New laws hold franchisors responsible for vulnerable workers
Franchisors and holding companies could be held responsible if their franchisees or subsidiaries don’t follow workplace laws.
The Government has stepped in to protect workers following months of controversial headlines uncovering poor record keeping, questionable workplace practices and exploitation, underpayments, deception and superannuation guarantee fraud by employers.
The Protecting Vulnerable Workers Bill amends the Fair Work Act to:
1. Increase penalties for ‘serious contraventions’ of workplace laws
A ‘serious contravention’ of workplace laws occur if someone knowingly contravenes the law and their conduct is part of a systematic pattern. The penalties for breaches vary according to the offence and have increased up to 10 times higher than cases without the aggravating features. A breach is more likely to be a ‘serious contravention’ if:
- there are concurrent contraventions of the Fair Work Act occurring at the same time (e.g., breaches of multiple award terms and record-keeping failures);
- the contraventions have occurred over a prolonged period of time (e.g., over multiple pay periods) or after complaints were first raised;
- multiple employees are affected (e.g., all or most employees doing the same kind of work at the workplace, or a group of vulnerable employees at the workplace); and
- accurate employee records have not been kept, and pay slips have not been issued, making alleged underpayments difficult to establish.
2. Prevent record-keeping failures
Appropriate record keeping is a big part of the new laws to prevent poor employer practices being used as a defence; stymieing employee complaints for lack of evidence. Now, the onus of proof is on the employer to disprove an employee’s compliant.
The penalties for poor record keeping have also increased dramatically – now up to $12,600 for a standard breach and $126,000 for ‘serious contraventions’ by individuals and $630,000 for corporations. Maximum penalties are likely to apply where the employer knowingly falsified records and provided false or misleading payslips.
3. Hold franchisor entities and holding companies liable
New provisions hold franchisors and holding companies responsible for certain contraventions of the Fair Work Act by businesses in their networks.
The Government is concerned that some franchisors have either been blind to the problem of underpayments to workers or have not taken sufficient action to deal with it once it was brought to their attention.
The provisions only apply to responsible franchisors that have a significant degree of influence or control over the relevant franchisee’s affairs. Holding companies are assumed to have control. This means that franchisors and holding companies are held responsible “if they knew or could reasonably be expected to have known that the contraventions would occur, or that contraventions of the same or a similar character were likely to occur and they had significant influence or control over the companies in their network.”
Where franchisors (or their officers) recognise a problem and take action quickly to resolve it, it is unlikely that they will be held liable. This means that affected companies will need to have appropriate systems and monitoring in place to ensure that franchisees are acting within the law. This might include ensuring that franchise agreements or other business arrangements require franchisees to comply with workplace laws, establishing a hotline or contact point for employees, and auditing the businesses in the network.
4. Ban ‘cashback’ from employees or prospective employees
Workers in the 7-Eleven case reported that they were paid correctly but then required to hand cash back to the franchisee or lose their job. The Fair Work investigation found that this practice “was not isolated and was prevalent in a number of 7-Eleven stores.”
Asking an employee for ‘cashback’ so the person can keep their job, or to keep wages below minimum entitlements will always be unreasonable and prohibited. Penalties have increased tenfold for cases where these aggravated circumstances apply.
5. Powers and penalties of the Fair Work Ombudsman ramped up
During the 7-Eleven investigation, the Fair Work Ombudsman (FWO) expressed frustration at their limited investigative powers. The new laws provide the FWO with similar powers to the Australian Securities and Investment Commission and the Australian Competition and Consumer Commission. The new powers not only bolster information gathering but also provide the FWO with an enforceable power of questioning for the first time.
The FWO can now issue an ‘FWO notice’ requiring someone to give information, produce documents, or attend before the FWO to answer questions.
New penalties also apply for giving false or misleading information or hindering or obstructing a Fair Work investigation.
The maximum penalty for failing to comply with an FWO notice is $12,600 for individuals and $630,000 for corporations.