Breathru Pty Ltd, a disability services provider, has entered into an enforceable undertaking to repay over $2.7 million to employees after incorrectly classifying workers under the applicable awards and industrial agreements. This resulted in an underpayment of the base rates for some employees.

Breakthru is required to back-pay 649 employees $2.75 million dollars which include superannuation and interest after underpaying employees from 2014-2020. The back-payments to each employee range from $1 to over $34,000.

Ms. Parker stated:

“This matter demonstrates how important it is for companies to check that they have classified every employee correctly. Any employer who needs help meeting their workplace obligations should contact the Fair Work Ombudsman for free advice and assistance.”

The Australian Council of Trade Unions (‘ACTU’) made submissions to the Federal Health Minister of the Morrison Government today to expand the definition of ‘high-risk jobs’ to allow supermarket workers, teachers, public transport operators, and airport security workers to receive the vaccine in phase 2a. The ACTU assistant secretary stated:

“The government must ensure that the workers who are most at risk are vaccinated as soon as possible.”

Christian Porter, the Industrial Relations Minister, has previously said the ‘overwhelming majority’ of employers should not expect to be able to force employees to be vaccinated against Covid-19.

Workpac, a labour-hire company, failed to satisfy the requirements of a ‘genuine redundancy’ under s 389 of the Fair Work Act as it did not give appropriate consultation to employees before their termination.

Workpac was engaged by the contractor PIMS at South32’s Appin coal mine when 23 Workpac employees were made redundant in June 2020 because of the impact of Covid-19. At the same time, however, South32 requested that the labour supply company provide 90 experienced coal miners at the site.

It was rightly argued that the redundancy of the workers could not be genuine as Workpac still required work to be performed, they did not properly consult the employees and they did not take reasonable steps to redeploy the workers.

Due to the restrictions of Covid-19 Workpac could only rely on telephone calls and letters to inform workers of their decision to make them redundant and to explore options of redeployment.

The tribunal rejected that the brief telephone conversation and a pro forma letter that was emailed to workers satisfied Workpacs requirements to appropriately consult and take reasonable steps to redeploy the employees. The tribunal stated:

‘At the very least a virtual meeting of the 23 employees should have been conducted.’

The tribunal found that there was no valid reason for the employee’s dismissal and highlighted the principal laid out in the case of Kim Star, that labour-hire companies such as Workpac are not exempt from the provisions dealing with Genuine Redundancy in s 389 of the Fair Work Act.

This case highlights the importance to follow the requirements of a ‘genuine redundancy’ even in the midst of the Covid-19 pandemic.