38 | HUMAN RESOURCES
Get your house in order By Cath Grawe, HR Central Communications Officer
T
he Fair Work Ombudsman, has announced it will take a tough new stance on compliance as of 1st July, and businesses can expect to find themselves subject to greater scrutiny. What will the focus be? The Government has provided additional funding to Fair Work to be spent on enforcement, underpayments, educating vulnerable workers and influencing non-compliant industries. Areas of particular interest will be: l Fast food restaurants and cafes (FRAC) l Horticulture Industry l Supply chain risks l Franchisors l Sham contracting There will be a step up in compliance notices (a notice issued by a Fair Work Inspector which requires an employer to fix a breach of an Australian workplace law), if a business is involved in: l underpayments l breaches of awards and l breaches of the National Employment Standards. “If an employer [then] doesn’t comply with the terms of our compliance notice, the Fair Work Ombudsman won’t resile from taking them to court to seek penalties,” Sandra Parke, Fair Work Ombudsman said. In addition, Fair Work will also run social media awareness campaigns and intends to publicly name employers that break the law in order to enforce the message that it is not acceptable to underpay workers or deprive them of their entitlements. And even those bigger businesses doing the right thing and “selfreporting,’ should be prepared to make a “contrition payment” (a payment reflecting the seriousness of their contravening conduct), in addition to any back pay owing. But I don’t belong in any of these “areas of interest”
INSIDER 108 AUGUST / SEPTEMBER 2019
Ah, but you just might.. For example, you are liable if a contractor arrangement is a sham and contravenes the Fair Work Act, along with applicable awards and enterprise agreements. What is a sham contracting arrangement? This is when an employer tries to disguise an employee/employer relationship as an independent contracting arrangement, so they can avoid paying employee entitlements, superannuation or penalty rates and overtime. What proves that there is sham contracting in my business? If you are reported or investigated for: l Misrepresenting an employment relationship or a proposed employment arrangement as an independent contracting arrangement l Dismissing or threatening to dismiss an employee for engaging them as an independent contractor l Make a knowingly false statement to persuade or influence an employee to become an independent contractor What are the ramifications of entering into a sham contracting arrangement? You could be in the firing line for a financial penalty along the lines of l Up to $12,600 for individuals, per contravention; and l Up to $63,000 for a company, per contravention You may also be liable to compensate the worker for any employment benefits
they would have accrued, for example, annual leave. What if I have mistakenly categorised a worker as an independent contractor? The distinction between an employee and a contractor can be unclear sometimes. However, you may be liable regardless of whether the error is unintentional and regardless of whether the worker is happy with the arrangement. If in doubt as to how the relationship should be categorised this may be a good time to call the SSAA Helpdesk on 1300 01 SSAA (1300 017 722). l
Cath Grawe is the Chief Communications Officer at HR Central. When she is not writing, talking or representing all things HR Central, she can be found attached to the stove cooking for her 14-year-old 6ft son!
Advice. Awareness. Connect. Collaborate.
HR HELPDESK 1300 01 SSAA / 1300 017 722
www.selfstorage.org.au
