormann it is deliberate Morrison Government policy to suppress wages growth.

Low wage growth is no accident. Watch @MathiasCormann confirm that. pic.twitter.com/z8fGGCO52Z

— Australian Unions (@unionsaustralia) March 8, 2019

The result of this ongoing wages suppression? A continuation of the downward progression of disposable income and rising household debt, as illustrated in this graph from 2015 onwards.

ABC News, 9 September 2018

BACKGROUND

 Business Insider, 4 March 2019:

The ABS on Monday (4 March) released its Business Indicators results for December 2018, which showed trend growth in company gross operating profits at a healthy 9.6 per cent over the year to the December quarter.

Seasonally adjusted, that figure was even higher, hitting double digits at 10.5 per cent.

The figures were boosted by a strong performance that quarter, with trend growth up by 0.9 of a percentage point on the September quarter, or by 0.8 of a percentage point when seasonally adjusted.

The New Daily, 7 March 2019:

Chief executives and chief financial officers don’t get bonuses for increasing their companies’ labour costs – so they try not to.

Chairpersons and boards are not clapped on their collective back by institutional investors for devoting a greater share of revenue to wages – so they don’t.

And the cumulative effect of those simple realities is now unavoidable: Years of real, take-home wages going backwards while corporate profits increased, have meant household consumption is stalling and taking the economy with it.

Yet such is the myopic nature of corporate focus, business leaders react with horror to the idea that employees need a bigger share of the pie.

The business lobby claims wage increases aren’t possible without productivity trade-offs – but that’s after the productivity increases of recent years going overwhelmingly to higher profits.

Quite simply, the key business lobby groups have little credibility. They claimed reducing penalty rates would increase employment – it didn’t. They claimed cutting company tax would increase wages: It hasn’t and it won’t.

Household consumption accounts for more than half of the economy. According to the ABS, and nicely reported by Greg Jericho with helpful graphs, real household disposable income per capita has fallen back to where it was in 2010.

“Average compensation per employee” grew by only 1.5 per cent in 2018 – an even worse result than the better-publicised ABS wages index.

It’s only population growth that’s providing what little retail sales and GDP growth we have….

The Fair Work Commission (FWC) increased the minimum wage by 3.5 per cent last July – against the arguments of the business lobby – and by 3.3 per cent in July 2017. 

That increase of 6.8 per cent barely registered on the various measures of wages growth.

The conundrum of business needing consumers to have income growth, but 

not wanting to pay workers more, is a little like the “Paradox of Thrift” – it makes sense for an individual in uncertain times to save and not spend as much, but if everyone does it, uncertain times turn into bad times.

As argued here previously, business is holding a very determined wages strike. 

Corporate leaders don’t need FWC permission to do it, they just have to hang together to keep a lid on wage rises. In the process, they’re shooting themselves in the foot.

For the Coalition government, the result is a record of economic failure.

Tweets of the Week

Note: Cr Keith Williams is deputy mayor of Ballina Shire Council on the NSW Far North Coast.

An employer took money from DHS to pay an employee’s maternity leave, didn’t pay her the money, and then forged her signature on records to hide his actions from FWO.

FWO brought a civil case.

It’s time to make wage theft a crime. pic.twitter.com/KH5AnVPFzk

— _robcorr (@_robcorr) May 22, 2018

Federal Circuit Court on Thursday sentenced Trek North Tours owner operator to 12 months' prison and fined him $67,000

Leigh Alan Jorgensen, Financial Review, 13 May 2018

In the continuing matter of A.C.N. 156 455 828 Pty Ltd & Anor.

Fair Work Ombudsman, media release, 14 May 2018:

Jail term imposed in Fair Work Ombudsman’s first contempt of court case

A Northern Queensland business operator has been jailed – and then released pending the outcome of his appeal – as a result of the Fair Work Ombudsman’s first contempt-of-court action.

