Underpayment in the aged-care and community services sector and self-reporting to the Fair Work Ombudsman

BaptistCare is a not-for-profit Christian based care organisation that provides services in aged care and to those in disadvantage. In 2019, BaptistCare conducted a review of annual leave for shift workers and associated leave loadings and identified that it had incorrectly applied clauses of the relevant enterprise agreements of 2011 and 2014 with respect to entitlements owing to shiftworkers.

To its credit, Baptist Care subsequently notified and admitted to the workplace regulator, the Fair Work Ombudsman (“FWO”), that it had underpaid current and former shiftworkers employees. The parties subsequently entered an Enforceable Undertaking. An Enforceable Undertaking is an agreement in writing that is formed between the FWO and an employer following identification that a workplace law has not been complied with. Self-reporting and enforceable undertakings are tools that enable employers to remedy compliance issue/s and take steps to ensure future compliance and in return, employers potentially avoid prosecution.

Through the review BaptistCare identified that it underpaid some 940 current and 1,200 former employees, and the underpayment was equivalent to approximately $1.2 million.

The above example is a reminder of the importance of ensuring compliance with workplace instruments such as an enterprise agreement by regularly reviewing your payroll practices, and if a compliance issue is identified, the advantages of taking corrective action as soon as practicably so as to possibly avoid prosecution by the workplace regulator.

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