Compliance isn’t an option, it’s a must: a timely reminder from the FWO to NDIS providers

A perfect example of what can happen when you disregard employee rights, a Melbourne-based NDIS provider and its director were in hot water with the Fair Work Ombudsman. This gripping case underscores the critical importance of compliance with workplace laws and could serve as a cautionary tale for businesses everywhere. Dive into the details of what went wrong and discover how to avoid similar pitfalls in your organisation.

A Melbourne based NDIS plan-management provider, and its sole director faced Court after failing to comply with a Compliance Notice issued by the Fair Work Ombudsman (FWO).

The FWO issued a Compliance Notice in July 2021 to Kukoon Pty Ltd (Kukoon) following a request for assistance from a former employee. The employee is believed to have been underpaid entitlements owed under the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) and the National Employment Standards (NES), including minimum wages, payment in lieu of notice, and accrued annual leave.

The FWO was seeking penalties which could be up to $33,300 for the Company and up to $6,660 for the director. Additionally, the FWO is seeking an order for the employer to comply with the Compliance Notice and rectify the alleged underpayments in full, plus superannuation and interest.

The commencement of proceedings by the regulator demonstrates the importance of complying with a Compliance Notice, or risk being taken to Court where lawful requirements aren’t complied with. FWO Sandra Parker said:

“Where employers do not comply, we will take appropriate action to protect employees. A court can order a business to pay penalties in addition to back-paying workers.”

When Fair Work Inspectors engage with employers regarding a breach of workplace laws a Compliance Notice may be issued to fix the breach instead of starting legal proceedings. This allows the employer an opportunity to respond and in turn correct the error before an escalation to legal proceedings. It’s alleged that Kukoon failed to comply with the Compliance Notice without reasonable excuse.

Why is this case important?

Not only does this case act as a reminder of the penalties that could arise should notices and directions from the FWO not be followed, but also that businesses need to have a strong understanding of employee entitlements and their obligations under the Modern Award and the NES to avoid breaches of workplace laws in the first place.

How can your business avoid the same mistakes?

We understand that interpreting awards can sometimes be complex but it’s something you can’t risk getting wrong. Citation HR, has a team of Ageing, Disability, Health, and Human Services specialists who are experts in assisting businesses to interpret and ensure compliance with workplace laws, including the complex award and enterprise agreement terms. If this is something you may need assistance with, you can contact their team of experts here.

How can Citation Certification support your disability services business?

Citation Certification is an Approved Quality Auditor (AQA), whereby the company can conduct a verification or certification audit on behalf of the NDIS Quality and Safeguards Commission (the Commission) for a business that is looking to become certified in the National Disability Insurance Scheme (NDIS).

So, what are the benefits of NDIS certification? NDIS certification (which is approved and granted by the Commission) gives a provider an official tick of approval, signalling that is has improved quality and safety measures that meet the NDIS Practice Standards.

While NDIS certification does not ensure providers are compliant with workplace legislation, the NDIS Practice Standards does include an assessment against the NDIS Worker Screening Rule, whereby a provider must demonstrate compliance against these requirements in order to satisfy the requirements under Human Resources.

Change on the horizon

There are several changes to the SCHADS Award that came into effect on 1 July 2022. These changes impact several conditions and entitlements for employees in the social, community, home care and disability services industries. Businesses must be across the changes to ensure compliance or risk enforcement or legal action by the regulator.