On Thursday May 10, the Federal Circuit Court sentenced Leigh Alan Jorgensen - the owner-operator of a Cairns company trading as Trek North Tours – to a 12-month jail term and fined him $84,956 for committing contempt of court by contravening a freezing order that applied to funds in his company’s accounts.

The Court ordered that Jorgensen’s jail term be suspended after he had spent 10 days in jail on the condition of payment of the fine.

Jorgensen sought an urgent stay of the orders in the Federal Court and lodged an appeal against his conviction and sentence. In accordance with her model litigant obligations, the Fair Work Ombudsman agreed to the stay on conditions. On May 11, the Federal Court ordered that his sentence be stayed and Jorgensen be released from jail on conditions, pending the outcome of his appeal.

A Court date has not yet been set for the appeal hearing but an order has been made that it be expedited.

The matter is the first time the Fair Work Ombudsman has commenced a contempt of court action and the first time a jail term has been imposed as a result of the Agency’s actions.

Judge Salvatore Vasta imposed the jail term after finding Jorgensen had committed contempt of court when he contravened a freezing order the Fair Work Ombudsman secured against his company in 2015. 

Freezing orders were imposed in the Federal Circuit Court in 2015 preventing any dispersion of Jorgensen’s and his company’s assets until such time as they complied with penalty and back-payment orders resulting from the Fair Work Ombudsman taking legal action against them for underpaying five back-packers on 417 working holiday visas in 2013 and 2014.

The relevant orders from that legal action, imposed by the Federal Circuit Court in June 2015, were for Jorgensen to pay a $12,000 penalty and his company to pay a $55,000 penalty and back-pay the backpackers in full, all by 17 July, 2015.

The Fair Work Ombudsman took the step of securing freezing orders against both Jorgensen and his company after both failed to pay the amounts owed by the due date and receiving information that gave rise to concerns that Jorgensen would divert company assets to avoid payment of the penalties and back-pay.

At the time, Jorgensen’s communications with the Fair Work Ombudsman suggested he was prepared to ‘bankrupt’ his company to avoid paying the penalties and back-pay order.

Jorgensen had also previously told Fair Work inspectors investigating the underpayments that the backpackers ‘would not get a cent’ in back-pay.

After the freezing orders were imposed, Jorgensen paid the penalty imposed on him personally into Court, resulting in the freezing order against him being lifted.

However, Jorgensen’s company failed to pay its penalty and failed to back-pay the workers, resulting in the freezing order against his company remaining in place.

The Fair Work Ombudsman commenced legal action against Jorgensen for contempt of Court last year, alleging that Jorgensen committed the offence of contempt of court in August 2015 when he contravened the freezing order against his company by transferring a total of $41,035 from two frozen accounts into his family trust account.

Judge Vasta found that the Fair Work Ombudsman had presented evidence to prove, beyond a reasonable doubt, that Jorgensen committed the offence.

Pending the outcome of his appeal, the Federal Court has released Jorgensen on conditions including that he surrender his passport, remain in Queensland and report to Police twice a week.

Fair Work Ombudsman Natalie James says that the commencement of these proceedings demonstrates that her Agency is prepared to use every tool at its disposal to ensure justice is served.

“We will use every lever open to us to ensure the integrity of the administration of justice and compliance with court orders imposed under the Fair Work Act 2009.

“This includes taking unprecedented new actions available to us across the legal framework such as this one.”

BACKGROUND

Australian Securities and Investments Commission (ASIC), media release, 6 February 2017:

17-023MR Former company director charged with making false or misleading statements

Former company director Leigh Alan Jorgensen, of Cairns, Queensland, has been charged with making a false or misleading statement to ASIC.

In February 2016, Mr Jorgensen lodged with ASIC a Form 6010 to voluntarily deregister A.C.N 156 455 828 Pty Ltd (ACN 156 455 828), in which ASIC alleges that Mr Jorgensen falsely and misleadingly claimed the company had no outstanding liabilities. At the time, ACN 156 455 828 had an outstanding liability owing to the Commonwealth and Mr Jorgensen was the sole director.

