Enforceable undertakings to recover underpayments of $142k

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Enforceable undertakings to recover underpayments of $142k

The Fair Work Ombudsman had entered into an enforceable undertaking with a transport company based in South Australia’s Port Pirie that inadvertently underpaid 26 employees a total of $142,609.

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The Fair Work Ombudsman had entered into an enforceable undertaking with a transport company based in South Australia’s Port Pirie that inadvertently underpaid 26 employees a total of $142,609.
 
As part of the Ombudsman’s National Road Transport Industry Campaign in 2008, inspectors were randomly auditing Irvine’s Transport when they discovered that its employees — mostly casual drivers and yard hands — had been underpaid between March 2006 and January 2009.
 
It was found that Irvine’s Transport had paid its workers a flat rate of pay for all hours worked — resulting in underpayment of penalty rates for weekends, public holidays and work performed outside ordinary hours — and that it failed to make a minimum payment of four hours to casual workers.
 
As a result, underpayments ranged from as little as $45 to $29,174, with other significant amounts including $16,075, $14,218, $9764, $9069 and $7925.
 
While the Ombudsman accepted that the underpayments were inadvertent rather than deliberate non-compliance, the authority entered into an enforceable undertaking with the company as an alternative to litigation.
 
As part of the enforceable undertaking, Irvine’s Transport is required to:
  • ‘Back-pay all outstanding entitlements totalling $142,609.96 to 26 workers in monthly instalments by no later than December 1, 2011,
  • Write to affected current and former staff apologising for the error and giving a commitment not to breach workplace laws in future,
  • Conduct a paid meeting for existing employees affected by the error to explain its rectification of the underpayments,
  • Provide evidence in writing to the Fair Work Ombudsman that it has put systems and processes in place to ensure ongoing compliance,
  • Place a public notice in the Port Pirie Recorder advising the community of the error and offering “sincere regret and apologies” for the breaches,
  • Prepare a workplace relations compliance manual for distribution to company managers and staff,
  • Ensure that company principals Gregory John Irvine and Scott David Irvine both attend an accredited training course, and
  • Report to the Fair Work Ombudsman at the end of the financial year for the next three years on staff classifications and their wages rates and entitlements and details of any proactive compliance measures implemented during the course of the year.’
 
FWO Executive Director Michael Campbell said enforceable undertakings are a mechanism by which the Agency can still achieve strong outcomes against wrong-doers without civil penalty proceedings.
 
 
Ombudsman ‘encouraged’ by compliance levels on NSW South Coast
 
Meanwhile, the Ombudsman is pleased that a majority of businesses along the NSW South Coast are complying with workplace laws.
 
During a recent auditing campaign, Fair Work inspectors scrutinised the record-keeping and pay slip practices of 137 businesses across Nowra, Sussex Inlet, Milton, Ulladulla, Batemans Bay, Moruya, Narooma and Bega, but found just 19 (14%) with contraventions.
 
Nowra, Batemans Bay and Bega each had four employers with breaches, while there were two each in Sussex Inlet, Milton and Ulladulla, and one in Moruya.
 
Campbell said inspectors assisted the employers to voluntarily rectify their breaches and further action (such as the issuing of infringement notices) was not required.
 
‘Inspectors provided businesses with tools such as templates for time-and-wages records and pay slips to help them ensure ongoing compliance,’ he said.
 
‘The level of compliance and co-operation from businesses was encouraging.’
 
Employers from a range of industries were audited but there was a focus on the accommodation industry, which is a regular source of workplace complaints.
 
Campbell said that inspectors also provided employers with tips on how to ensure they comply with the National Employment Standards and Modern Awards.
 
Further information
 
The Fair Work website contains useful resources for employers including pay slip and record-keeping templates, an ‘Award Finder’ search tool that enables employers to find the Modern Award that applies to their business and a ‘How To Guide’ on the process for transitioning from Pre-Modern Awards to Modern Awards.
 
The website also contains a self-audit checklist, template letters and fact sheets on topics including leave, public holidays, and family-friendly workplaces.
 
The ‘Industries’ section on the Ombudsman’s website provides information specifically tailored for employers and workers in the hair and beauty, clerical, retail, cleaning, security and horticulture industries.
 
Employers or employees seeking assistance should contact the Fair Work Infoline on 13 13 94. For translations, phone 13 14 50.
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