Employer fined after workplace investigation confirms underpayment of two staff

A workplace investigation has revealed that a Sydney company was illegally underpaying two employees, leading to the company receiving substantial fines and an order to repay lost wages.

In a timely reminder that workplace investigations can identify organisational issues before they become significant and costly, Fair Work has revealed that a Sydney employer illegally underpaid two Korean employees for a period of three months.

The cleaning contractor attempted to argue that $15 per hour was the “going rate” for employees from the Australian Korean community. The Cleaning Services Award stipulates that the workers should have been paid at least $18 an hour for ordinary shifts, $27 an hour on Saturdays and $36 an hour on Sundays. Consequently, they have been fined and ordered to repay over $10,000 to the two employees involved.

The national Fair Work Ombudsman, Natalie James, offered a reminder that there is no “going rate” for employees of any nationality.
“Minimum wage rates apply to everyone in Australia – including visa holders – and they are not negotiable,” she said.

This case emerges after a number of recent incidences involving high-profile employers underpaying cleaners in Australia.

With the greater vigilance of Fair Work investigators in responding to complaints, employers and companies need to be proactive to avoid costly legal action, by undertaking their own workplace investigations into allegations of misconduct.

Addressing complaints fairly and effectively is key to calming the situation, before they reach a point where those involved need to contact the Fair Work Ombudsman or the Australian Human Rights Commission.

Within your organisation when a complaint is made, a formal workplace investigation should be undertaken as soon as practically possible. Workplace investigations involve the collection and review of information in regards to allegations of illegal or inappropriate behaviour. Such behaviour includes harassment, discrimination, bullying, or exploitation.

A comprehensive workplace investigation process generally comprises of four main stages:

1. Preparation and collection of information, including identifying the nature of the complaint, and preparing interview questions.

2. Interview of parties concerned, obtaining information regarding offending behaviour and the impact of that behaviour. This allows you to establish an understanding of organisational culture and may also provide context to the complaint.

3. Make a finding, which will be defined in accordance with the reliability and credibility of each party involved, and in consideration of the impact of the behaviour on the complainant.

4. Produce a workplace investigation report. Attention to all relevant details is important when producing the report, as evidence of how an organisation has dealt with complaints may be submitted in subsequent legal proceedings. Based on this report, action can be taken to address the subject of the complaint.

Note that a workplace investigator can be external or internal to the company. In selecting an investigator, it is essential that they are independent of the parties involved in the complaint, and are capable of reaching a fair and balanced decision.

As a leading provider of workplace investigation services, iHR Australia is able to facilitate a range of investigation formats, from dealing with informal complaints to significant and complex formal investigations. We have experience investigating complaints from an organisational, through to a senior executive and board level. iHR’s workplace investigators can also examine internal investigations you have conducted, to ensure they are sound and will stand up to external testing.

All workplace investigators at iHR Australia are senior HR and Employee Relations professionals with an average of 20 years’ experience. Several members of our investigations team also have legal qualifications and experience.

For those who feel they have the resources to handle a workplace investigation in-house, iHR Australia also offers Workplace Investigation Officer Training programs. In this course, iHR’s Senior Investigator guides participants through the lawful workplace investigation procedure.