Low penalties are creating an incentive for unprincipled employers to breach record-keeping laws, according to Fair Work Ombudsman Natalie James.
Speaking in Canberra this week, she said her agency was seeing more and more cases where the records of some employers were either non-existent or so poor that it was impossible for Fair Work inspectors to calculate what employees were owed.
“The comparatively low penalties that currently apply for record-keeping contraventions arguably create a perverse incentive – an incentive to not keep accurate records, to conceal underpayment of wages,” Ms James said.
She said Fair Work inspectors went to great lengths to try to reconstruct workers’ records, including trawling through CCTV footage, cash-register log-in records, public-transport tap-on and tap-off records, text-message exchanges and security and visitor logs, but in the absence of reliable evidence, some employers continued to get away with record-keeping contraventions and possibly even profit from their unlawful behaviour.
“Unless workers have meticulously kept their own records of their hours of work, it becomes very difficult to assess whether underpayments have arisen and to be able to prove the quantum to the satisfaction of a court,” Ms James said.
An analysis of litigations initiated by the Fair Work Ombudsman reveals 26 of the 50 filed in 2015/16 involved alleged record-keeping contraventions and in 62 per cent the agency could not accurately calculate underpayments owed to workers.
In March, the FWO launched a new tool to make it easier for workers to keep an accurate diary of the hours they work. The new smartphone app, Record My Hours, is available from the Google Play and Apple app stores and has been downloaded nearly 9,000 times since launching.
