Most wage underpayments could be avoided if employers “meaningfully invested” in “regular auditing, proper calibrated payroll and record keeping, and supporting the teams who use them”, according to outgoing Fair Work Ombudsman Sandra Parker.
Reflecting on her five years as the FWO in an Australian Labour Law Association webinar this week, Parker said that although there have been some “positive signs of improvement”, the watchdog is hearing reports of payroll workers feeling burnt out and under-supported, and considering leaving their jobs, which suggests that employers need to invest more to prevent shortchanging their workers.
Parker said that if companies expect their payroll teams to fix years of accumulated issues on top of their usual workload, “that could just make the issue worse”.
“Systems are only as good as the information entered into them”, Parker says.
“Often it’s the human decision-making and actions that sit around those processes, which can have a huge impact on whether a business is compliant or is contravening its obligations.”
Parker referred to the “influx” of significant underpayments by large employers, including the Coles matter currently before the courts, which involves more than $100 million.
She told the ALLA audience that during her time as the FWO, the watchdog has shifted its focus from small and medium businesses to large corporates and universities, and from dispute resolution and mediation to compliance and enforcement.
When she took up the role in 2018, public interest shifted to wage theft and migrant workers, and “and there was pressure building for decisive action in response to pay scandals engulfing high profile employers, as probably best illustrated by the incredibly strong and ongoing reaction to celebrity chef George Calombaris underpaying his workers”.
At the time of the Calombaris wage theft scandal, Parker said the FWO was ill-equipped to handle such a large scale underpayment, and she quickly realised that it needed to “get equipped”.
She claimed that at that time the public viewed the FWO as “toothless” and saw that “unscrupulous employers seemed to be getting away with a slap on the wrist”.
In 2018, the FWO reviewed its “use of statutory compliance and enforcement tools and determined that we had been far too cautious in using compliance notices”, only issuing about 200 a year.
The FWO now uses compliance notices as its “default tool” for small and medium businesses in matters that don’t involve systemic or deliberate underpayments, evident in it having issued 2300 in 2021-22.
Compliance notices are “relatively simple to issue”, legally enforceable and “ensure all monies owed to workers are recovered accurately and quickly”.
“We use these because they give a business the opportunity to correct their mistakes, while also having the protection of immunity against further enforcement action from the FWO in that matter, by admitting the error and rectifying any underpayments,” Parker said.
When it comes to substantial underpayments by larger businesses, “we work with them” and generally negotiate enforceable undertakings, but for employers that “fail to cooperate or refuse to meet” their obligations, the watchdog “will continue to take them to court”.