News & Security Advice

National

Fair Work Ombudsman – Security company penalised

The Fair Work Ombudsman has secured penalties totalling $68,560 against the former directors of a Coffs Harbour security contractor found to have underpaid 14 employees almost $94,000.

The Federal Circuit Court found that Northcoast Security Services Group Pty Ltd (Northcoast Security), which has since been liquidated, contravened the Fair Work Act, and fined former company directors Kuldeep Chouhan and Ricky John Nelson, $32,560 and $36,000 respectively, for their involvement in the company’s underpayment of its workers.

The Court also ordered that both pay compensation of $128,678 in respect of underpayments and interest owing, noting that that they managed the operations of Northcoast Security and were responsible for the loss sustained by the workers.

The workers were paid flat rates as low as $18 an hour, with the exception of public holidays, while under the Security Services Award 2010, were entitled to around $40 an hour for some weekend, night and overtime work.

The company also underpaid broken shift allowances and made unauthorised deductions from employee wages to pay for uniforms and security equipment.

The Fair Work Ombudsman had previously informed Mr Chouhan about the need to pay employees their full lawful entitlements and commenced proceedings in 2014 after security guards contacted the regulator for help.

During the proceedings, Northcoast Security argued that the workers were actually employed by two labour hire entities, however the Fair Work Ombudsman rejected this argument and the Court agreed that Northcoast Security did employ the workers and had contravened the Fair Work Act.

The employees were issued rosters by Mr Chouhan, wore shirts bearing the logo of Northcoast Security and completed timesheets headed with the company’s name.

Fair Work Ombudsman Sandra Parker said the penalties and compensation imposed by the Court reflected the deliberate nature of the contraventions.

“Labour hire is a legitimate way to source staff, as long as they are paid correctly. Unfortunately some employers seek to use this arrangement unlawfully, to ignore award entitlements and get a competitive advantage over businesses that operate according to the law,” Ms Parker said.

“This judgment should serve as a warning to employers that they will get caught and face significant consequences for their actions, such as orders for significant compensation.”

In setting the penalties, Judge Manousaridis said that the penalty should “signal to employers, and to persons involved in the management of companies that employ persons, that there will be a significant penalty to pay if they do not comply, or take steps necessary to ensure they comply” with the Fair Work Act.

Transport (Cash in Transit) Award 2020

The Transport (Cash in Transit) Award has been varied as a result of the 4 yearly review of modern awards.

The new Transport (Cash in Transit) Award 2020 will commence on 4 May 2020.  Future award MA000042 from 4 May 2020 (PDF)

2020 Security Industry Skills Survey

This survey is to collect views on the current state, and future training needs, of the Property Services sector (which includes security). It will directly inform our project proposals for training products. Round 2 of the survey closes on the 17 February 2020.

Click here to give feedback on the security industry> 

Award Variation – Part Day Public Holidays

The Fair Work Commission has handed down its decision to vary modern awards to include a part day public holiday where gazetted by a State or Territory.

The decision (below) requires employers to pay employee’s public holiday rates in line with each State’s gazetted holidays.

Queensland  - Tuesday 24 December - Christmas Eve (from 6pm to midnight)

South Australia - Tuesday 24 December - Christmas Eve (from 7pm to midnight) and  Tuesday 31 December – New Year’s Eve (from 7pm to midnight)

Northern Territory - Tuesday 24 December - Christmas Eve (from 7pm to midnight) and Tuesday 31 December – New Year’s Eve (from 7pm to midnight)

Part Day public holidays are not gazetted in every State. https://www.fairwork.gov.au/leave/public-holidays/list-of-public-holidays

Modern awards are to be varied as follows:

Where a part-day public holiday is declared or prescribed between 6.00pm and midnight, or 7.00pm and midnight, on Christmas Eve (24 December in each year) or New Year’s Eve (31 December in each year) the following will apply on Christmas Eve and New Year’s Eve and will override any provision in this award relating to public holidays to the extent of the inconsistency:

(a) All employees will have the right to refuse to work on the part-day public holiday if the request to work is not reasonable or the refusal is reasonable as provided for in the NES.

(b) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday but as a result of exercising their right under the NES does not work, they will be paid their ordinary rate of pay for such hours not worked.

