Underpayments

 

Hall & Wilcox are experts in underpayments and workplace compliance

The national employment team at Hall & Wilcox has extensive experience advising employers on underpayments and compliance with industrial instruments.

Our team works closely with clients to navigate issues of workplace compliance and the identification, investigation, rectification, disclosure and prevention of underpayments.

Our experience includes advising clients on establishing client legal privilege protocols, providing modern award and enterprise agreement interpretation advice, engaging forensic accountants, advising and briefing Boards, managing any disclosure to (and engagement with) the Fair Work Ombudsman and the Australian Taxation Office, negotiating enforceable undertakings with the Fair Work Ombudsman, engaging public relations firms, preparing rectification documents and communications, and key stakeholder management.

Our team is experienced in managing and balancing sensitive and commercial considerations with respect to workplace compliance and underpayment issues, including managing competing commercial interests, disclosure obligations (including under the Corporations Act and ASX listing rules), the Australian Accounting Standards and audit requirements.

Experience and expertise

Our trusted team is experienced in handling sensitive, high profile matters where reputation is paramount over a broad range of industries, including:

Agribusiness Banking and finance Construction Education
Film and television Health and aged care Horticultural Information technology
Insurance Manufacturing Maritime Mining
Recruitment Retail Storage and distribution Transport

 

Underpayment – hospitality industry

Hall & Wilcox provided advice to a national restaurant chain on the investigation and rectification of an underpayment.

In this matter Hall & Wilcox:

  • Developed an investigation methodology.
  • Advised on engagement with (and drafted communications to) affected employees.
  • Advised on self-reporting to the Fair Work Ombudsman. 
  • Resolved the underpayment without an enforceable undertaking and without any contrition payment.
  • Provided disciplinary advice regarding employees who agitated the underpayment on social media for breach of workplace policies.

Underpayment – essential services industry

Hall & Wilcox provided advice to an essential services provider on an underpayment regarding piece rates under a modern award.

In this matter Hall & Wilcox:

  • Advised on modern award coverage and interpretation.
  • Engaged a forensic accountant to quantify the underpayment under cover of client legal privilege.
  • Provided advice and prepared correspondence on behalf of the client to voluntarily self-disclose to the Fair Work Ombudsman.
  • Represented the client at a conciliation before the Fair Work Ombudsman.
  • Resolved related disputes with the Electrical Trades Union before the Fair Work Commission.

Underpayment – logistics industry

Hall & Wilcox provided advice to a global logistics company on an underpayment regarding the non-payment of breaks under the Road Transport and Distribution Award.

In this matter Hall & Wilcox:

  • Engaged an external consultant to quantify the underpayment under client legal privilege.
  • Advised on the client’s obligation to self-disclose to the Fair Work Ombudsman.
  • Negotiated enforceable undertakings with the Fair Work Ombudsman. 

Underpayment – aged care industry

Hall & Wilcox provided advice to an aged care and disability services provider in relation to an underpayment that affected around 2000 employees. 

In this matter Hall & Wilcox:

  • Provided strategic advice on responding to various demands for information from the Fair Work Ombudsman.
  • Drafted correspondence to the Fair Work Ombudsman.
  • Resolved the underpayment without an enforceable undertaking and without any contrition payment.
  • Provided advice that helped the underpayment avoid public disclosure.

Underpayment – financial services industry

Hall & Wilcox provided advice to a stock broking and financial advice institution on an underpayment regarding the non-payment of minimum wages and leave under the Banking, Finance and Insurance Award.

In this matter Hall & Wilcox:

  • Identified the underpayment in the due diligence process.
  • Worked with the client post-acquisition to quantify and remediate the underpayment. 
  • Drafted internal and external media communications, new employment contracts, and rectification letters for affected employees.

Underpayment – retail industry

Hall & Wilcox provided advice to a national retailer on an underpayment affecting around 1000 employee under the General Retail Industry Award.

In this matter Hall & Wilcox:

  • Provided strategic advice on investigation methodology, disclosure to the Fair Work Ombudsman, the rectification process and contingency planning.
  • Engaged a forensic accountant to quantify the underpayment under cover of legal professional privilege.
  • Provided interpretation advice on the General Retail Industry Award.
  • Drafted the client’s voluntary disclosure correspondence to the Fair Work Ombudsman, and advised and prepared responses to subsequent requests for information.

Recognition

Hall & Wilcox’s employment team is ranked in Chambers & Partners 2021, which assesses firms on their technical legal ability, client service, commercial vision and business understanding, diligence, value for money and depth. The team is also recommended in The Legal 500 Asia Pacific 2021 guide.

Key contacts

Aaron has extensive employment and industrial relations law experience working with clients across a range of industries.

Alison has close to 18 years’ experience in a wide-ranging employment practice, advising private sector and public sector clients...

Karl advises his clients in adverse action claims at the Fair Work Commission, implementing and negotiating enterprise agreements, unfair...

Fay has acted for employers for the last 20 years across a range of industries including professional services, recruitment,...

Melinda provides strategic and practical advice on a range of employment and industrial relations law issues...

David is an experienced employment and industrial relations lawyer. David acts for both Australian and global clients across a...

Related thinking

Employment & Workplace Relations| 18 Dec 2020

Underpayments of over $4.4 million? Lush tries to ‘makeup’ with enforceable undertaking

The Australian branch of international cosmetics company Lush has entered into an enforceable undertaking with the Fair Work Ombudsman, and undertaken to back pay employees over $4.4 million.

Employment & Workplace Relations| 02 Jul 2020

The Fair Work Ombudsman is cracking down on underpayments and COVID-19 will be no defence: what do employers need to know?

The Fair Work Ombudsman is taking an increasingly tougher stance on systemic underpayments of employees. Our Employment team consider ways to reduce the risk of underpayments and consider what steps employers should take if they are alerted to potential contravening conduct including ‘do you or don’t you’ self-report to the Fair Work Ombudsman.

Employment & Workplace Relations| 21 May 2020

Federal Court imposes record underpayment penalty

In a record penalty, the Federal Court has fined three Hero Sushi outlets and their directors a total of $891,000 for underpaying workers and falsifying records. Karl Rozenbergs and David Burnton discuss the implications of this decision for employers.

Employment & Workplace Relations| 06 Dec 2017

Accessorily liable accountants penalised $54k for underpayments

In June we provided an update on the first time a professional services firm was found to be accessorily liable for contraventions of a modern award by its client.

Related industries