Details 

 Created: 11 June 2020

The Industrial Magistrate has ordered that the respondent, a financial services provider, pay the claimant a pecuniary penalty of $11,000 in respect of several contraventions of the Fair Work Act 2009 (Cth) (FWA).

Substantive decision

On 15 May 2020, the Industrial Magistrate found that the respondent contravened s 44 of the FWA in failing to pay the claimant untaken paid annual leave upon termination of employment, and in doing so, failed to comply with the National Employment Standards and contravened a civil remedy provision.

The respondent was ordered to pay $33,244 in accrued untaken annual leave.

Further, the respondent was found to have contravened s 535(1) and s 536(1) of the FWA in failing to keep and maintain certain prescribed records of employment and failing to provide pay slips during the course of the claimant’s employment, and contravened a civil remedy provision.

Supplementary Reasons for Decision

The claimant made an application for a pecuniary penalty pursuant to s 546(1) of the FWA in relation to the respondent’s failure to pay untaken annual leave, keep and maintain employment records, and provide payslips.

The claimant alleged that the respondent’s failure to keep and maintain the employment records and provide payslips went to the heart of the failure to regulate employment as contemplated by the National Employment Standards.

The claimant also contended that the respondent’s failure to provide pay slips extended beyond the individual and was a matter of public policy and public interest and supports a finding that it was a ‘serious contravention’.

The respondent argued that the contraventions were not deliberate but arose out of a lack of understanding and appreciation of certain obligations under the FWA.

Scaddan IM found that there was no evidence that the respondent either exploited the claimant or profited from its exploitation of the claimant. Scaddan IM also considered the small size of the respondent’s business, the fact that the respondent no longer employs employees and that the respondent did not attempt to hide any contraventions.

Scaddan IM found that the respondent’s contravention of s 535(1) and s 536(1) of the FWA was not a serious contravention and found that the following pecuniary penalties were proportional to the gravity of the respondent’s contravening conduct:

• $5,000 for the failure to pay untaken paid annual leave;
• $4,000 for failing to provide pay slips; and
• $2,000 for failing to keep and maintain employment records.

The substantive decision can be read here. 

The supplementary decision can be read here.