The charge was brought against Mr Jorgensen following an ASIC investigation into his conduct as a director of the company.

Mr Jorgensen is due to appear at the Cairns Magistrates Court on 21 March 2017.

The Commonwealth Director of Public Prosecutions is prosecuting the matter.

Background

The matter was brought to ASIC's attention by the Fair Work Ombudsman (FWO), who initiated legal proceedings against Mr Jorgensen and ACN 156 455 828 for unpaid employee entitlements. The FWO obtained judgement against ACN 156 455 828 which, in part, required the company to pay the Commonwealth a pecuniary penalty of $55,000. The order was obtained by the FWO before Mr Jorgensen lodged the Form 6010 to deregister ACN 156 455 828.

As a result of ASIC's investigation, Mr Jorgensen has been charged with contravening section 1308(2) of the Corporations Act 2001 (Cth).

Mr Jorgensen ceased as a director of ACN 156 455 828 on 1 March 2016. A Liquidator was appointed to ACN 156 455 828 on 29 July 2016.

Editor's note 1:

Following a hearing at the Cairns Magistrates' Court on 21 March 2017, the matter was adjourned for further mention until 16 May 2017.

Editor's note 2:

Following a hearing at the Cairns Magistrates Court on 16 May 2017, the matter was adjourned for further mention on 27 June 2017.

Editor's note 3:

Following a hearing at the Cairns Magistrates Court on  27 June 2017, the matter was adjourned for further mention on 25 July 2017.

Editor's note 4:

Following a hearing at the Cairns Magistrates Court on  25 July 2017, the matter was adjourned for further mention on 22 August 2017.

Editor's note 5:

Following a hearing at the Cairns Magistrates Court on  22 August 2017, the matter was adjourned to 5 September 2017.

Editor's note 6:

Following a hearing at the Cairns Magistrates Court on  7 September 2017, the matter was adjourned for further mention on 19 September 2017. 

Editor's note 7:  

A warrant was issued for Mr Jorgensen following his failure to attend the Cairns Magistrates Court on 19 September 2017.

Editor's note 8:

Following a hearing at the Cairns Magistrates Court on  27 September 2017, the matter was adjourned to 3 October 2017.

Editor's note 9:

Following a hearing at the Cairns Magistrates Court on 3 October 2017, the matter was set down for a committal hearing on 24 November 2017.

Editor's note 10:

Following a hearing at the Cairns Magistrates Court on 24 November 2017, the matter was adjourned to 13 February 2018.

Fair Work Ombudsman begins another weary audit which will inevitably discover more employers behaving like criminals

Despite wage growth falling to record lows last year, the Australian Minister for Jobs and Innovation WA Liberal Senator Michaelia Cash continues to talk down any need for a substantial national minimum wage increase and praises the good will of employers big and small.

It seems she just refuses to accpet the evidence of her own eyes.......

The Guardian, 11 April 2018:

On Wednesday the Fair Work Ombudsman announced an audit targeting the fast food, restaurant and cafe sector which will penalise businesses exploiting vulnerable workers, including students, casual staff and immigrants.

It follows numerous high-profile cases of workers being exploited, including a cook who was employed by Bar Coluzzi in Sydney on a 457 skilled worker visa who was told by her boss to repay $13,952 of her wages to cover tax and superannuation contributions. She was also working excessive unpaid overtime.

The convenience story chain 7-Eleven was found by a Senate inquiry to have been forcing workers to go to ATMs to withdraw and pay back wages. The panel investigating 7-Eleven told the inquiry it had made 188 determinations that 7-Eleven was liable to pay workers a total of $4.36m, with workers being underpaid an average of $23,000 each.

A Fair Work Ombudsman spokesman told Guardian Australia that intelligence from a range of sources found failing to pay the correct hourly base, penalty and overtime rates, and ignoring record-keeping and payslip requirements were consistent issues.

