The Federal Court has demonstrated the significant impact of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (‘the Act’), implemented to address widespread underpayment. In Ghimire v Karriview Management Pty Ltd (No 2) (2019) FCA 1627, two former employees alleged that they had been underpaid by their employer. There were issues of credibility and reliability surrounding the employee’s submissions as the only evidence produced was a handwritten record of their hours worked. However, the Federal Court determined on appeal that the effect of the new provisions of the Act was that because the employer had not kept a record of hours worked, the onus fell on the employer to disprove the underpayment allegation. Despite the applicant’s weak evidence they were awarded the full amount alleged to be owing, as the employer was unable to positively establish that the applicants did not work the hours claimed. Importantly, this principle extends to any benefit which the Fair Work Act 2009 requires to be recorded, such as penalty rates, overtime and superannuation. This decision serves as a reminder to employers to be diligent in record keeping in order to avoid potentially serious consequences. For advice on the adequacy of your business procedures contact M+E.
