As the approaching Christmas season brings 2018 inexorably to a close, the NRA’s Legal Practice Director and Deputy CEO, Lindsay Carroll reflects on a year that has been a challenging time for retailers and business in general. Never before has compliance with industrial laws been so far at the forefront of the national consciousness, with cries of ‘wage theft’ from the union movement trickling into politics. Some States are calling for non-compliance with the Fair Work Act to become a criminal offence, and disclosures by major businesses such as Lush, Super Retail Group and the Caltex franchise network about underpayments give ample fodder for anti-enterprise groups to chew on.
In this challenging time where wage compliance is not just ‘a nice thing to have’ but an essential aspect of any business, the National Retail Association stands ready, willing and able at the forefront of this new frontier to support our members both in business and the political arena. In recent months our team have worked with a number of significant retailers assisting them with understanding their compliance obligations, have supported Lush Fresh Handmade Cosmetics through the regulatory minefield following the business’s public disclosure in July, and just last month, appeared before Queensland Parliament advocating against the suggestion that ‘wage theft’ needs to be criminalised.
It is common ground that the modern award system in Australia is complex and difficult to navigate, an unfortunate side-effect of the Fair Work Act’s effort at taking the several thousand ‘bespoke’ awards of the past and attempting to hammer them into a ‘one size fits all’ instrument. In an industrial relations system where the regulatory instruments don’t always make sense, it is no surprise that non-compliance is substantially unintentional. Nothing makes this clearer than the Fair Work Ombudsman’s own statistics, which indicate that the regulator prosecutes less than 5% of non-compliant workplaces they uncover for the very simple reason that the remaining 95% are not acting criminally, simply ignorantly.
Where a business ends up in the spotlight for all the wrong reasons, it is not because there is something inherently criminal in the entrepreneurial mindset, but generally because the circumstances that the business is required to deal with do not gel with any particular provision of an industrial instrument. Legal Practice Director and Deputy CEO of NRA, Lindsay Carroll, observes that “With barriers to the approval of enterprise agreements increasing, we expect that more and more award-reliant businesses will be scratching their heads to figure out how their unique circumstances are supposed to fit into a ‘cookie cutter’ award.”
Significant compliance issues facing businesses arise from:
- misinterpreting modern awards and enterprise agreements;
- misunderstanding entitlements and allowances;
- misclassifying employees; and
- misapprehending which modern award applies to your business.
With the Fair Work Amendment (Protecting Vulnerable Workers) Act taking effect this time last year, the Fair Work Ombudsman has placed employers on notice that significant penalties will be attached to contraventions. Businesses are now compelled to proactively monitor, review and resolve any issues that may arise.
As the most representative association for the retail industry and the only association with a dedicated team of in-house workplace relations lawyers, the NRA is at the forefront of leading proactive wage compliance campaigns on behalf of its members. In this age of specialisation, it is important to remember that the most expensive top-tier law firm is unlikely to deal with the same few industrial instruments day in, day out. Our team of experts live and breathe the laws that regulate your business – yours, and no-one else’s. As experts in these quirky, complex and sometimes downright incomprehensible rules and regulations, we can help you quickly identify any problems and help you develop a solution which will satisfy your legal obligations and protect your business.
NRA is a trusted provider of key services in this regard, by both businesses and by the regulatory bodies. With a skillset which covers independent auditing, dealing with the regulator on behalf of businesses, and providing training and education to managers and employees, the NRA provides a complete suite of services to businesses facing compliance issues.
If you have any concerns with compliance issues, contact NRA Legal on 1800 RETAIL (738 245).