In 2016–17, 44% of the hospitality workers assisted by the ombudsman to resolve workplace disputes were aged under 26, and 31% were visa holders. Despite the hospitality industry employing around 7% of Australia’s workforce, it accounted for the highest number (17%) of disputes. It was also the industry with the highest number of anonymous reports received (36%), infringement notices issued (39%) and court actions commenced (27%).

While workers under the age of 25 account for about 15% of the Australian working population, they were involved in 28% of workplace disputes the ombudsman took on in 2017. Migrant workers make up 6% of the Australian workforce, however 18% of workplace disputes involved a visa holder.

The ombudsman has begun auditing 1,000 businesses across the country and investigators will check the time and wage records of randomly selected businesses, especially those employing a large numbers of vulnerable workers. Companies involved in serious contraventions will face penalties of up to $630,000 per contravention. The maximum penalty for individuals is now $126,000 per contravention. Failing to keep employee records or issue pay slips attracts a penalty up to $63,000 for a company and $12,600 for an individual.

Turnbull Government, business and industry still out to suppress minimum wage

According to the Australian Treasury in November 2017;  

On a variety of measures, wage growth is low....

However, weaker labour productivity growth seems unlikely to be a cause of the current period of slow wage growth in Australia. Over the past five years, labour productivity in Australia has grown at around its 30-year average annual growth rate....

An examination of wage growth by employee characteristics using the Household Income and Labour Dynamics in Australia (HILDA) survey and administrative taxation data suggests that recent subdued wage growth has been experienced by the majority of employees, regardless of income or occupation.....

This is true across the States and Territories, across industries, and across both the public and private sectors. Real wage growth – wage growth relative to the increase in prices in the economy – has also been low.

The Reserve Bank of Australia suggests in its March Quarter 2017 Bulletin that there is"

...some tentative evidence that the relationship between wage growth and labour market conditions may have changed, and that this may help to explain recent low wage growth. Using job-level micro wage data, we also find that, since 2012, wage increases have been less frequent and wage growth outcomes have become much more similar across jobs.

In Australia a minimum wage is an employee’s base rate of pay for ordinary hours worked.

Being paid at the minimum wage rate means that a worker is paid the lowest hourly income for his/her labour that is legally allowable.

At the beginning of the 21st Century (January 2001) the national minimum wage was $10.53 per hour or $400.40 per 38 hour week (before tax).

The current national minimum wage is $18.29 per hour or $694.90 per 38 hour week (before tax) according to the Fair Work Commission.

That represents a rise of $7.76 an hour over the course of 17 years - the equivalent of 45 cents a year.

Not a spectacular hourly base wage growth by any measure.

In March 2018 the Australian Federation of Employers and Industries (AFEI), Australian Retailers Association, Restaurant & Catering Industrial (RCI), Australian Business Industrial and the NSW Business Chamber Ltd (along with eight other industry representatives) made initial submissions to the Fair Work Commission Annual Wage Review 2017-18.

It will come as no surprise that any decent rise in the minimum wage is being resisted in these submissions.

A number of business and industry representatives appear to believe that even raising the minimum wage hourly rate by as little as 34-35 cents is an onerous burden.

Frequent mention is made of the supposed part the businesses they represent play in national ‘jobs and growth’ and the risk wage increases allegedly pose.

A notion supported by the Turnbull Government’s own submission.

Couched in polite terms within their submissions is the last resort position of both the federal government and big business. 

It seems they are reluctantly willing to accept a minimum wage increase that doesn't rise by more than 1.9% (rate of inflation in December 2017) and definitely resist the idea of a rise that actually results in real wages growth.

However, there is another less polite aspect of the part businesses play in the lives of workers and it should be remembered when listening to business and industry representatives make their wage case during media appearances.

The Australian Government Fair Work Ombudsman’s 2018 media releases offer a window on that other aspect which includes a widespread contempt for both workers and the law.

 Media release, 16 March 2018:

Western Sydney campaign reveals high rates of unlawful workplaces

High rates of non-compliance uncovered by the Fair Work Ombudsman in Western Sydney have reinforced the importance of ensuring that Australia’s culturally and linguistically diverse communities have ready access to workplace information and advice.

