There is a requirement for employers to keep and retain accurate and complete records pertaining to the employment of staff. Failure to keep these records can trigger breach penalties in the millions of dollars under the new criminalised wage theft laws that are now in effect. All business operators should have a clear understanding of what employment records are, and how long they need to keep them for.
Wage Theft and Record Keeping Laws
The changes to the Fair Work Act that gave rise to the Wage Theft penalties and criminalisation also have implications on There are penalties that apply to breaches of record keeping requirements, including to the requirement to record and retain employment records of all categories.
These penalties are equal to the wage theft penalties; $ 1,565,000 and up to 10 years jail time for individuals and $7,825,000 for systematic breaches under the new criminalised wage theft penalty scheme that are now in place.
“All employers need to have a clear understanding of what an employment record is, what business documents and processes need to be updated to capture elements of employment records, and how long each type of record needs to be retained. It is really important that businesses understand that it is not as simple as x number of years after the date of the document, there is an element of ‘effect’ that changes the retention time” explains ACAPMAs Elisha Radwanowski
Understanding Record Keeping Requirements
The nuances of record keeping requriements are myriad and must be well understood.
ACAPMA has developed a Record Keeping Series of deep dives into all areas of record keeping requirements.
These detailed articles explore the nature of the records, the situation specific retention requriements and the practical considerations to demonstrating compliance onsite.
Importantly this series also explores what the business should do when they identify gaps in their records, as happens due to time, loss, system change and natural disaster…
What if there are gaps in records?
While every business strives for compliance at all times, the reality is that it is not uncommon, particularly in small businesses, for there to be oversights and gaps in compliance.
Oversights, errors and genuine mistakes are understood and are not the target of regulators when it comes to a penalty based approach. Regulators are much more interested in ensuring that the business corrects the issues and implements compliant systems to address any of these genuine unintended issues when they come to light.
“This assistance based approach is only available to businesses that are taking an active effort to understand and comply with their responsibilities. Ignorance of the requirements is no excuse or defence, so all businesses need to work on understanding the requirements and updating their systems where gaps are identified”, explains Elisha.
“What a business must NEVER do is create documents or falsify documents, if there are gaps then there are gaps. That will have to be accepted and systems updated. But there is no option to ‘go back’ and ‘create’ the missing records. If there is a need for modelling to be used to calculate entitlements or address a dispute then there are processes for that, and ACAPMA assists Members with those processes. But it is never ever ok to create records, accept the gaps, seek assistance and correct the systems”, cautions Elisha.
Generally gaps in the Fundamental Employment Records explored above, that record the employer, employee, employment status, employment instrument and employment instrument classification can be addressed by utilising a Confirmation of Employment process, which provides this information annually to all staff to ensure that there is no confusion and any unintended gaps in records are captured and covered by the annual process.
ACAPMA Record Keeping Series
- Part 1 – Role and Record Fundamentals
- Part 2 – Guaranteed Hours
- Part 3 – Actual Hours of Work
- Part 4 – Payslips
- Part 5 – Paid and Unpaid Leave
- Part 6 – Superannuation
- Part 7 – EBAs and IFAs
- Part 8 – Annualised Salaries
- Part 9 – Termination of Employment
- Part 10 – Sale and Transfer of Business
ACAPMA Employment Compliance Health Check for Fuel Retail and Transport
The Fair Work Ombudsman has made it clear that all employers, of all sizes, should be utilising structured audit programs to address and avoid underpayments. ACAPMA strongly encourages all members to take this call to heart and ensure that they are having a professional, independent and industry specific audit of compliance done regularly.
“ACAPMA offers members the ability to access fuel transport and fuel retail specific Assisted Compliance Audits, where ACAPMAs in house employment professionals review systems and outputs. The ACAPMA Assisted Compliance Audits provide members with more than just a list of non-compliances, these audits provide members with ‘assistance’ in the form of templates, resources and guidance, to address the non-compliances and to ‘fix’ the systems to avoid future non-compliances”, explains Elisha.
For more on the ACAPMA Assisted Compliance Audits see;
Here to help
ACAPMA members are reminded that they can access the advice support resources and representation of the ACAPMA Employment Professionals on this issue, or indeed any other employment issue, 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 contacting the ACAPMA Employment Professionals via employment@acapma.co.au its free for members. Click here to apply for ACAPMA Membership.
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