The Fair Work Act 2009 (Cth) (FW Act) requires that some documents published by the Fair Work Ombudsman (FWO) – the Fair Work Information Statements – are provided to new employees.
Fair Work Statements
The first of these documents is the Fair Work Information Statement (FWIS). The FWIS must be given to new employees either before their employment begins or as soon as practicable thereafter. The FWO released the updated FWIS effective from 1 July 2023.
Next, the Casual Employment Information Statement (CEIS) must be given to casual employees either before their employment begins or as soon as practically feasible thereafter.
Thirdly, on and from 6 December 2023, employers entering a contract of employment that includes a term that provides the contract will terminate at the end of an identifiable period (regardless of whether the contract can also be terminated earlier), will need to give the employee a Fixed Term Contract Information Statement (FTCIS) before, or as soon as practicable after, the contract is entered into. The FWO is yet to publish this statement.
Timing of Giving Statements to Employees
Be aware of the difference in timing for the FTCIS obligation. The FWIS and CEIS must be provided before or as soon as practicable after employment commences (i.e. when the employee starts work). The FTCIS must be given before, or as soon as practicable after, the contract is signed. This is likely to be before work begins.
Failing to Provide the Statements
Failure to provide the Fair Work Statements to new employees is a contravention the FW Act.
When an employer breaches the legislation in this regard, they will potentially face a monetary penalty for each contravention. The maximum penalty for a body corporate employer is $93,900 per contravention. The maximum for individuals is $18,780 per contravention.
If the FWO investigates a contravention associated with the failure to provide the Fair Work Statements, the most likely response will be the issuing of a warning. However, if the non-compliance is repeated or deliberate, it may issue an on-the-spot fine in the form of an infringement notice. This will require payment of $1,878 per breach for an individual or $9,390 per breach for a company.
Two Cases of Failures
In Farah v Ahn and Anor (2012), the Court imposed a penalty of $1,000 on an employer for failing to provide a FWIS to a new employee. In addition, the employee’s responsible manager was subject to a penalty of $200 by reason of being involved in the contravention.
In FWBI v Foxville Projects Group Pty Ltd (2015), a penalty of $20,000 was imposed. The Court emphasised the vital role of the FWIS, particularly for more vulnerable workers such as those who do not speak fluent English.
Akyra’s Key Takeaways
The Fair Work Act 2009 (Cth) mandates that certain documents, known as Fair Work Information Statements, must be provided to new employees. These statements include the Fair Work Information Statement (FWIS), the Casual Employment Information Statement (CEIS), and the upcoming Fixed Term Contract Information Statement (FTCIS).
- Employers must ensure that they provide the FWIS and CEIS either before a new employee’s employment begins or as soon as practicable afterward. However, the FTCIS, which will be required from December 6, 2023, must be given to employees before or shortly after the contract is signed, likely before work commences.
- Failure to provide these Fair Work Statements to new employees is a breach of the FW Act and can result in monetary penalties. The maximum penalty for a corporate employer is $93,900 per contravention, while individuals can face up to $18,780 per contravention. The Fair Work Ombudsman (FWO) may issue warnings or on-the-spot fines for non-compliance, depending on the circumstances.
NEED HELP with providing fwis to new employees?
At Akyra, we’re here to assist you in navigating through FW agreements. From keeping you updated with relevant industrial laws to setting up compliant processes, we can help. Stay on top of current legislation and alleviate employee concerns by reaching Akyra at 07 3204 8830. Alternatively, you can schedule a free 30-minute consultation for personalised advice. Let Akyra solve your payment concerns, and ensure they never happen again.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.