ECEC operator faces Fair Work Ombudsman in Sydney court over underpayment

The Fair Work Ombudsman has brought an approved provider and its sole director before a Sydney court in relation to the underpayment of a young educator between November 2019 and April 2022.

The educator, who was employed on a casual basis, worked with the service when they were aged between 19 and 22 years of age. The educator sought assistance from the Fair Work Commission in relation to their pay, triggering an investigation from the Fair Work Commission. 

“Employers also need to be aware that taking action to protect young workers is among our top priorities. Any employees with concerns about their pay or entitlements should contact the Fair Work Ombudsman for free assistance,” Fair Work Ombudsman Anna Booth said.

A Fair Work Inspector issued a Compliance Notice to the approved provider in February 2023 after forming a belief the worker had been underpaid casual minimum wages owed under the Children’s Services Award 2010.

The Fair Work Ombudsman alleges that the provider, without reasonable excuse, failed to comply with the Compliance Notice, which required it to calculate and back-pay the worker’s entitlements. It is alleged that the sole director was involved in the contravention.

Ms Booth warned employers in all sectors and industries that the regulator would continue to enforce workplace laws and take businesses to court where lawful requests are not complied with.

“Where employers do not comply, we will take appropriate action to protect employees,” she said. 

“A court can order a business to pay penalties, and to take steps to comply with a Compliance Notice including calculating and back-paying entitlements.”

As a result of their investigation the Ombudsman is seeking penalties in court. For the alleged failure to comply with the Compliance Notice, the approved provider faces a penalty of up to $41,250 and the director faces a penalty of up to $8,250.

The regulator is also seeking a court order requiring the approved provider to comply with the Compliance Notice including calculating and rectifying any underpayments, plus interest and superannuation.

A hearing to revisit the matter is listed in the Federal Circuit and Family Court in Sydney on 5 September 2024.

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.

The FWO provides a free online course to help employers understand what a Compliance Notice is and how to respond if they get one. The Compliance Notice course, among a suite of free interactive courses on offer for employers, managers and employees, is available in our online learning centre.

Small businesses can find targeted resources at the Small Business Showcase and information is available for employees and employers at our young workers and students webpage.