A few recent decisions of Fair Work Australia and the Federal Magistrates Court of Australia have highlighted that some employers may not be keeping on top of their obligations with respect to employment records.

The Fair Work Act 2009 (Cth) requires employers to make and keep certain records in relation to each of their employees. Failure to comply with these record-keeping requirements can result in a contravention of the Fair Work Act 2009 (Cth) by not only the employer but also any other person involved in that contravention, such as the owner of a business or a senior manager.

Over the next few months we will outline the record-keeping requirements of the Fair Work Act 2009 (Cth).

Hours of work

If an employee must be paid a penalty rate or loading, however described, for overtime hours actually worked, an employer must keep records relating to the hours worked by the employee as follows:

• In the case of a casual or irregular part-time employee who is guaranteed a pay rate set by reference to time worked, the record must specify the hours worked by the employee.
• For any other type of employee, the record must specify the number of overtime hours worked each day by the employee or, alternatively, when the employee started and finished working overtime hours each day (but only if a penalty rate or loading must be paid for overtime hours actually worked).

If an employer and employee have agreed in writing to an averaging of the employee’s hours of work, an employer must also keep a copy of that agreement.

Leave

If an employee is entitled to a particular kind of leave, an employer must make and keep a record of:

• the leave taken by an employee; and
• the balance of the employee’s entitlement to that leave from time to time.

If an employer and employee have agreed to cash out an accrued amount of leave, the employer must also keep both:

• a copy of the agreement to cash out the amount of leave; and
• a record of the rate of payment for the amount of leave cashed out and when the payment was made.

If you have any questions about the record-keeping obligations of employers, or any questions about employment matters generally, please contact Partner Lisa Barlin.