In what is a reminder for all employers, and particularly employers in the fuel retail industry, the former operator of a a fifth United Petroleum outlet is facing court for the underpayment of migrant workers and providing false or misleading pay slips.
Case Review
The sole trader and former commission agent for United Petroleum Leakes Rd Truganina is alleged to have knowingly provided the Fair Work Inspectors with false or misleading payslips that purported to show the employee was being paid correctly, when in fact the employe was receiving less than 50% of the base rate of pay.
In addition to the commission agent the former site manager is also facing court on these matters.
Backpay has been made for the underpayments.
Further pay slip and record-keeping breaches are also alleged, including that the operator failed to keep proper time-and-wages records and that the site manager was also involved in these breaches.
“Our experienced inspectors will detect any allegedly false pay slips and hold employers to account” explained Fair Work Ombudsman Anna Booth.
“We applaud the worker in this case for assisting the Fair Work Ombudsman’s investigation. Migrant workers have the same workplace rights in Australia as any other worker, regardless of their visa status, and anybody with concerns about their entitlements should contact the Fair Work Ombudsman for free assistance.”
Broader Compliance Action
The proceedings are the latest legal action by the Fair Work Ombudsman against former operators of United Petroleum-branded outlets, which follow a FWO investigation into the United Petroleum network commenced in response to concerns about non-compliance.
The investigation involved audits of 20 United Petroleum-branded outlets across Tasmania, Queensland, NSW, Victoria and South Australia.
Two of the legal actions were finalised in court in February this year, with the Fair Work Ombudsman securing $179,221 in penalties in relation to underpayments of workers at two United Petroleum-branded outlets in Tasmania.
The other two court cases are ongoing, with the FWO having filed litigations against Sai Enterprises Pty Ltd and Raman Monga, in relation to an SA outlet, and Navaneeth Gogikar in relation to a Queensland outlet.
One of the FWO’s investigations is 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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