9 October 2013

Elections and employment law and underpaying foreign workers in Australia

The article discusses two developments in employment law - new elections and penalties for underpaying foreign workers.
Australia Employment and HR
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Impact of elections on employment law

On 7 September 2013, the Australian federal elections were held and the Liberal National Party coalition won a majority of seats in the House of Representatives. We expect that that the Liberal National Party coalition will implement a number of its policies that impact upon employees as follows:

  • delay by two years further legislated increases, beyond the increase to 9.25% on 1 July 2013, in compulsory employer contributions;
  • introduce six months' "full replacement wages" parental leave for mothers whose salary is up to $150,000 per annum plus superannuation. Fathers will be eligible for two of the 26 weeks as dedicated paternity leave, also at replacement wages plus superannuation. If the father is the primary caregiver, the father will be paid the lower of his wage or the mother's wage. The government will administer the scheme and pay employees directly. The scheme will be funded by an 1.5% levy on companies whose annual taxable income exceeds $5 million. The changes are proposed to take effect in July 2015;
  • the Fair Work Commission will not be able to approve protected industrial action unless the claims made will not affect productivity, are "fair and reasonable", and not "exorbitant or excessive" having regard to the conditions at the workplace and the relevant industry;
  • before the Fair Work Commission can approve an enterprise agreement, it also will need to be satisfied that parties have "considered and discussed ways to improve productivity"; and
  • the new bullying laws which are due to commence on 1 January 2014 will be amended to require the worker who is claiming bullying to seek preliminary help, advice or assistance from an independent regulator before making an application to the Fair Work Commission. Bullying will also be expanded to cover the "conduct of union officials towards workers and employers".

The new government may have difficulty in implementing its proposed amendments until 1 July 2014, when the newly elected Senators take office as it will, until then, be dealing with a relatively hostile Senate.

Record penalties for underpaying foreign workers

A Perth cleaning company and its manager have been ordered to pay a record $343,860 in penalties for deliberately underpaying foreign workers. The company was fined $286,550 and the business manager was fined a further $57,310. The six cleaners – including five foreign nationals from Taiwan, Hong Kong, New Zealand and Ireland (some with limited English) were underpaid amounts ranging from $1,915 to $4,554. They worked for the company for just one to three months between June 2011 and January 2012. They worked nine to ten hour days cleaning homes in suburban Perth but were only paid for 7.6 hours. They were underpaid overtime and penalty rates, leave, meal break and travelling time entitlements and had money unlawfully deducted from their wages. The company and the business manager failed to issue pay slips, make payments with the correct frequency and keep employment records: Fair Work Ombudsman v ACN 146 435 118 Pty Ltd & Anor [2013] FCCA 803 (12 July 2013)

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to

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