Late last week, the Fair Work Ombudsman (FWO) announced a new prosecution against a Brisbane builder while the Fair Work Commission flagged a substantial increase in claims from employees relating to dismissal, stand down and the JobKeeper programme.
Brisbane Builder facing the Federal Circuit Court
The FWO announced in a media release, on 8 May 2020, that it has commenced legal action in Brisbane’s Federal Circuit Court against Queensland-based contract carpentry business Althaus Homes Pty Ltd (Althaus), and its sole director, Mr Ronald Alexander Althaus.
The FWO alleges Althaus breached the Fair Work Act by failing to abide by a Compliance Notice requiring it to calculate and back-pay leave entitlements owed to a former full-time apprentice carpenter.
A Fair Work Inspector issued the Compliance Notice in November 2019 in response to a request for assistance from the employee of Althaus and after the inspector formed a belief that Althaus had contravened the Building and Construction General On-site Award 2010 and the Fair Work Act 2009 by failing to pay accrued but untaken annual leave, annual leave loading and personal leave.
The FWO alleges, in its action against Althaus, that in late September 2019, the apprentice carpenter took five days of personal leave because he was unwell, but he was allegedly not paid for four of those leave days. The FWO also alleges that the carpenter terminated his employment with Althaus during his absence. Althaus accepted the employee’s resignation, but allegedly did not pay any of the employee’s accrued but untaken paid annual leave (including an annual leave loading of 17.5 per cent), or the employee’s four days of owed personal leave.
The FWO is seeking a maximum penalty of up to $31,500 against Althaus, with its director also personally facing a maximum penalty of $6,300, in addition to full rectification of the underpayments, plus superannuation and interest.
FWO prosecuting where employers do not comply
The FWO pointed out in their media release that they will continue to enforce workplace laws in a proportionate manner during the COVID-19 pandemic. That includes taking businesses to court where lawful requests are not complied with.
Employers should be aware that FWO Inspectors can lawfully issue Compliance Notices if they believe that an employer has breached its workplace obligations. The FWO cautioned employers that they will take further actions if employers do not respond to a Compliance Notice, including escalating matters to the courts where an order can be made to pay penalties in addition to back-paying workers.
Claims to the Fair Work Commission increasing during COVID-19
The President of the Fair Work Commission (FWC) addressed a group of employment lawyers on 7 May, to explain the impacts of COVID-19 on the Australian employment jurisdiction. In his presentation, Justice Ross indicated that the FWC has experienced a significant increase in claims by employees since the start of COVID-19 related restrictions, regarding associated actions taken by employers.
The FWC has seen a 65% increase in unfair dismissal claims compared to the same time last year and has seen 5 times more employment related disputes filed in the month of April than they would normally deal with in a year. There has also been an approximately 20% increase in dismissal related general protection claims by employees.
The President indicated that in the current environment where employees face increased risk of long-term unemployment, conciliation of claims is becoming less successful and more claims are progressing to full hearings. In addition, the new, temporary powers the FWC has been granted in relation to the JobKeeper programme have already resulted in more than 1700 calls to the FWC , with 200 disputes filed.
Changes to how the FWC operates
President Ross explained that the restrictions imposed by the COVID-19 pandemic have brought changes to the way the FWC operates. He envisages that many of those changes will become permanent as Australia starts to respond to the easing of restrictions.
The FWC has already developed online information to assist parties to deal with COVID-19. The site includes information about a range of employment issues the FWC is dealing with in relation to COVID-19 as well as links to essential resources to assist employers and employees understand the laws relating to employment. In addition, the FWC has developed fact sheets and quizzes to assist parties and is developing smart forms to assist parties to better determine if the FWC has the jurisdiction to hear matters, saving parties time and expenses relating to claims that cannot be heard.
All manual filing of documents has been stopped and the FWC offices have been closed, moving all activities to remote access. Conciliations and hearings are being conducted remotely and where appropriate, members of the FWC are deciding matters on the paperwork submitted by parties.
Professional Advice is essential
From the increase in activity in the FWC and by the sorts of questions being raised in the public forum, it is clear that professional advice is essential at this time, when employers are making decisions about their businesses and employees. Many employers are finding JobKeeper and the Fair Work Act confusing and making decisions that could result in serious implications for them personally as well as their business.
If you are facing significant changes in your business because of COVID-19, before you make definite decisions, we encourage you to seek advice. Active Law is available throughout the COVID-19 pandemic and after, to assist you. You can reach us at firstname.lastname@example.org or on (07) 3160 0000.
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The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.