03 Mar February Newsletter: Fair Work Information Statement – A key requirement for new employees

Fair Work Information Statement – A key requirement for new employees

Are you currently recruiting for your next new position?  One requirement under the Fair Work Act 2009 (Cth) (“Fair Work Act”) often overlooked by employers is the requirement to provide a Fair Work Information Statement to its new employees.

Section 125 of the Fair Work Act requires employers to give each employee the Fair Work Information Statement before or as soon as practicable after the employee commences employment.  An employer is not required to give the Fair Work Information Statement to an employee more than once in any 12 month period (for example, if the employer hired the employee twice during a 12 month period).  The Fair Work Information Statement can be given to employees in a number of ways, including by delivering it personally, mailing it by pre-paid post, emailing it, emailing a link to the Fair Work Information Statement (on the Fair Work Ombudsman’s website or an employer’s intranet) or sending it via fax.

The Fair Work Information Statement can be obtained from the Fair Work Ombudsman’s website (www.fairwork.gov.au) and can be downloaded in English and 27 other languages.

Failing to provide the Fair Work Information Statement when required is a breach of the National Employment Standards and the Fair Work Act.  An employer can be fined up to $10,800.00 (for an individual) or $54,000.00 (for a corporation) for failing to provide the Fair Work Information Statement.  Recent case law highlights the consequences of failing to provide the Fair Work Information Statement.

In Farah v Ahn and another [2012] FMCA 44, Farah (the employee) was awarded $38,000.00 for a breach of contract.  Farah’s employer, Pavilion Space Pty Ltd (“Pavilion”) was, taking into account the circumstances of the case, fined $1,000.00 for failing to provide a Fair Work Information Statement to Farah and Pavilion’s responsible manager, Mr Ahn, was fined $200.00 for being involved in that contravention.

In Director, Fair Work Building Industry Inspectorate v Foxville Projects Group Pty Ltd [2015] FCA 492, the Inspectorate commenced proceedings against Foxville Projects Group Ltd (“Foxville”) for a number of contraventions of the Fair Work Act and the Workplace Relations Act 1996 (Cth).  The parties agreed that Foxville had, over a period of approximately 10 months, engaged in contraventions including failing to credit annual and personal leave to certain employees, failing to confer certain entitlements to specified employees under an Enterprise Agreement and subsequent Enterprise Agreement, failing to provide a Fair Work Information Statement to specified employees and failing to keep records in accordance with the Fair Work Regulations 2009 (Cth).

Foxville was fined a total of $145,000.00 (to be paid to specific former employees) and was required to repay any underpayments.  Of the $145,000.00 fine, Foxville was fined $20,000.00 for failing to provide a Fair Work Information Statement to specified employees.  Justice Flick said that the Fair Work Information Statement “is an important means to ensure employees are informed of their rights”.

In both cases, the court took into account the surrounding circumstances of each breach in determining the appropriate penalty.  Nonetheless, these cases demonstrate the importance of providing a Fair Work Information Statement to employees and that a failure to do so can result in penalties against an employer.  If you require assistance with your legal obligations when recruiting employees, please contact us.

The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.