The Fair Work Ombudsman today released the results of its proactive education and compliance campaign in the region, covering suburbs including Cabramatta, Guildford, Mt Druitt, Fairfield and Merrylands.

Almost two-thirds (64 per cent) of the 197 businesses audited by the Fair Work Ombudsman during the campaign were found to be non-compliant with workplace laws.

The campaign led to a total of $369,324 in unpaid wages and entitlements being recovered for 199 workers.

Sixty-four per cent of businesses were compliant with record-keeping and payslip requirements, while just 58 per cent were paying their employees correctly.

The campaign was initiated following an increase in the number of requests for assistance received from some parts of the region in previous years, despite an overall decrease across New South Wales in the same period.

As part of the campaign, Fair Work inspectors conducted site visits with a particular focus on Harris Park and Parramatta in response to intelligence received by the agency indicating potential non-compliance amongst restaurants in the area.

The suburbs are also home to a higher than average proportion of migrants, with both Harris Park (85 per cent) and Parramatta (74 per cent) at more than twice the national average of 30.2 per cent.

Acknowledging that new arrivals to Australia may have a limited awareness of Australian workplace laws, it was considered that businesses in the region would benefit from tailored support and education from the Fair Work Ombudsman.

Only two of the 23 businesses visited in these suburbs were found to be fully compliant – a non-compliance rate of 91 per cent.

Fair Work Ombudsman Natalie James says the non-compliance rates uncovered by the campaign are highly concerning and cannot be tolerated.

“Where possible, we seek to educate employers and employees about their workplace rights and obligations and equip them with the tools and information they need to ensure they are complying with the law,” Ms James said.

“This area has a large proportion of people from culturally and linguistically diverse backgrounds, who can find it more challenging to navigate that information or even know where to find it in the first place.

“When combined with a lack of familiarity with workplace laws, language barriers can present significant difficulties to employers seeking to understand and comply with their obligations. 

“The results of this campaign reaffirm the importance of my agency’s work in reaching out to culturally and linguistically diverse communities to raise awareness of the help we can provide.

“We are also making more and more of our tools and resources available in multiple languages, including our Anonymous Report function and the Record My Hours app,” Ms James said.

“Our website can also be viewed in 40 languages other than English with a simple click of the mouse with our new website translator.

“With the wealth of free information and resources available to help businesses understand their obligations, there are no excuses for breaching workplace laws.”

Overall, Fair Work inspectors issued 26 formal cautions, 20 infringement notices (on-the-spot fines) and 11 compliance notices to non-compliant businesses during the course of the campaign.

In one matter, a restaurant business was found to be paying its casual employees under an old award, resulting in a total underpayment of $10,444 to three employees. Fair Work inspectors issued the employer with a compliance notice, and the employees were fully back-paid in accordance with the notice.

Ms James said that non-compliant businesses were now on notice that future breaches could result in serious enforcement action.

“We are happy to work with businesses who require advice and support to meet their workplace obligations, and we will continue our work to ensure our materials are easily accessible to those that need them,” Ms James said.

“Indeed, we were pleased that the employers that we dealt with over the course of this campaign were cooperative and willing to engage with our inspectors, and that all contraventions were willingly rectified.

“We will continue to pursue new initiatives aimed at engaging with businesses in the region to ensure they have access to the help and information they need.”

Ms James reaffirmed however that her agency will not hesitate to take action where deliberate or repeated breaches of the law were identified.

“Employers who fail to put in place processes to ensure compliance expose themselves to enforcement action, including litigation in the most serious cases,” Ms James said.

Employers and employees seeking assistance can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94. An interpreter service is available on 13 14 50. 

Potential workplace breaches can be anonymously reported in 16 languages other than English using the Fair Work Ombudsman’s Anonymous Report function at www.fairwork.gov.au/inlanguageanonymousreport.