(c) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday but as a result of being on annual leave does not work, they will be taken not to be on annual leave during the hours of the declared or prescribed part-day public holiday that they would have usually been rostered to work, and will be paid their ordinary rate of pay for such hours.

(d) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday, but as a result of having a rostered day off (RDO) provided under this award, does not work, the employee will be taken to be on a public holiday for such hours and paid their ordinary rate of pay for those hours.

(e) Excluding annualised salaried employees to whom clause A.1.1(f) applies, where an employee works any hours on the declared or prescribed part-day public holiday they will be entitled to the appropriate public holiday penalty rate (if any) in this award for those hours worked.

(f) Where an employee is paid an annualised salary under the provisions of this award and is entitled under this award to time off in lieu or additional annual leave for work on a public holiday, they will be entitled to time off in lieu or pro-rata annual leave equivalent to the time worked on the declared or prescribed part-day public holiday.

(g) An employee not rostered to work on the declared or prescribed part-day public holiday, other than an employee who has exercised their right in accordance with clause A.1.1(a), will not be entitled to another day off, another day’s pay or another day of annual leave as a result of the part-day public holiday.

Senate Economics Committee – Inquiry into Unlawful underpayment of employees’ remuneration

The Senate has approved an inquiry into wage and superannuation "theft “by employers.

The inquiry comes after the admission by retail giant Woolworths that it had underpaid staff up to $300 million.

The Economics Committee is scheduled to report by the last sitting day in June next year.

The terms of reference are

  • indentify the best ways to uncover wage and super theft
  • determine how to protect those who expose underpayments
  • investigate the most effective ways to recover unpaid enntitlements
  • consider the tax treatment of recovered entitlements; and
  • weigh up changes to the exsiting legal fraework to assist with recovery and deterence

Review whether government procurement practices can be modified to ensure that public contracts are not awarded to businesses that have engaged in wage and superannuation theft.

Submissions from interested parties due by 14 February 2020. More Information

Parliamentary inquiry into an Australian Standard for the training and use of privately contracted security and detection dogs

On 16 October 2019, the Parliamentary Joint Committee on Law Enforcement commenced an inquiry into the development and introduction of an Australian Standard in relation to the training and use of privately contracted security and detection dogs, with particular reference to:

  1. the adequacy of current Australian arrangements, and the potential benefits of introducing a National Standard;
  2. funding, administration, and enforcement implications of the introduction of a National Standard;
  3. the nature and effectiveness of models adopted in overseas jurisdictions;
  4. any issues arising in the context of the work of law enforcement agencies, including the Australian Federal Police, in relation to the training and use of privately contracted security and detection dogs, or insights from law enforcement that might help guide the development of an appropriate National Standard;  and
  5. any related matters.

The purpose of this letter is to draw your attention to the inquiry and to invite you or your organisation to make a written submission. There is no requirement to address the full terms of reference and you may choose to comment only on the terms of reference that are of relevance to you. The committee would appreciate submissions by 17 January 2020.

The committee is seeking to publicise its work as widely as possible and would appreciate you referring this letter of invitation to any individual, group, or organisation that you think would like to contribute to the inquiry.

The committee is seeking written submissions in electronic form submitted online or sent by email to le.committee@aph.gov.au as an attached Adobe PDF or MS Word document. Alternatively, written submissions may be sent to:

Parliamentary Joint Committee on Law Enforcement
PO Box 6100
Parliament House
Canberra ACT 2600

Submissions should include contact details, should the committee or secretariat need to contact you. Personal contact details are removed from submissions before publication.

Please note that submissions are confidential until the committee releases them. You must not release your submission until the committee advises that it has accepted and released it publicly. Submissions are protected by parliamentary privilege but the unauthorised release of them is not.

The committee will normally make submissions public unless there is a request for confidentiality. If you would like your submission or part of it to be kept confidential please say so clearly in the submission. The committee will consider requests for confidentiality, but cannot make promises in advance. If you have concerns about confidentiality, I encourage you to call me to discuss this before lodging the submission.

Notes on making submissions are available from the website. The committee secretariat can also assist you: phone (02) 6277 3419 or email le.committee@aph.gov.au. More information about this committee is available at: www.aph.gov.au/Parliamentary_Business
/Committees/Joint/Law_Enforcement

Fair Work Ombudsman recovers $40 million for workers

The Fair Work Ombudsman’s 2018-19 Annual Report reveals a significant increase in recovered wages, record visits to our resources and firm enforcement of workplace laws.

