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2019 was the year of underpayments. Seemingly, every couple of weeks another big brand found itself in the underpayment spotlight.

In June, MAdE Establishment was revealed to have made a $200,000 contrition payment to the Commonwealth Consolidated Fund after self-reporting an 8-year, $7.8 million underpayment.

Since then, the likes of Bunnings, Super Retail Group (the owner of big name retailers including Rebel Sport, BCF and Super Cheap Auto), Wesfarmers (the owners of Blackwoods, Workwear Group, Coregas and Greencap), Michael Hill Jewellers, Top Juice, and Sunglass Hut have also come under fire for underpayments.

The ongoing scandal was topped off when Woolworths admitted it had underpaid nearly 6000 staff as much as $300 million.

The subsequent national conversation around underpayments has spawned its own buzzword:  wage theft.

The Federal Government has publicly backed stronger action on underpayment: ‘10 years’ jail for wage theft: (Attorney General Christian) Porter puts hefty penalties on the table’, read one headline in the Sydney Morning Herald in late September.

Interestingly, that article is also tagged with the term ‘Wage Scandal’ and has its own subsequent news category – apparently the Australian media is recognising the resonance the issue is having with the broader Australian public.

Perhaps unsurprisingly, unions have come out swinging against big business for ’wage theft’, as it were. Sally McManus, secretary of the Australian Council of Trade Unions – the peak worker representative body – described ‘wage theft’ as a ‘business model’ as result of workplace laws becoming “weaker and weaker since 1996”, referring to the Workplace Relations Act 1996 and the ‘WorkChoices’ amendments, which were passed in 2006.

However, Ed Mallett, Managing Director of Employsure, says, in many cases, underpayment is attributable to the complexity of the workplace relations system itself – and not necessarily the product of any malicious intent.

“We do not believe the majority of hard-working small business owners are ‘thieves’. Instead, they are stuck on a regulation merry-go-round and they can find it hard to navigate,” Mr Mallett says.

“There are more than 120 Modern Awards in the Australian workplace relations system. For some businesses, even small ones, they may have to comply with more than one Award.

“It’s not just the minimum wage or award rate that’s the most difficult part, but many employers struggle with the myriad entitlements, and varying rates throughout the time of week and time of day.

The public struggles many large brands, who have dedicated HR departments, had last with underpayments drives home to Mr Mallett the extra difficulties small businesses face with complying with workplace relations regulations.

“Many large companies were reported to have underpaid their staff last year, The businesses would have dedicated HR departments, and they are still making these errors.

“Imagine, what this system is like for a small business owner. Not only do they have to deal with day to day business, they also have to juggle pay rates, stock, inventory, supply chain, rostering, marketing, and customer service.”

“It’s honest errors and a lack of understanding of entitlements that puts smaller businesses at risk.

“According to our own research, the overwhelming view from small businesses owners is that the legislation is far too complicated.

“Just think about this – if big businesses struggle to understand the Fair Work Act with their well-resourced HR departments, how could anyone expect small businesses to get it right?”

About Employsure

Employsure is Australia and New Zealand’s leading outsourced HR solution for over 25,000 small and medium sized businesses; providing customised expert advice, documentation, and protection to manage their workplace with confidence. Get in touch today for more information on Employsure’s employment relations and health and safety solutions.

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Changes to the Building and Construction Award, previously scheduled to commence on 1 January 2020, have now been postponed to 1 July 2020.

The Fair Work Commission made the announcement on Thursday 19 December.

This means that the previously communicated changes to the Building and Construction Award will not have to be implemented until the newly arranged commencement date of 1 July 2020.

The changes are as follows:

The majority of disability allowances have been deleted from the award, to be replaced by an enhanced industry allowance. This enhanced industry allowance will also replace the existing industry and special allowance in the award.

What’s Changed?

The enhanced industry allowance will be as follows:

  • General building and construction industry, civil construction industry and metal and engineering construction industry—an allowance of 6% of the weekly standard rate;
  • Residential building and construction industry—an allowance of 8% of the weekly standard rate.

What Do You Need To Do?

Implement the updated allowance increases on the first pay period on or after 1 July 2020. Employsure clients will receive updated Pay Rate Schedules before the commencement date.

We’re Here To Help

If you need help understanding or implementing these changes, please contact our Advice Line on 1300 651 415 or email [email protected]

Workman In Hard Hat And Safety Gear Looking Up At Scaffold

*on Thursday 19 December the Fair Work Commission announced that the commencement date of the following changes has been postponed to 1 July 2020

Changes to the Building & Construction Award

The Christmas and New Year period is a time for festivities and relaxation for many. But this year, businesses who have employees under the Building & Construction Award have to ensure they’re on the ball, as there are changes coming into effect on 1 January 2020.

