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The Fair Work Ombudsman (FWO) has commenced the first legal action utilising new reverse onus of proof laws that require employers to disprove underpayment allegations in Court when they have failed to keep adequate time and wages records or issue pay slips.

The Case

The FWO has instituted proceedings in the Federal Circuit Court against A & K Property Services Pty Ltd, which operates two ‘Sushi 79’ fast food outlets in Queensland, and company directors, Yong Sim Kim, Hyn Jun Kang and Jungpyo Lee.

The FWO alleges that A & K Property Services breached workplace laws by failing to keep proper time and wages records, and failed to issue pay slips to employees.

The FWO also alleges that nine workers were underpaid a total of $19,467 in entitlements under the Fast Food Industry Award 2010.

The workers were allegedly underpaid minimum ordinary hourly rates, weekend penalty rates and overtime rates. Allegedly, the employees were also not provided with superannuation, and their annual leave and personal leave entitlements were not accrued.

“Employers should be on notice that this loophole is now closed and the Fair Work Ombudsman will make full use of the new laws to protect vulnerable workers. Businesses who don’t meet record-keeping or pay slip obligations and can’t give a reasonable excuse need to disprove allegations of underpayments in Court,”

A & K Property Services faces penalties of up to $63,000 per contravention.

Mr Kim, Mr Kang and Mr Lee are facing penalties of up to $12,600 for their alleged involvement in the leave contraventions and, in addition to those contraventions, Mr Kim is facing penalties of up to $12,600 for his involvement in the record-keeping and pay slip breaches.

The matter is listed for a directions hearing in the Federal Circuit Court in Brisbane on 25 March 2019.

Increased Business Risk

If this case is successful it will make it a lot easier to prosecute businesses who fail to keep adequate time and wages records.

Businesses will also be forced to disprove any allegations of underpayments in Court more often. As the reverse onus of proof will be placed on them.

It is essential that you keep adequate time and wages records, in a HR system such as Better HR, to minimise the risk of prosecutions or penalties.

Are You At Risk?

  • Do you keep accurate time and wages records?
  • Do you issue payslips within one working day?
  • Can you prove you paid workers correctly?

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