26 September 2023

The Fair Work Ombudsman has commenced legal action against the University of New South Wales (UNSW), alleging it breached laws relating to record-keeping, pay slips and frequency of wage payments.

It is alleged that for more than four years from March 2018, certain record-keeping contraventions were serious contraventions under the Fair Work Act, which have a ten-fold increase in maximum penalties.

The breaches, alleged in the Federal Circuit and Family Court, were part of record-keeping practices so inadequate that they made it difficult to identify whether employees had been underpaid.

The Fair Work Ombudsman started investigating UNSW in 2020 after the University contacted the FWO to self-report non-compliance with workplace laws.

The Fair Work Ombudsman alleges its investigation discovered that UNSW breached the Fair Work Act between 2017 and 2022 by:

• Failing to make and keep records of hours, rates of pay and details of loadings and other entitlements owed to casual academic employees;
• Failing to include lawfully required information in pay slips, such as basic information relating to pay rates and casual loading; and
• Failing to pay staff wages at least monthly for all hours worked. It is alleged UNSW staff were often unlawfully paid certain parts of their entitlements several weeks or even months after they actually performed the work.

The Fair Work Ombudsman’s litigation focuses on a sample of 66 allegedly affected casual academic staff in UNSW’s Business School, based at Kensington in Sydney.

FWO alleges that UNSW committed some of the contraventions despite a number of staff in the Business School having previously been made aware that UNSW’s record-keeping practices were not adequate and it needed to take action to address non-compliance issues.

The FWO therefore alleges that from March 2018 some of UNSW’s alleged record-keeping breaches were committed knowingly and as part of a systematic pattern of conduct and meet the definition of ‘serious contraventions’ under the Fair Work Act.

Fair Work Ombudsman Anna Booth said the nature and extent of UNSW’s alleged contraventions meant that litigation was the appropriate response.

“UNSW is providing the FWO with regular updates on its publicly announced extensive back-payment program, but we allege that because of its contraventions, we have not been able to properly verify the University’s self-reported underpayments,” Ms Booth said.

“Record-keeping is a crucial part of compliance with workplace laws, and this litigation and the penalties we will seek are a warning to all employers to prioritise getting records right.

“It is completely unacceptable for an employer’s record-keeping practices to be so poor that they prevent us from assessing what hours its employees have worked and whether it has paid its employees their full lawful entitlements.”

The action against UNSW is the latest of a number of FWO enforcement actions against universities, and Ms Booth said addressing systemic non-compliance in the university sector continues to be a focus for the FWO.

“We are committed to driving cultural change in the university sector. Universities need to place a much higher priority on investing in governance, human resources and payroll functions to ensure they comply with workplace laws,” Ms Booth said.

The FWO is seeking penalties against UNSW for multiple alleged contraventions.

Penalties for the alleged contraventions are up to $66,600 per contravention and up to $666,000 per serious contravention.

A directions hearing is listed in the Federal Circuit and Family Court in Sydney on 26 October 2023.

The Fair Work Ombudsman has previously commenced two court actions against the University of Melbourne, with both of those proceedings ongoing.

Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 for free advice and assistance about their rights and obligations in the workplace. An interpreter service is available on 13 14 50.