Business owners are generally aware of the workplace awards which govern the minimum entitlements of employees. The applicable award protects employees and educates employers on conditions like pay rates, leave entitlements and overtime.
But some sections are often overlooked by employers and may result in penalties. The Fair Work Commission does not have the power to enforce the orders that it can make under the Fair Work Act 2009 (Cth) (Fair Work Act). Therefore, the enforcement role is performed by the courts. If your matter proceeds to court, it may be in your best interest to seek legal advice.
One example of an often-overlooked section is the employee’s right to casual conversion, which exists in many awards as a requirement. This refers to the process by which a regular casual employee can convert to a permanent role if the right conditions are met. The key condition in the Restaurant Industry Award 2020 describes that the casual employee has worked a pattern of hours on an ongoing basis over the preceding 12 months. The employer must provide the casual employee with a copy of the provisions outlined in the respective clause of the award within the employee’s first 12 months of work.
The Fair Work Commission is clear on the repercussions of non-compliance:
The consequence of contravening the above may include a pecuniary penalty order. The courts may, on application, order a person to pay an appropriate pecuniary penalty if satisfied that the person has contravened a civil remedy provision. The penalty will be determined to be paid to either the Commonwealth, a particular organisation (including a Union), or a particular person.
A penalty unit is used to define the amount payable for pecuniary penalties. The maximum number of penalty units for the relevant contravention is set out in section 539 of the Fair Work Act. The maximum penalty for a body corporate is five times the maximum of an individual.
As an example, for contravening section 352 of the Fair Work Act (prohibiting the dismissal of an employee because of a temporary absence due to illness or injury), the maximum number of penalty units is 60.
From 1 July 2020, a penalty unit was $222.
- For an individual – 60 penalty units = $13,320
- For a body corporate – 5 x 60 penalty units = $66,600
It’s important to be aware of your obligations as an employer and employees should seek advice if they think something is not right. If you’re in need of any assistance with regard to employment law and how to best support your employees and your business, call Wadlow Solicitors on (08) 8212 2955 to schedule an appointment.