Specifically, the changes are allowances. The majority of disability allowances have been deleted from the award, to be replaced by an enhanced industry allowance. This enhanced industry allowance will also replace the existing industry and special allowance in the award.

What’s Changed?

The enhanced industry allowance will be as follows:

  1. General building and construction industry, civil construction industry and metal and engineering construction industry—an allowance of 6% of the weekly standard rate;
  2. Residential building and construction industry—an allowance of 8% of the weekly standard rate.

What Do You Need To Do?

Implement the updated allowance increases. Employsure clients will receive updated Pay Rate Schedules in due course. If you are not a client, please feel to get in contact with us.

We’re Here To Help

If you need help understanding or implementing these changes, please contact our Advice Line on 1300 651 415 or email [email protected]


The Fair Work Ombudsman recovered more than $300,000 in back payments and over $30,000 in fines after it conducted an audit of businesses trendy areas in Sydney, Melbourne, Adelaide and Brisbane.

Targeting businesses “popular cheap eat districts” of Newtown in Sydney, Northbridge in Perth, and various inner-city streets in Melbourne (e.g. Sydney Road and Lygon Street) and Adelaide (e.g. Rundle Street and The Parade), in a press release issued late last week the FWO says it found a non-compliance rate of 75% in its blitz.

On top of finding some businesses failing to pay the minimum hourly rate and penalty, the FWO also found some businesses failed to provide proper pay slips.

With the FWO stating earlier in 2019 that one of its priorities for the 2019/20 financial year would be the café, restaurant and fast food sector, this year so far has seen many big brands face underpayment scrutiny.

George Calombaris’ MAdE Establishment, Neil Perry’s Rockpool Establishment, Top Juice, a franchisor of Jamaica Blue and Muffin Break, and franchises of Crust Pizza, Coffee Club and Subway, amongst others, have all found themselves in the media’s underpayment scandal spotlight so far this year.

The Fair Work Ombudsman, Sandra Parker, voiced her disappointment at again reporting widespread non-compliance and put businesses on notice.

“It is disappointing that we uncovered such large amounts of underpayments in popular food districts across Australia, with some of the community’s most vulnerable workers underpaid, but unfortunately it’s not surprising,” Ms Parker said.

“Many of the breaches we saw resulted from businesses not understanding their lawful obligations to their workers. This is no excuse for underpaying employees, so I’d suggest that employers invest in workplace law compliance before we come knocking.

“Reducing worker exploitation in the fast food, restaurant and cafe sectors is a priority for the Fair Work Ombudsman. We’re working hard to change the culture of underpayment across this sector and businesses are firmly on notice.”

The Fair Work Ombudsman also announced that it is in the process of inspecting businesses, in a similar manner to this blitz, in inner-city Hobart in the coming weeks.


The Israel Folau saga has ended as the out-of-work footballer reached an out-of-court settlement with Rugby Australia.

After a marathon 14-hour negotiation, the two parties resolved their differences and issued a joint statement.

“While it was not Rugby Australia’s intention, Rugby Australia acknowledges and apologises for any hurt or harm caused to the Folaus,” the statement said according to the Sydney Morning Herald.

“Similarly, Mr Folau did not intend to hurt or harm the game of rugby and acknowledges and apologises for any hurt or harm caused.”

According to reports, the settlement figure is as high as $8 million. However, on Twitter Raelene Castle, CEO of Rugby Australia, dismissed such figures as “wildly inaccurate”; in his weekly column, the Sydney Morning Herald’s chief sports writer Andrew Webster wrote that the figure is “likely to be between $2.5 to $5 million”.

Meanwhile, RMIT’s professor of workplace law Andrew Forsyth said that given the $14 million Folau and his legal team were asking for, according to court documents, it was likely that the settlement he received was high.

“Given that he upped his claim to $14 million last week you’d have to expect that a significant amount of money has been paid,” Professor Forsyth said.

“It should also been borne in mind that although Rugby Australia apologised, they actually apologised to each other. That’s a mutually agreed conclusion, so nothing much should be drawn from that.”

Castle has also defended her and Rugby Australia’s decision to reach a settlement with Folau.

”No we didn’t get it wrong. At the end of the day we stood up for the values of Rugby Australia,” Castle said, according to the SMH.

