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Fair Work

Wage Theft Legislation is Coming! Review your Payroll Now!

On 1 January 2025, Wage Theft Legislation will be enacted. This legislation is part of the Federal Government’s “Closing Loopholes” laws which effectively change the Fair Work Act.

Wage Theft Legislation will make it a criminal offence to underpay wages deliberately. Penalties could be $7.825 million or more for a company and $1.565 million or more for an individual and/or 10 years in prison. The Fair Work Ombudsman will be responsible for investigating possible wage theft cases.

These are very hefty penalties indeed. No one wants to be at the pointy end of these new laws therefore, in my opinion, reviewing your payroll set-up now and ensuring it is completely compliant, would be a good idea. To that end, conducting a payroll audit is necessary.

How to Audit Your Payroll Set-up

A payroll audit includes a review of payroll practices, systems and outcomes, all underpinned by complex regulations that vary at the federal, state and territory levels. It looks at employee classifications, pay rates, entitlements, and record-keeping.

The Fair Work Ombudsman has provided a step-by-step guide to auditing your payroll. You can download it here. The guide assists in reviewing payroll records, assessing the findings and finally, providing solutions for any issues raised.

Further to the above guide, the Australian Payroll Association recommends taking these 5 steps to assist with the audit process:

  1. Engage a Specialist – a payroll specialist can review your current set-up and identify any gaps or areas of risk that require addressing.
  2. Educate your Team – make sure your team is across the new Wage Theft Legislation. Provide training and education in any areas of payroll legislation in which your team are lacking.
  3. Leverage Technology – Modern payroll systems help avoid non-compliance issues. If your payroll technology is outdated or not up to par with Australian requirements, consider upgrading to a system that automates calculations and processes for better compliance.
  4. Document Everything – Ensure all payroll processes are well-documented and records are meticulously kept to prove compliance, aid transparency, and defend your organisation in disputes.
  5. Regular Reviews – Once your payroll is fully compliant, ensure regular payroll audits are conducted to catch and correct any discrepancies before they create significant issues.

With the introduction of Wage Theft Legislation, employers are encouraged to be proactive and conduct a thorough payroll audit to ensure compliance. Doing this now, and making it a regular process going forward, will ensure that employers are well-placed to avoid becoming embroiled in criminal proceedings and potential sanctions.

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    What NOT to include in payslips for paid Family & Domestic Violence Leave

    Here is a reminder that access to paid family and domestic violence leave for employees of non-small business employers (employers with 15 or more employees) began on 1st February 2023 (and 1st August 2023 for small business employers). The leave is for 10 days for any full, part-time or casual employees and is not pro-rated. Read more about this new leave type in our previous blog here.

    Something important to call out in relation to paying this leave is the information that is prohibited from being included on the employee’s payslip. 

    Employers must not include:

    • A statement that an amount paid to an employee is a payment in respect of the employee’s entitlement to paid family and domestic violence leave
    • A statement that a period of leave taken by the employee has been taken as a period of paid family and domestic violence leave
    • The balance of an employee’s entitlement to paid family and domestic violence leave

    The reason for not including this information is that if a perpetrator of violence gains access to the employee’s payslip and sees that this type of leave has been taken, this may pose a significant risk to the employee.

    When setting up this type of leave in the payroll system, it is important to give it a generic name that does not reference the words “Family and Domestic Violence Leave”. In fact, not calling it “leave” at all is best practice. Given the payment is for an employee’s full rate of pay for the hours he/she would have worked if they weren’t on leave, then simply producing a payslip that shows “gross” pay, is recommended. In the back end of the payroll setup, details can be added noting what the payments actually are, and leave entitlement balances can be recorded but not included on the payslip (simply uncheck that box in the employee’s payroll setup (software-dependent)). 

    Precluding statements about this type of leave on an affected employee’s payslip is now part of the Fair Work Legislation Amendment Regulations 2022. Employers must take note and ensure that their payroll systems are set up correctly to reflect these amendments. Failing to do so may/will put affected employees at significant risk. If you are an employer, make sure you action this now (or by August 2023 if you are a small employer).

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    Quick-start guide for new employers

    So you’re going to start employing staff. That’s great, this usually means your small business is booming, so well done to you! Before you don your employer’s hat however, you need to make sure that you have all of your ducks in a row. There are quite a few things you need to do so to that end, we have created a quick-start guide for new employers. Our guide will tell you what you need to know, supply crucial documents and provide links to important information. Pop this blog link in your favourites for quick access as you will find it useful each time you on-board a new staff member.

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    What information must be on a payslip?

    If you’re an employer, you’re probably across how payslips work right? For instance, you already know that you must give employees payslips within 24 hours of paying them and that you can provide payslips in electronic or hard copy format. So that’s it right? That’s all you need to know – well, not exactly! Did you know that Fair Work has specific requirements in terms of what information should be reported on a payslip? Do you know if your payslips are compliant? Not sure? Here is a list of items that you must include on payslips (followed by some items that don’t have to be included, but should be!)

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