In the first of the cases using the reverse onus of proof under the Vulnerable Workers provisions, a small, family run business has received double the penalty in a wage underpayment dispute because they did not keep timesheet or roster records. This doubling of the penalties occurred despite the presiding Justice acknowledging that the employees claims lacked credibility.
In the initial hearing the court noted that the employees
both lacked credibility in their claims of the hours that they worked and were
not remunerated for. The preciding Justice accepting that, despite their
claims they likely worked no more than 18 hours per week. As such the
claim for additional hours was rejected. However, in a recent appeal it
was found that while the employees claims lacked credibility, the reverse onus
of proof under section 557C of the Fair Work Act 2009, placed all of the burden
to prove that the claims were false on the business, and due to the businesses
lack of timesheet or rostering records, a simple statement of the lack of
credibility of the employees (even when acknowledged by the courts) does not
rise to the level of “proof” that the claims were incorrect. As such the
finding was made in favour of the employees resulting in a doubling of the
penalty on the small family business to $21,314.
discussing the reverse burden of proof Justice Colvin outlined that the
provision requires detailed record-keeping as an employer obligation and
“states expressly that the defaulting employer bears the burden of
disproving the allegation”, of the employee.
the evidence adduced by [the business] did not rise to the level necessary, on
the balance of probabilities, to affirmatively prove that [the cook] and [the
guest services worker] did not work the hours that they claimed, then the
effect of s557C was that those claims were to be upheld,” Justice Colvin
that context, it was not enough that there may be reasons to question the
credibility of the account given by [the cook] and [the guest services worker].
if their evidence was not accepted, [the business] would not have thereby
disproved the allegation made by them as to the hours that they worked.”
The take-home for businesses of this case is clear, record
keeping is important. It is not simply enough to pay staff correctly for
the hours they work. It is essential that the record of those hours be
retained, or a case such as this could arise where an employee claims that they
worked an additional 30h a week that they did not receive payment for. If
the business does not have rosters or timesheets showing the actual times
worked, then it will be almost impossible to prove that the claims of the
employee are false and as such they will, even if they defy logic or lack
credibility, be upheld, and penalties awarded.