Ask Danny: Legal Questions Answered.Dear Danny, My staff member came to me recently asking for a pay rise. They are the office administrator of our small real estate firm. When knocked back the employee has said that by law we must pay them the award rate for their role. Is this true? How does one seek out the correct award rates for certain positions within their business? Tight Boss. NSW
Dear Tight Boss,
Yes, it is true that you must pay award rates for every employee who is covered by a Modern Award (unless you have a valid Individual Flexibility Agreement which allows some changes to those entitlements that place the employee in a position which is “better off overall”).
If you think you have previously underpaid this employee, it may be worth the investment in seeking professional advice to reduce your exposure to liability to both an action brought by your employee, or enforcement proceedings brought by the Fair Work Ombudsman. There are substantial penalties for breach of the Award, and it is your obligation as an employer to understand exactly what entitlements you must provide as a minimum to your employees, and to comply with the relevant industrial instruments.
Note that the Fair Work Act has brought in a range of protections for employees which make it illegal (and quite dangerous) to treat any employee in a way which “injures” them in their employment. Accordingly it is important that you do not victimise this particular employee for raising the underpayment of their entitlements.
Given you have asked how to find the applicable award for this one employee, you may wish to consider conducting a full employment governance audit to ensure that you are compliant with all of your arrangements with your staff. Each one should have a formal notification of the Modern Award applicable to their employment, the relevant classification under that Award, and their minimum entitlements (as well as a copy of the Fair Work Information Statement, applicable Award and the National Employment Standards). I suggest you have a careful read of the information contained on the Fair Work Ombudsman’s website for further detail on the steps you need to undertake to bring your operations in to line with the legal requirement (www.fairwork.gov. au).
Put simply, things have to change Tight Boss, and they need to change quickly.
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[Advice given should not be substituted for tailored legal advice by your solicitor]