The Fair Work Ombudsman has secured a $213,120 penalty in court against the University of New South Wales (UNSW) in response to systemic record-keeping failures that hindered FWO's investigation into its underpayments.
The Federal Circuit and Family Court imposed the penalty after UNSW admitted breaching the Fair Work Act between 2017 and 2022 by failing to make and keep records relating to 63 casual academic employees, including hours worked, rates of pay, and details of casual loading entitlements.
UNSW also admitted breaching the Fair Work Act by failing to include casual loading information on pay slips.
The Fair Work Ombudsman first put UNSW on notice to address its record-keeping failures in 2018 after the FWO received a request from assistance from a casual academic in the UNSW Business School.
The Fair Work Ombudsman started a formal underpayment investigation into UNSW in 2020 after the university self-reported widespread underpayments.
Fair Work Ombudsman Anna Booth said during the underpayment investigation, it became clear to Fair Work Inspectors that UNSW had not voluntarily disclosed nor corrected its record-keeping failures after being put on notice in 2018.
"The Fair Work Ombudsman will work with universities to correct their problems - but they must engage openly with us about their failures and address issues promptly, or risk ending up in court. The university admitted its record-keeping and pay slip breaches only after we commenced legal action in 2023," Ms Booth said.
This, as Judge Brana Obradovic noted in her judgement, was despite "…various meetings, production of documents and information, as well as answering notice[s] to produce".
The Fair Work Ombudsman's legal action focused on a sample of 63 affected casual academic staff in UNSW's Business School, based at Kensington in Sydney.
Ms Booth said UNSW was providing the FWO with regular updates on its back-payment program, which involves several millions in payments to staff, but the extent of UNSW's record-keeping failures meant the regulator has not been able to properly verify the self-reported underpayments.
"It is completely unacceptable for an employer's record-keeping practices to be so poor that they prevent our inspectors from assessing what hours its employees have worked and whether employees have received their full lawful entitlements," Ms Booth said. "A litigation was the only appropriate response.
"Record-keeping is a crucial part of compliance with workplace laws, and the penalty imposed is a warning to all employers to prioritise getting their records right."
Judge Obradovic found that "UNSW's failures were systemic, long-standing and long-lasting" and that despite UNSW senior management being alerted to the record-keeping failures in 2018, it took them "many years" to rectify the breaches.
"UNSW has not provided any explanation as to why simple time sheets were not implemented as soon as the first complaint was raised and the issues with its record keeping discovered," Judge Obradovic said.
Judge Obradovic also noted that "there was never any disclosure by UNSW of its breaches in respect of record-keeping requirements".
"UNSW updated FWO in relation to underpayment, but did not disclose that the process of calculating underpayment was rendered difficult, if not near impossible, as a consequence of the lack of proper records," Judge Obradovic said.
Judge Obradovic said UNSW was a large and well-resourced employer and it was expected to establish and maintain robust compliance systems and to ensure it complied with its legal obligations.
"While the breaches were not deliberate per se, UNSW was also not deliberate in ensuring that it complied with its record keeping requirements," Judge Obradovic said.
Judge Obradovic found that the message needed to be loud and clear that the breaches were not good enough and would not be tolerated.
"The very mischief which record keeping requirements are designed to keep at bay, manifested itself in a significant manner, resulting in thousands of individual failures to make and keep proper records, and what appears to be millions of dollars of underpayments in wages," Judge Obradovic said.
The FWO's penalties secured against UNSW follow a number of FWO enforcement actions against universities.
Since announcing in 2022 that addressing systemic non-compliance in the university sector was a priority, the Fair Work Ombudsman has entered into Enforceable Undertakings with 11 universities: The University of Tasmania, Monash University, La Trobe University, University of Sydney, University of Melbourne, the University of Technology Sydney, the University of Newcastle and Charles Sturt University, Griffith University, the University of Wollongong, and Queensland University of Technology.
The FWO has also secured court penalties against the University of Melbourne.
"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.
