Over 250 workers have been back-paid their Christmas Day entitlements after an operator in Melbourne ‘inadvertently’ underpaying them over $21,000.
According to the Fair Work Ombudsman, the restaurant operator ‘mistakenly believed it could declare Christmas Day a “shut-down”, rather than paying its permanent employees for a day off for a public holiday.’
The Ombudsman did not pursue enforcement action because it concluded that the employer had made ‘a genuine error’ and had co-operated in the investigation.
The investigation, and its result, illustrates the Fair Work Ombudsman’s approach to many workplace investigations. As its Litigation Policy states ‘Where a contravention is identified, and the matter is not resolved through voluntary compliance, enforcement measures (including in appropriate cases, the issue of Compliance Notices, the acceptance of Enforceable Undertakings or the commencement of proceedings) may be used to secure specific and/or general deterrence objectives.’
The policy goes on to state that ‘in certain circumstances proceedings may be commenced, notwithstanding any voluntary compliance, if the FWO considers such proceedings to be the most appropriate means of dealing with the contravention or deterring others from contravening Commonwealth workplace laws (for example, where there are significant amounts underpaid, a number of employees or vulnerable employees involved).’
In this case, the Ombudsman evidently felt that no objectives would be secured through the use of enforcement measures.
The Ombudsman’s litigation and investigation policy often means that the onus is on employees to be aware of their workplace rights, or for the Ombudsman to do a random check, if such violations are to be uncovered and rectified. As the Ombudsman does not have the resources to police all workplaces, many violations arguably go undiscovered due to a lack awareness among employees as to their pay and conditions.
This issue was illustrated recently by another investigation by the Ombudsman that uncovered that, out of a random selection of Canberra businesses, only 57 per cent were compliant with all their workplace responsibilities, and only 76 per cent paid correct pay rates.
In light of such findings, it is arguably necessary for the Ombudsman to revisit its litigation policy and ask whether the goal of ensuring businesses proactively follow Australian workplace laws is being achieved.
The Ombudsman’s media release on the Melbourne business can be found here.
The Ombudsman’s litigation policy can be found here.
The ABC’s article on the Ombudsman’s investigation into Canberra businesses can be found here.