Fair Work Inspectors recovered more than $40 million for 18,000 underpaid employees during the financial year - the highest total recoveries figure in the regulator’s history.

In 2018-19, the FWO resolved more than 29,000 workplace disputes between workers and businesses. There was a record 17.8 million visits to www.fairwork.gov.au to access our information and the Fair Work Infoline answered 380,000 calls from workers and employers.

The agency announced its annual compliance and enforcement priorities earlier in the year, and also strengthened its compliance and enforcement policy.

Fair Work Ombudsman Sandra Parker said the agency’s achievements show its commitment to promoting harmonious, productive, cooperative and compliant workplace relations.

“I am extremely proud of the agency’s work resolving employment disputes throughout the year, which has helped return wages to workers and kept employment relationships intact.”

“In line with our priorities, we will continue our important work educating employers and employees, targeting high-risk industries, protecting vulnerable workers and improving compliance across Australian workplaces in the year ahead,” Ms Parker said.

“We urge employers to actively check they are paying their staff correctly and access our free resources for help. We will take enforcement action against employers who break the law.”

The FWO had 67 matters before the courts as of 30 June 2019, in many cases alleging exploitation of vulnerable workers. Over 80 per cent of new litigations involved protecting migrant workers, with the agency securing court penalties of $1.8 million in matters including this cohort.

The FWO secured more than $4.4 million in court-ordered penalties, including a record penalty of $105,000 for a business’s failure to comply with Fair Work Commission Orders.

Over 50 per cent of litigations filed involved businesses in the fast food, restaurants and cafe sector. The FWO secured $1.6 million in court penalties against employers in the sector.

Inspectors issued $479,900 in on-the-spot fines for pay slip and record-keeping breaches.

Anonymous reports to the FWO increased, with over 16,000 reports received, which included over 1200 reports made in languages other than English. Inspectors conducted more than 2800 workplace audits, strategically targeting sectors at high risk of non-compliance.

Sham contracting: Who is an employee and who is an independent contractor?

Sham contracting is an arrangement where an employer attempts to disguise an employment relationship as an independent contracting arrangement. This is usually done in an attempt to avoid responsibility for employee entitlements.

While some labour hire suppliers lawfully provide workers who are described as independent contractors, some companies supplying workers covered by an Award are claiming these workers are ‘independent contractors’. Many of these workers are actually employees and have rights under the Fair Work Act, even if there is a written agreement. Independent contractors are also provided some general protections under the Fair Work Act.

Under the sham contracting provisions of the Fair Work Act, an employer cannot:

  • misrepresent an employment relationship or a proposed employment arrangement as an independent contracting arrangement.
  • dismiss or threaten to dismiss an employee to engage them as an independent contractor.
  • make a knowingly false statement to persuade or influence an employee to become an independent contractor.

The Fair Work Act provides serious penalties for contraventions of these provisions. Employees and independent contractors - who are also provided some general protections under the Fair Work Act - can also request help from the Fair Work Ombudsman if they feel their rights have been contravened.

For more information about the difference between an employee and contractor visit the Fair Work Ombudsman’s website.

Australia’s 2020 Cyber Security Strategy – Submissions close on 1 November 2019

Cyber security has never been more important to Australia’s economic prosperity and national security. In 2016, the Australian Government delivered its landmark Cyber Security Strategy, which invested $230 million to foster a safer internet for all Australians.

Despite making strong progress against the goals set in 2016, the threat environment has changed significantly and we need to adapt our approach to improve the security of business and the community.

Cyber criminals are more abundant and better resourced, state actors have become more sophisticated and emboldened, and more of our economy is connecting online. Cyber security incidents have been estimated to cost Australian businesses up to $29 billion per year and cybercrime affected almost one in three Australian adults in 2018.

At the same time, serious cyber incidents like WannaCry, Cloud Hopper and the intrusion into Australia’s parliamentary networks illustrate the threat to our economy, democracy and way of life. For businesses, a more secure cyberspace will support the delivery of digital services that Australians have come to rely on. Cyber security will underpin our future economic growth and ensure we remain competitive globally as Australian enterprises innovate and find new ways of creating value for their customers.

The Federal Government is calling for views on its Cyber Security Strategy. Submissions close on 1 November 2019.

Australia’s 2020 Cyber Security Strategy