On 4 September 2017, the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017, passed through the Senate, and after approval of its amendments by the House of Representatives, is now awaiting Royal Assent.
Upon receiving Royal Assent, most of the changes contained in the Bill will immediately become active provisions of the Fair Work Act 2009. The changes appear to be a governmental response to the Fair Work Ombudsman’s exposure of a number of major franchises with regard to franchisee underpayment of workers (and often overseas workers), which has garnered so much media attention in past 18 months.
Whilst the Act form of the Bill is yet to be published, the Fair Work Ombudsman has indicated that it will introduce the following changes to the Fair Work Act 2009:
- “increased penalties for ‘serious contraventions’ of workplace laws
- making it clear that employers can’t ask for ‘cashback’ from employees or prospective employees
- increased penalties for breaches of record-keeping and pay slip obligations
- employers who don’t meet record keeping or pay slip obligations and can’t show a reasonable excuse, will need to disprove wage claims made in a court (this is also referred to as a reverse onus of proof)
- stronger powers for [the Fair Work Ombudsman] to collect evidence in investigations
- new penalties for giving [the Fair Work Ombudsman] false or misleading information, or hindering or obstructing [their] investigations.”
It is expected that for serious and deliberate contraventions, employers may face penalties up to 10 times the current thresholds, meaning that penalties in the vicinity of $126,000 per offence for individuals, and $630,000 per offence for corporations, are possible. Further, under the changes, certain franchisors and holding companies may be held responsible for the conduct of their franchisees or subsidiaries where those entities do not comply with workplace laws. This change, will commence 6 weeks’ after Royal Assent of the Bill is confirmed.
Aitken Legal is able to assist all employers with enquiries in relation to wage obligations, as well as conducting a review of wage arrangements to ensure compliance.
Lisa Aitken is an Accredited Specialist in Workplace Relations Law and the Managing Director of Aitken Legal, a law firm specialising in employment law for employers. The information in this column is intended as a guide only. Liability limited by a scheme approved under professional standards legislation. www.aitkenlegal.com.au.