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Every business with employees must take all necessary steps to ensure they are compliant with Australia’s workplace laws. Navigating workplace laws and the many moving parts that make up the workplace compliance landscape can seem like a difficult task. As a business owner, it is important to know what you must comply with and how to be sure your business is complying. Businesses who are non-compliant can face both monetary penalties and reputational damage. This article will outline:

  • how businesses need to be compliant with workplace laws;
  • that compliance does not just involve the standard rates of pay; and
  • how to maintain your business can maintain its compliance.

Compliance

Compliance with Australian workplace laws is multifaceted. Employers under the national system of workplace laws must comply with the key legislation:

  • Fair Work Act 2009 (Cth); and
  • Fair Work Regulations 2009 (Cth)

They must also comply with:

  • the national employment standards (NES);
  • modern awards; and
  • enterprise agreements.

Within these regulations, there are specific elements of employment that employers must comply with. A failure to comply with legislation, NES or an award can result in your business facing penalties. As an employer, you need to familiarise yourself with the above mechanisms to ensure you are compliant with all aspects, not just rates of pay.

Rates of Pay

Compliance with the rates of pay owed to employees contains a number of elements. Under each modern award or agreement, there are additional considerations businesses need to make when processing payroll. These include:

  • the base rate of pay;
  • casual loadings;
  • weeknight, weekend or public holiday penalties;
  • overtime rates;
  • allowances (e.g. uniform, meals, car, equipment); and
  • any additional rates specific to an award or agreement.

As there are many considerations, you should calculate each employee’s additional rates and ensure they are included in each payroll run.

For example, an error could occur when an employee is rostered to work 11:00 am – 6:30 pm on a Monday. The modern award that applies to this employee sets a base rate of pay and then a higher rate of pay for hours worked between 6:00 pm and 11:00 pm. As such, this employee should be paid the base rate for the first seven hours of work and the additional 30 minutes of work at the relevant higher rate.

Small errors in calculating rates of pay can lead to significant underpayments and non-compliance. It is important to set up your payroll in such a way that all automatic inputs are double-checked. The system should also have clear processes to catch non-compliance issues before they arise.

Record Keeping

Compliance with the Fair Work Act and Regulations also includes compliance with your record-keeping obligations. Generally, you must maintain accurate records for seven years. 

The records you must keep include:

  • a variety of time and wage records (e.g. rosters, timesheets, overtime);
  • payslips;
  • accurate leave records; and
  • records relating to the starting or ending of employment.

The Fair Work Act and Regulations set out clear record-keeping obligations. As an employer, you should familiarise yourself with these obligations.

Setting up processes to record and save the kind of information you are required to keep assists in maintaining your compliance. However, it is important to continue to check the accuracy of the information that your computer systems compile. Computer system errors are not sufficient excuses for non-compliance.

Superannuation

The vast majority of Australian employees receive superannuation contributions. You must keep accurate and up to date records of all superannuation contributions owed to your employees. You must also keep records of your payment of these contributions into defined benefit funds.

Additionally, non-payment of accrued superannuation contributions may be investigated by the Australian Taxation Office (ATO).

Some awards or other agreements include additional terms relating to superannuation. As such, you must be familiar with your superannuation obligations under the relevant modern awards or agreements which apply to your employees.

Maintaining Compliance

Maintaining compliance involves setting your business up with the right tools to succeed. Often, implementing ongoing systems to identify compliance issues is one practical method businesses can use.

For example, accurate record keeping will assist your business in maintaining compliance. If you keep accurate records, you can audit your own records to self-check your compliance.

Maintaining compliance also means investing in appropriate resourcing. Although businesses of any size can face non-compliance, in circumstances where information is not thoroughly reviewed, this can result in errors.

A qualified legal team can also support your efforts to maintain compliance with workplace laws. You should be able to rely on your legal team to provide you with accurate, up to date advice which is commercially sound for your specific business. 

Risks of Non-Compliance

If you are non-compliant with your obligations as an employer and are investigated by the Fair Work Ombudsman, you can receive infringement notices containing fines. However, if your breaches of Australian workplace laws are more substantial, the Fair Work Ombudsman may choose to take the matter to court. If your business is taken to court, you may face substantial penalties. Employees can also claim back pay of underpaid wages up to six years after the amounts became due and payable.

Current or former employees may also make a complaint to the Fair Work Ombudsman if they believe that you are not compliant. This can lead to an investigation.

The Australian public does not look favourably upon businesses which are non-compliant with their employment obligations. As such, the reputational damage that your business may face if you are non-compliant may be significant.

Ignorance of your obligations as an employer is not a valid excuse for non-compliance. There are many resources available through both the Fair Work Ombudsman and Fair Work Commission, in addition to seeking out your own independent legal advice. 

Key Takeaways

Your business could face serious consequences if your business is non-compliant with workplace laws. You must ensure that you are meeting your requirements in relation to:

  • rates of pay;
  • record-keeping; and
  • superannuation.

You also must ensure that you continue to maintain this compliance, even when changes to your business or relevant laws occur. If you have any questions about your workplace legal compliance, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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