Hefty fine for lack of records

The Federal Circuit Court recently imposed penalties of more than $120,000 on a company and its director for underpaying an apprentice. This decision highlights last year's passage of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017.

During a three-month trial period with a Melbourne business, the second-year apprentice plumber worked more than 200 hours overtime, for which he was paid less than $2000.

After being offered another three-month trial rather than a permanent position, he left the company and requested the outstanding overtime only to be told "Stop doing my head in" and "Seriously, <expletive>…When I'm ready".

The employer admitted the contraventions and paid the apprentice $26,882 after the Fair Work Ombudsman became involved.

Judge Riethmuller noted that "whilst the admissions were made, the timesheets were never produced to the court or the FWO, leaving the office to rely upon the [apprentice's] records of the hours worked".

"Fortunately, the [apprentice] did keep a record of his own hours as a result of good advice he had received from his uncle and friends," said the judge.

Section 557C of the amended Protecting Vulnerable Workers legislation firmly places the onus on employers in such circumstances.

The Judge said "In short, in future if the employer fails to keep timesheets and provide payslips the employer has the burden of disproving an employee's claim about hours worked and payments made".

"In a case such as this, I would have been prepared to accept even generalised estimates from the employee as to his hours."

The Judge noted that there were no indications that financial stress played a part in the company's failure to pay the apprentice his due. "It appears that the conduct in question was nothing short of avarice," said the judge.

This decision serves as a warning to all employers to comply with record keeping requirements.

[Fair Work Ombudsman v Pulis Plumbing Pty Ltd & Anor [2017] FCCA 3013 (8 December 2017)]

For more information on employers’ record keeping obligations and minimum rates of pay, call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email  necalegalwa@ecawa.org.au.