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New Fair Work Act reverse onus of proof laws put employers to proof

Employment law changes shifts onus of proof onto employers

Recent legislative changes in employment law mean that the reverse onus of proof now applies to breaches of the National Employment Standards, a modern award or an enterprise agreement as listed under section 557C of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017.

This Act applies to conduct after it came into effect on 15 September 2017 and includes provisions increasing penalties for ‘serious contraventions’ and banning employers for asking for ‘cashback.’

Sushi outlets allegedly breached workplace laws

The first court proceedings involving the new reverse onus of proof laws that require employers with inadequate records to disprove alleged underpayments was launched recently by the Fair Work Ombudsman (“FWO”) in the Federal Circuit Court against A & K Property Services, the operator of two fast food outlets called ‘Sushi 79’ and also against the company’s directors personally.

Fair Work inspectors audited the Sushi 79 outlets at Brassall in Ipswich and Currimundi, on the Sunshine Coast, in 2018 as part of its auditing activity. The FWO claims nine workers employed by the two outlets were underpaid by $19,467 in their entitlements under the Fast Food Industry Award 2010. It is alleged they were not paid the minimum ordinary hourly rates, weekend penalty rates, overtime rates or superannuation, and that their annual leave and personal leave entitlements were not accrued.

The FWO also alleges the company breached workplace laws by not issuing pay slips and did not keep proper time and wages records between October and December 2017.

Serious penalties may apply

The company faces penalties of up to $63,000 for each contravention. The directors face penalties of up to $12,600 for their alleged involvement in the leave contraventions and one director is facing penalties of up to $12,600 for his involvement in the record-keeping and pay slip breaches.

First case to apply the new laws

This is the first court case by the FWO using new reverse onus of proof laws. Under these laws, employers who do not meet record-keeping or pay slip obligations and cannot give a reasonable excuse must disprove allegations in wage claims made in court instead of the FWO having to prove there was a breach.

Read more about the case in the FWO’s media release which you can access by clicking here.


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Please note that this article was written by Margaret Miller, partner of Bell Legal Group, for information purposes only. It is not legal advice and should not be relied upon as such.