The Fair Work Ombudsman recently developed six videos in 16 languages other than English to help visa holders to understand their workplace rights. These and other in-language resources are available at www.fairwork.gov.au/languages.

The Fair Work Ombudsman’s Record My Hours app is aimed at tackling the persistent problem of underpayment of vulnerable workers by using geo-fencing technology to provide workers with a record of the time they spend at their workplace. The app is available in a number of different languages and can be downloaded from the App Store and Google Play.

Follow Fair Work Ombudsman Natalie James on Twitter @NatJamesFWO , the Fair Work Ombudsman @fairwork_gov_au  or find us on Facebook www.facebook.com/fairwork.gov.au .

Sign up to receive the Fair Work Ombudsman’s media releases direct to your email inbox at www.fairwork.gov.au/mediareleases.  

Read the Western Sydney Campaign report (PDF 445.5KB)  [my yellow highlighting]

Media Release, 5 March 2018:

The Fair Work Ombudsman’s latest Compliance Activity Report shows a workplace non-compliance rate of 76 per cent in the Caltex service network…..

The Fair Work Ombudsman commenced proceedings against the former operator of the Caltex Five Dock service station in Sydney, Aulion Pty Ltd, and has also initiated proceedings against Abdul Wahid and Sons Pty Ltd, the former franchisee of a number of Caltex outlets in Sydney.

In both cases, the Fair Work Ombudsman alleges that the absence of accurate time and wage records prevented inspectors from completing audits and determining whether employees had received their lawful entitlements.

During the activity, the regulator issued nine infringement notices, 11 compliance notices and 16 formal cautions to non-compliant franchisees.

Inspectors also recovered a total of $9,329.85 in back-pay for 26 workers who were underpaid during a one-month assessment period.

Ms James said the agency believes the figure would be higher if underpayments could have been accurately calculated, but with so many deficiencies in the outlets’ records it is impossible to be sure of the true extent of the wage rip-offs. 

“There’s no question that if these findings indicate the norm in this network, and if these underpayments are replicated throughout the business month after month, we are quickly looking at millions of dollars of underpayments over the course of a few years,” Ms James said…..

Caltex Compliance Activity Report  (PDF 650.5KB)

Media Release, 2 March 2018:

The Fair Work Ombudsman has commenced legal action against the former franchisee of a 7-Eleven retail outlet in the Melbourne CBD for allegedly exploiting three international students through a cash-back scheme.

Facing Court are Xia Jing Qi Pty Ltd, which operated a 7-Eleven retail store on William Street until March 2017, and the store’s former manager, Ai Ling “Irene” Lin.

It is alleged that after 7-Eleven head office set up a high-tech payroll system in 2016 aimed at ensuring employees were paid lawful minimum rates, the company and Ms Lin tried to disguise underpayments of three employees by requiring them to pay back thousands of dollars in wages.  

The three employees were Chinese students, aged between 21 and 24, who were in Australia on student visas. Ms Lin, from Taiwan, was also in Australia on a student visa…..

Media Release, 27 Feb 2018:

The Fair Work Ombudsman has brought proceedings relating to redundancy entitlements, in a new legal action against services company Spotless Services Australia Limited for allegedly contravening workplace laws when it terminated the employment of three workers at Perth International Airport.

Media Release, 26 Feb 2018:

The operator of a Degani café in Melbourne’s north-east is facing Court after he allegedly used false records to conceal more than $12,000 in underpayments of staff, including teenagers and overseas workers.

Media Release, 21 Feb 2018:

The operators of a Melbourne restaurant have been hit with nearly $200,000 in penalties, after a Judge ruled they deliberately underpaid workers.

Media Release, 20 Feb 2018

A Perth security company has been penalised in Court for underpaying its guards more than $200,000, with a Judge saying the company’s claim that it thought overpaying in relation to minimum rates would “counteract” other rates of pay was a “lame excuse”.

Media Release, 16 Feb 2018:

The operator of a number of massage parlours in Adelaide who said he was “too busy and lazy” to keep proper records has been penalised for contraventions of record-keeping and pay slip laws, following legal action by the Fair Work Ombudsman.