“The person that chose to breach the code of conduct was found guilty and his contract was ultimately terminated because of that. That stands up and continues to say, ‘This is an inclusive sport.’

“Behaviour and commentary of this type is not acceptable in our sport and everybody in rugby needs to be included, regardless of what their background is.”

Folau on the other hand declared himself “extremely pleased” at reaching a settlement.

“With today’s acknowledgment and apology by Rugby Australia, we have been vindicated and can now move on with our lives to focus on our faith and our family,” Folau said.

Israel Folau was controversially dismissed by Rugby Australia earlier this year, after the footballer published a post on Instagram that condemned homosexuals, and others, to hell if they did not repent.

Claiming that his dismissal discriminated on his religious beliefs, Folau sought recourse through the dismissal tribunal process set up as a function of the Rugby Union Players’ Association’s workplace agreement with Rugby Australia.

Not finding success in the tribunal, Folau proceeded to commence an unlawful termination claim. The parties were directed to attend a mediation by the Court.

New Public Holiday

 The Queensland government have announced a part-day public holiday on Christmas Eve, 24 December (from 6pm-midnight). This public holiday will commence from 2019 onwards.

What’s Changed?

Businesses in Queensland must ensure that they apply the correct rates to any employees who are working after 6.00pm on 24 December.

If you have employees on salaries or loaded hourly rates, you should review the current arrangements to ensure that the salary is sufficient to incorporate any additional costs.

We’re Here To Help

 If you need help understanding or implementing these changes, please contact our Advice Line on 1300 651 415 or email [email protected]

Employment Modern Awards

The Modern Awards established by the Fair Work Act will be evaluated next year with a focus on a less complex structure of the new workplace relations reforms, but according to the Government, businesses should not be anticipating any drastic changes.

In an upcoming discussion paper on workplace reform, the Minister for Industrial Relations Christian Porter noted that industry awards would be considered, and that there would be a review how small businesses are affected by the complex system.

“The awards system is clearly something that a range of people think could have some improvements in,” Mr Porter said according to The Australian Financial Review.

“There are some awards – those particularly that govern workers in hospitality and retail and restaurants that are very complicated – that have multiple pay points, sometimes more than 50 pay points in a single award.

“We will have sort of a discussion paper around awards next year, but no one should be over-expectant or have rosy glasses on about the award system in terms of the capacity to simplify.”

The statements from Mr Porter came a day after Scott Morrison spoke about wanting to make the award system less complex and reduce the “clutter”.

Earlier this month, supermarket giant Woolworths, self-reported to have underpaid 5,700 staff up to $300 million over a nine-year period, which followed other underpayment by other big businesses such as Pizza Hut, 7/11, Subway and Westfarmers.

If paying employers correctly is something that big businesses can’t get right, retailers are arguing how small and medium size businesses are meant to.

Although Mr Porter mentioned there had already been a big overhaul in modernising and reducing hundreds of awards down to just 122, he agreed that the system still had its complications and further improvements could be made.

He added however, that big businesses should be sophisticated enough to navigate the existing award system, and rejected that the complexity was a result of underpayment of employees.

The Minister mentioned that making the landscape “easier to navigate for small businesses” would be his primary focus, and that looking at how the Fair Work Ombudsman handles navigating small businesses was one pathway.

Men are still out-earning women by an average of $25,679 a year, with the number of female CEOs and board members remaining static according to new data.

The Workplace Gender Equality Agency scorecard released on Tuesday revealed the number of females in top positions counted for 17.1 per cent, and female representation on boards to be at 26.8 per cent – fluctuating only 2 per cent within the past six years.

The annual report also showed barely any movement in the health pay gap, which is Australia’s most heavily female dominated industry, which declined 0.2pp but remained steadily in favour of the other sex.

Although there was an increase in employer action when it comes to pay equity, which saw a rise by 3.1 per cent, almost 40 per cent of those employers took no nation when it came to closing the gap.

The best result of the six-year dataset came from access to parental leave, which saw almost 50 per cent of employers now offered to paid carer’s leave for the primary carer as well as an increase in paid carer’s leave for the secondary carer.

In her final year in the role as director of the Workplace Gender Equality agency, Libby Lyons expressed her disappointment with the overall scorecard, and said that organisations were losing interest in equality.

“To me, the data is telling me employers either don’t believe that addressing gender equality will help their business, or they’ve just got a bit of fatigue about it – and anecdotally I’m hearing that.

“Employers are saying ‘we’ve got our policy in place and we’re doing okay. We’ve put resources into it but now we’re going to focus on something else’,” Ms Lyons said according to the Australian Financial Review.

