In the News

Last week we saw a major case where a magistrate in the Industrial Magistrate Court found against an employer who had underpaid an employee and was found to be non-compliant with modern awards.

In determining the relevant classification under which an employee must be paid, the magistrate again reminded us that a practical approach should be taken in identifying the major or substantial aspect of the employee’s work.

Careful note must be taken of the duties which the employee is undertaking whilst they are at work.  It is not sufficient to only look at the employment agreement.  Consideration must be taken of where in the organisation the employee spends most of their time and to look at where the substantial portion of the employee’s duties fall on a day to day basis.

Notwithstanding that an employer has agreed in a contract to pay the employee at a specified level, once the employee starts to perform duties at a higher level, the employer must then re-classify and pay that employee at the appropriate higher level.

Businesses can open themselves up to civil penalties if it is found that underpayment of any entitlement has occurred: up to $51,000 against an organisation, and $10,000 against directors.


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