As business returns to a degree of normalcy and COVID recedes as the issue, wage compliance, a hot-button issue in the latter half of 2019, is likely to return to the fore.

Back then, it had become a critical issue for management teams and boards to ensure that they were auditing and assessing their wage and minimum entitlement obligations correctly. A range of prominent businesses and large corporates had been identified as having underpaid workers – in the main not because of any deliberate desire to do the wrong thing but because of inadvertence, a lack of good process or a genuine misunderstanding about the complex system of workplace regulation. Rightfully, no business wanted to be the next front-page story about wage underpayment, especially as the term “wage theft” became a political and public relations lightning rod that threatened brands and reputations – not to mention the potential for significant financial penalties.

Then the COVID crisis arrived, and the focus shifted rapidly. Not just for businesses but also for the Fair Work Ombudsman (FWO), the regulator who has within its remit various compliance activities, including bringing Court proceedings to ensure employers comply with workplace laws. The FWO identified that although it would continue to enforce the law, supporting businesses through the pandemic was its top priority. There was also a limitation on the FWO’s investigative capability because of COVID-induced health and safety risks.

But the issue never went away for the FWO. Recently, the Fair Work Ombudsman, Sandra Parker, identified that the number of large corporations under investigation for underpayments had risen to 70, and additional staff were being assigned to this task. So, with this in mind, employers need to refocus their attention on wage compliance.

The conundrum of compliance

As my colleague Steven Amendola has written in the Australian, if you’d ever harboured dreams of opening your own inner city cocktail bar, “good luck” figuring out under what Award you should pay staff, to say nothing of navigating the pages and pages of terms and conditions (assuming you picked the right Award). Our system of regulation is unbelievably complex and the intersection and overlap of the Award system is but one challenge.

Our system of award regulation was derived from a process in which I was heavily involved from 2008-09. Called “Award Modernisation”, the task was to reduce more than 1500 pre-modern awards down to a more manageable number – we arrived at 121. It was a herculean undertaking, and while it successfully reduced some of the administrative complexity created by the vast number of pre-modernised awards, it created its own new and “improved” complexity by establishing a modern award system that covered employers and employees based on descriptions of industries and occupations. It accepted that this new system would create overlap between awards – and then sought to fashion a solution by requiring employers to assess the “most appropriate” award for an individual employee having regard to the nature of their work and where it was performed.

The result? The determination of Award coverage was not just a problem that confounded smaller employers, but it also has at various times caused complexity for large and well-resourced corporate employers.

Add to that the reality that the Fair Work Commission, the body responsible for maintaining and amending the modern Award system, has been reviewing the system since 2014. This has seen many variations to Awards, including the establishment of detailed reconciliation and drafting obligations for annual salary arrangements in some Awards, and the expansion of the coverage of the “Miscellaneous Award”, an Award that requires an employer to consider and know whether the nature or seniority of the employee’s role, or the work they perform has traditionally been covered by an Award in order to determine its application to any employees.

Today, the window is rapidly closing for employers on this issue. The FWO’s 2020-21 annual report stated that it had issued more than 2000 compliance notices in the past 12 months, up by 113% from 2019-20. [Compliance notices are the administrative mechanism to correct wage and minimum entitlement compliance breaches where there is a reasonable belief of contravention]. The FWO recently started Court action against several major corporations for contraventions where these businesses had voluntarily disclosed. In addition, the criminalisation of deliberate or dishonest underpayment of employees are now features of Victorian and Queensland State laws.

Good Luck or Good Planning?

Ensuring compliance is not just a matter of having the right processes in place to ensure that payroll systems and record-keeping obligations are being met – although these are two critical steps. It is also about having the right guide to shepherd you through the sometimes winding and precarious path of wage compliance to ensure there are no missteps. It is critical to get the right legal advice from experts in the field.

A further option some employers are considering are applications to vary those same Awards that are causing them so much grief, or, alternatively, create new Awards that better meet their needs. The current application for a new Award for the on-demand delivery industry that has been sought by Menulog is a case in point. Additionally, there is the option of exploring whether creative solutions such as exemption rates for some modern awards (which were features of some Awards before 2010) and which would absolve an employer from needing to comply with various provisions within an Award where an employee was paid above a certain salary range, could once again be in-vogue.

Understandably, COVID sidelined many traditional employer-employee issues. But that situation is fast coming to an end, with all the evidence suggesting wage compliance will be back in the industrial relations agenda – and in the news – in 2022. Employers need to be prepared.

Michael Mead
Partner
+61 2 9169 8428
[email protected]