A Gold Coast security firm has allegedly taken unlawful adverse action against 3 employees and underpaid staff almost $16,000. Principal lawyer Andrew Jewell comments on the need for employers to watch penalty rates more closely if employees are working late, or have irregular working hours.
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Security firm accused of saying staff would be sent “straight to the dole queue” if they spoke to Fair Work inspectors – SmartCompany
A Gold Coast security firm will face the Federal Circuit Court over claims the business took adverse action against three employees and underpaid staff $16,000, in a series of alleged actions ombudsman Natalie James has called “completely unacceptable”.
The allegations relate to security services firm VIP Security, which is owned by Adam Marcinkowski. The ombudsman alleges that in 2016, inspectors visited some of the sites where VIP provided services, as part of a compliance campaign for security firms engaged in contracts with local government.
After this occurred, it is alleged the company owner directed a supervisor to warn staff that if they spoke to Fair Work inspectors they would be fired, allegedly saying via phone, “I hear that anyone of our guards has spoken to them (Fair Work), they can just f…… go straight to the dole queue.”
It is claimed this threat was followed through, with one staff member having their employment terminated after seeking advice from the Fair Work Ombudsman over a change in hours, one allegedly fired after refusing to sign a back-dated employment agreement, and another being terminated for allegedly failing to return to work immediately after spending time in intensive care for pneumonia.
The ombudsman also claims the three workers had been underpaid a total of $15,938 between them, after allegedly being paid a flat $24 an hour wage for all hours worked, and that an individual flexibility agreement that applied that rate was presented as a full-time employment contract, instead of a variation on the award.
“It is completely unacceptable for an employer to take adverse action against a worker, including dismissing them, for exercising basic workplace rights,” Fair Work Ombudsman Natalie James said in a statement.
The ombudsman is seeking a range of measures in the Federal Court, including an order for the business to engage external auditors for compliance, evidence of backpay for any underpayments found, and workplace relations training for the company’s owner. The business faces up to $54,000 in fines per contravention of the Fair Work Act should it be found, while the business owner faces up to $10,800.
SmartCompany has attempted to contact the business owner through VIP Security this morning but did not receive a response prior to publication.
Check penalty rates very carefully
Principal at employment law firm McDonald Murholme Andrew Jewell tells SmartCompany he has seen a number of cases on wage concerns in the security sector, and reminds businesses operating services involving a lot of late work or irregular hours to watch penalty rates closely.
“Employers can look at the award and see $22 there, and think they will pay $25 and be ok,” he says.
“But Sunday nights might actually be double time – you need to really look at what penalty rates apply,” he says.
The allegations about warning employers off speaking to Fair Work in this case sit at the more “brazen” end of spectrum, but Jewell says businesses should really be viewing any contact with the ombudsman in terms of resolving potential problems in an affordable way.
“If you’re doing the wrong thing, it will get found out, and the sooner the better. And if you’re underpaying someone for six months, that’s one thing… if you’ve been underpaying someone for five years [and it gets uncovered], that will be a much bigger value.”
Jewell believes it’s very rare that employees want anything more than a swift resolution of concerns over employment conditions like rates, and given many businesses might be engaging in things like underpayments simply through an error, allowing staff to check queries with the ombudsman is the best way to resolve problems.
“I tend to believe a lot of businesses do not believe that they’re doing the wrong thing,” he says.
Reference: Security firm accused of saying staff would be sent “straight to the dole queue” if they spoke to Fair Work inspectors, SmartCompany, 12 July 2017