The lastest in a series of cases alleging underpayment, fraudulent payslips and records, lying to the regulators and the forcing of cash backs have been launched by the Fair Work Commission against the former operator of a United service station in Brisbane. Within these serious allegations are clear warnings for all operators.
The Fair Work Ombudsman has commenced legal action against the former operator of a United Petroleum outlet in Brisbane, alleging he provided an Inspector with falsified records.
Facing court is Navaneeth Gogikar, who formerly operated a United Petroleum outlet at Sunnybank Hills as a sole trader.
The Fair Work Ombudsman requested time-and-wages records from Mr Gogikar as part of an investigation commenced in 2020.
It is alleged that in response, Mr Gogikar knowingly provided a Fair Work Inspector with false or misleading records and pay slips showing that he paid a young Indian international student he employed different rates of pay than was actually the case.
The regulator alleges that Mr Gogikar also failed to keep proper records for the worker and two other young Indian international students he employed and failed to issue the workers with pay slips.
Mr Gogikar employed the three workers, all visa holders then aged 23 to 24, as console operators for various periods between 2019 and 2021.
The alleged record-keeping failures prevented the Fair Work Ombudsman from obtaining the relevant time-and-wages evidence required to complete a time-and-wages audit.
Acting Fair Work Ombudsman Michael Campbell said the nature of the alleged contraventions meant that litigation was the appropriate response.
“The alleged knowing falsification of employment records is completely unacceptable conduct,” Mr Campbell said.
“It is also unacceptable for an employer’s record-keeping practices to be so poor that they prevent us from completing a proper assessment of what hours its employees have worked and whether it has paid its employees their full lawful entitlements.
“Employers should be aware that taking action to protect young and migrant workers is a priority for the Fair Work Ombudsman. Anybody with concerns about their entitlements should contact the Fair Work Ombudsman for free assistance.”
The FWO is seeking penalties in court. Mr Gogikar faces penalties of up to $12,600 or $13,320 per contravention for multiple alleged breaches of workplace laws.
A directions hearing is listed in the Federal Circuit and Family Court in Brisbane on 20 January 2025.
The FWO has separately filed three legal actions in the last year alleging breaches of workplace laws at three United Petroleum-branded outlets in Tasmania and South Australia. Those court proceedings are all ongoing.
Penalties Review
“These cases are subject to the old penalty regime, not the new Wage Theft Laws. Had the new laws applied the businesses would be facing $7.8 million in fines and individuals would be facing $1.5 million in fines, or equivalent jail time” explains ACAPMAs Elisha Radwanowski.
“As it stands under the old penalty regime the businesses are facing $66,000 per contravention and the individuals between $13,320-$16,500 per contravention. This is not an overall number, that is per contravention, which means per person, per payslip and per false record”, continued Elisha.
For more on the new Wage Theft Penalties see: https://acapmag.com.au/2023/12/maximum-10-year-jail-term-for-wage-theft/
Learnings for all businesses
“These cases came to the Fair Work Ombudsman’s attention as part of a proactive compliance program that the FWO was running throughout the United Petroleum network. That is to say that these cases were not the result of a complaint from any of the impacted staff, but rather were a result of concerns raised in the network generally”, explains Elisha.
“The FWO undertook proactive audits at 20 sites and uncovered a further $6,584 in underpayments to 20 workers, concerning which it issued Compliance Notices to the operators to pay back. It is understood that these notices were all complied with and all backpay was paid. An additional 5 operators were issued with cautions in regard to record keeping”, added Elisha.
It is understood that the FWO network investigations are ongoing.
“What every business needs to take away from this is a couple of pointed reminders, and a big dash of common sense. This is a clear reminder to all operators that even if your staff are happy with ‘arrangements’ onsite, the regulator can, and likely will, visit you soon and will respond to any non compliances”.
“It is also a reminder that wage rates are part of the compliance picture, but so are records, timing of payslips and award requriements, such as the communication of guaranteed hours and any changes to them. These requriements cannot be overlooked”, concluded Elisha.
Here to Help
ACAPMA members are reminded that ACAPMA has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can call on the advice and support of the ACAPMA Employment Professionals via employment@acapma.com.au .
HR Highlights are things to consider, implement and watch out for in your business.
They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au it’s free for members.
ACAPMA Membership is affordable at only $860 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Click here to learn more about ACAPMA Membership.
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