Sydney LDC provider back in court in relation to underpayment and leave issues 

The sole director of a company which acts as the approved provider for a long day care centre has been sent to court for a second time in relation to allegations of underpayment of an educator’s minimum wages and overtime entitlements under the Children’s Services Award 2010, annual leave entitlements owed under the Award, and failure to meet the Fair Work Act’s National Employment Standards.

Both the company director and the company itself are being prosecuted in relation to the allegations, which centre around one early childhood service in Greenacre, New South Wales.

The Fair Work Ombudsman is seeking penalties in court. For the alleged failure to comply with the Compliance Notice, the company faces a penalty of up to $46,950 while the director faces a penalty of up to $9,390. 

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

This matter follows a separate legal action by the Fair Work Ombudsman against the company and its director, which is still before the courts.

Fair Work commenced an investigation after receiving a request for assistance from a young worker employed as a full-time early childhood educator between April 2021 and May 2023. The worker was aged 20 to 22 years at the time.

A Fair Work Inspector issued a Compliance Notice to the company in December 2023 after forming a belief the company had underpaid the worker’s minimum wages and overtime entitlements under the Children’s Services Award 2010, and annual leave entitlements owed under the Award and the Fair Work Act’s National Employment Standards.

The Fair Work Ombudsman alleges the company, without reasonable excuse, failed to comply with the Compliance Notice issued, which required the company to calculate and back-pay the worker’s entitlements.

A contravention of pay slip laws with respect to the company is also alleged. For the alleged pay slip contravention, the company faces a penalty of up to $93,900.

It is alleged the director was involved in the failure to comply with the Compliance Notice.

“Where employers do not comply, we will take appropriate action to protect employees. 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,” Fair Work Ombudsman Anna Booth said, emphasising that the regulator would “continue to enforce workplace laws and take businesses to court where lawful requests and pay slip laws are not complied with.”

“Pay slips provide employees with the clarity they need about their pay, and we expect every employer to follow laws requiring them to be provided to an employee within one working day of each pay day,” she continued.

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

Employers and employees can visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 for free advice and assistance. An interpreter service is available on 13 14 50. Employees can also seek information from their employer and their union, if they are a union member.

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 and Children’s Services Award webpages.