With inspections already carried out at 20 different organisations, the FWO is focusing on residential aged care facilities, home care providers, and digital platforms employing home care workers. While this initiative is a crucial step towards protecting the rights of personal care workers, nurses, and nursing assistants who provide essential care to older Australians, it also presents increased legal risks for aged care providers throughout Australia.

Given this blitz, aged care sector employers should be taking steps to ensure compliance with statutory and industrial obligations. Here are the steps aged care employers need to take to avoid costly FWO intervention. 

The FWO's recent investigations uncovered significant underpayment issues across the sector. Last year alone, the regulator recovered over $40.5 million for more than 22,000 underpaid aged care workers.

Non-compliance with the Fair Work Act can result in not only hefty back-pay liabilities but also costly penalties that can damage an aged care business’s reputation, which turns out to be far more expensive in the long run. It is important that underpayments are rectified as soon as possible after they are discovered.  

In addition to recent legislative changes to the Fair Work Act, changes to classifications and minimum pay rates for some aged care workers also took effect earlier this year. Understanding these changes is critical to ensuring your business stays up-to-date with the evolving legal landscape and avoids underpayments.

As these changes come into effect it is critical that your payroll team understand how to recalibrate your payroll systems to capture the reforms. Failure to do so may lead to error. Those errors can quickly accumulate across a workforce. 

The FWO’s goal in conducting inspections is to ensure compliance with industrial obligations, to protect workers from underpayment and to provide support to a workplace to remedy errors and improve understanding around the interpretation of industrial instruments. 

To ensure that you can answer questions when the FWO comes, employers should be conducting regular payroll audits to ensure compliance. It is important to seek advice about the 'rules' you apply through your payroll system to interpret shifts and shift variations including working and capturing additional hours, rostering and paying broken shifts, sleep overs and other shift patterns to ensure strict compliance. 

Such an approach may assist you to answer any questions the FWO raises during a review. 

If the FWO comes to call they will likely start by looking at your record-keeping practices to ensure compliance with the record keeping requirements contained in the Fair Work Regulations. Failure to maintain proper employee records can lead to various legal complications and disputes even without FWO involvement. 

Not all employers understand these strict requirements so consequently do not keep sufficient records of matters like breaks being rostered and taken, hours worked across a pay period, the date of payment (including gross and net amounts), loadings, allowances, rates of pay, leave accruals, superannuation remittance, individual flexibility agreements, reconciliation of annual earnings for annualised wage arrangements. 

Failure to keep proper and accurate records of hours worked and paid can make the process of responding to wage audits and investigations by the FWO much more difficult. 

If you are not familiar with your record-keeping obligations under the Fair Work Regulations, it is important you seek legal advice on the required statutory practices for record-keeping and payroll, so that you have the tools necessary to ensure compliance with the Fair Work regime.

The Fair Work Act and modern awards can be difficult to comprehend. 

If you are uncertain about a provision or how it applies to your workplace, it is important to seek advice. The FWO offers a variety of resources to employers to help with this. You might also seek advice about how to apply this advice in your setting. 

In the wake of increased scrutiny by the FWO, aged care providers need to be taking proactive measures to assess compliance, to address non compliance and to configure payroll to manage risk. 

If you're unsure whether your business is fully compliant or need guidance navigating the recent changes to the Fair Work Act or modern award, don't hesitate to contact our expert legal team. We can help you avoid pitfalls and keep your business operating smoothly in an ever-changing regulatory environment.

If you’re an aged care provider looking to safeguard your business from potential legal challenges, Colin Biggers & Paisley offers tailored advice and services to ensure full compliance with workplace laws. Our team is ready to support you in navigating complex employment laws and protecting your workforce.

Please reach out to our Employment and Safety Team if you would like some assistance in identifying and managing the risks to worker health and safety in your workplace.