Media Release, 15 Feb 2018:

The Fair Work Ombudsman has commenced legal action against a Bundaberg-based transport company for allegedly underpaying an employee more than $11,000 over a period of just nine months.

Media Release, 14 Feb 2018:

Cleaning contractors at 90 per cent of Woolworths’ Tasmanian supermarket sites were not complying with workplace laws, a Fair Work Ombudsman Inquiry has found.

Media Release, 13 Feb 2018:

Michael Patrick Pulis, a business operator who told his employee to “seriously, f**k off…” when the worker asked when he would receive money owed to him, has been penalised $21,500.

Judge Grant Riethmuller also penalised Mr Pulis’ company, Pulis Plumbing Pty Ltd, a further $100,000 after a plumber’s labourer, who was 20 years old at the time, was underpaid by $26,882 over just three months.

Judge Riethmuller described the conduct as “outrageous exploitation of a young person”, adding that the behaviour was “such to arouse much emotion” and “nothing short of avarice”.

The worker was underpaid when he was employed by Pulis Plumbing to perform work in the Melbourne, Geelong and Bendigoareas between September and December, 2014.

Media Release, 8 Feb 2018:

A Northern Territory refuge for women and children victims of domestic violence has back-paid 11 employees a total of more than $50,000, after intervention by the Fair Work Ombudsman.

Media Release, 6 Feb 2018:

The operator of a remote Northern Territory homestead is facing major penalties after underpaying 17 employees more than $23,000.

Media Release, 24 Jan 2018:

A sushi outlet operator and an accountant have been penalised almost $200,000 for their involvement in an unlawful internship program that exploited young overseas workers.

Media Release, 22 Jan 2018:

A Brisbane labour hire business will face court for allegedly underpaying 10 employees more than $14,000 through an unlawful unpaid work experience program.

Media Release, 17 Jan 2018:

Ten truck drivers who worked for an Adelaide transport company have been back-paid a total of $374,000 following successful legal action by the Fair Work Ombudsman.

Media Release, 16 Jan 2018:

The former manager of an Oliver Brown chocolate café outlet on the Gold Coast who was ‘seeing what he could get away with’ when he exploited overseas workers has been penalised $27,200.

Media Release, 12 Jan 2018:

The Fair Work Ombudsman recently assisted workers at four businesses in suburbs south east of Melbourne to recover almost $50,000 in unpaid wages and entitlements.

Media Release, 9 Jan 2018:

A Judge has penalised a repeat-offender Melbourne childcare operator $85,000 for her latest staff underpayments, saying she required a “sharp lesson” to make her appreciate her legal obligations.

Then there is the naked exploitation outlined in the November 2017 UNSW-UTS study, WAGE THEFT IN AUSTRALIA: Findings of the National Temporary Migrant Work Survey:

A substantial proportion of international students, backpackers and other temporary migrants were paid around half the legal minimum wage in Australia…..

Underpayment was widespread across numerous industries but was especially prevalent in food services, and especially severe in fruit and vegetable picking.

Two in five participants (38%) had their lowest paid job in cafes, restaurants and takeaway shops. This was a far greater proportion than for any other type of job….

Large-scale wage theft was prevalent across a range of industries, but the worst paid jobs were in fruit- and vegetable-picking and farm work….

The study confirms that wage theft is endemic among international students, backpackers and other temporary migrants in Australia. For a substantial number of temporary migrants, it is also severe.

Besides wages theft, employers have also developed a penchant for pocketing workers superannuation.

News.com.au, 30 August 2017:

 …it turns out that Australia’s compulsorary superannuation system has a great big hole in it — one worth $17 billion.

That’s how much super employers have dodged paying in the past eight years, according to new figures released by the ATO this week.

The ATO analysis found that employees had likely missed out on $2.85 billion of their super guarantee payments during the 2014/15 financial year, because employers dodged their obligations, with small business owners among the worst offenders.