The director also said that increasing the pay and number of women in workplaces would improve the national economy as well as business profits and that it was “a smart thing to do”.

The figures from the annual report are based off data provided to the agency by employers from the non-public sector who have over 100 employees, and also takes into account bonuses, superannuation as well as other allowances.

Workplace fatalities are continuing to decline, with only 1.1 worker fatalities per 100,000 workers, according to the most recent report release by Safe Work Australia.

The Work-related Traumatic Injury Fatalities Australia 2018 Report also reveals that three industry groupings are responsible for more than two-thirds of worker fatalities, and that vehicle collisions alone count for 44 out of the 144 fatalities that occurred last year.

Key findings of worker fatalities in 2018 include:

  • Fatality rate of 1.1 per 100,000 workers
  • 144 workers were fatally injured at work
  • 94 per cent of workers killed were men
  • Workers aged 55 to 64 years had the highest number of fatalities
  • The proportion of young worker fatalities aged 25 years and younger has increased from 8 per cent in 2017, to 13 per cent in 2018

The report also showed that 69 per cent of fatalities were from three industries, with 38 per cent being from transport, postal and warehousing, 37 per cent from agriculture, forestry and fishing and 24 per cent from construction.

Fatalities relating to vehicles were also 89 percent of the fatalities recorded, and 77 per cent of bystander fatalities were due to a vehicle collision.

In terms of location, almost half of fatalities occurred in New South Wales, followed by 39 per cent in Queensland and 32 per cent in Victoria.

In total, the 144 worker fatalities in 2018 is the lowest recorded number since the series began in 2003. In 2007 when the highest number of fatalities were recorded, there was almost a third of the rate recorded.

“While the downward trend in work-related fatalities is encouraging, it is not a cause for celebration. Every work-related fatality is a tragedy, and there’s a lot more work to be done” Safe Work Australia CEO, Michelle Baxter said according to Safe Work Australia.

There are a number of steps an employer can take to ensure a safe workplace, which include proper training of all employees, identifying hazards, assessing and controlling risks as well as reviewing control measures.

It is important to note that workplace health and safety obligations for employers vary widely depending on the type of work conducted by the business.

Creating a safe and healthy workplace never stops, and there is always room to review and evaluate regularly to always try and improve.


The Fair Work Commission has underlined a car manufacturer’s “astounding” lack of HR specialists and has found the company to have unfairly dismissed a service advisor for not meeting customer survey score standards.

Fair Work Commissioner Jennifer Hunt heard that in May 2017, the employee began working at Audi Indooroopilly where his responsibilities included “greeting customers, providing quotes, liaising with technicians and taking payments,” according to Workplace Express.

The base salary for the service advisor was $47,000 plus super, and a commission of no more than one per cent a month if the employee met the targets that were linked to customer satisfaction ratings.

At the centre of the dismissal was an Audi Australia survey that provides customer feedback in regards to their experience at the dealerships, and measures the performance of its service providers.

A score above 4.5 out of five for the five-question survey, which ranked the customer service employee’s Customer Experience Marker, from one (worst) to five (best), entitled employees to a bonus of up to $600 for that month.

The service advisor’s scores ranged between 4.1 and 4.5 and in February this year, Audi Indooroopilly issued the employee with a first and final warning in regards to his results, notifying him that he was in the bottom half of service advisors in Audi Australia.

The employee protested that relying on the optional customer survey to measure someone’s performance was not something that Audi Indooroopilly should have relied on and noted it in his unfair dismissal claim.

The Commissioner agreed with the employee and acknowledged the “inherent unfairness” of the situation.

“Simply because an employee slips into the bottom half of all [Audi Australia] service advisors, it does not mean that they are not performing their role satisfactorily,” Commissioner Hunt said according to Workplace Express.

“If this was, as I understand it to be, a position supported by Audi Australia given the (service advisor’s) termination letter was prepared by the central HR support person, and the submissions supported by Audi Australia during the determinative conference, it could have the effect of the bottom half of service advisors within Audi Australia being considered to be performing unsatisfactorily.

“Instead of endeavouring to bring up the levels of service, it was determined that being in the bottom half of all service advisors was unacceptable, despite mathematically, half of the service advisors having to fall within the bottom half of all service advisors,” Commissioner Hunt said.

The Commissioner also found that the service advisor was not given the opportunity to respond to the reason for his termination and in finding the dismissal claim unfair, ordered Audi Indooroopilly to pay the service advisor $9134 plus super.


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