HR Manager Prosecuted for Fair Work Act Breaches
The Federal Circuit Court has ruled that a recruitment and labour hire company, its director and HR manager knowingly falsified employment records and made unlawful deductions from the wages of cleaners working in Melbourne's Crown Casino and Federation Square.
Judge Philip Burchardt ruled that OzStaff Career Services Pty Ltd deducted an administration fee from 102 employees, took meal allowances from another 44 employees and falsified employment records provided to the FWO after a targeted audit in January 2012.
OzStaff's deduction of the administration fee and meal deduction infringed s323 of the Fair Work Act and were not permitted within the meaning of s324. The deductions - of at least $25 a week from each employee - were unlawful because they didn't benefit the workers, nor were they authorised.
The company also breached Regulation 3.44(1) of the Fair Work Regulations because it failed to ensure employee records were not false or misleading.
Judge Burchardt found that the evidence established that it was "more probable than otherwise" that the HR manager was well aware of the administration fee and meal deductions contraventions by OzStaff and its director.
"He knew that the deductions were not lawful from his interrelationship with the Fair Work Inspectors he had met in 2012 and 2013.
"He thus had knowledge of the constituent parts of the contravention, albeit that he may not have known which section of the FW Act, if any, was capable of being contravened," he said.
The judge found the HR manager's knowledge sufficient to constitute involvement within the meaning of s550(2)(c).
He continued that it was clear OzStaff provided the FWO with a set of "false and misleading" records that omitted details of the administration fee and meal deductions.
Given OzStaff was "wholly the creature" of the director and there were no other directors, the judge rejected his claims he wasn't accessorily liable.
"[It] is clear in my view beyond doubt that the [director] was knowingly involved with the contravention in the provision of false and misleading pay records," the judge said.
"I simply do not accept that the person running the human resources activities of [OzStaff] and intimately involved, as he clearly was, with award matters was not aware not only that the deductions were being made but that the records which were forwarded to [the FWO] not showing those deductions were false and misleading. He was clearly involved within the meaning of s.550 of the FW Act," he said.
A penalty hearing is set down for August.
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