An employer must make and keep accurate records for all employees. Employee records are private and confidential and generally should only be accessed by the employee, the employer, or by payroll staff.
The Fair Work Act 2009 and Fair Work Regulation 2009 govern the rules relating to record keeping and prescribes that employee records must:
a) be kept for seven years
b) be in a legible form and in English
c) be readily accessible to a Fair Work Inspector.
What type of information must be included in employment records?
General employment records
General employment records must include:
a) the employer’s name
b) the employer’s ABN
c) the employee’s name
d) the employee’s start date
e) the status of the employee’s employment (casual, part-time of full time).
Hours of work records
Records about hours worked by employees must include:
a) for permanent employees, the record must include the number of overtime hours worked each day, or when the employee started and finished working overtime hours (if overtime penalty rates are applicable)
b) for casual employees guaranteed a set rate of pay, a record of the hours worked by the employee
c) a copy of the written variation form if the employee and employer have agreed to vary their an employee’s ordinary hours.
For employees who are entitled to paid leave, the record must include:
a) leave the employee has taken (if any)
b) the balance of the employee’s entitlement to that leave from time to time.
If an employee and employer have agreed to cash out, an accrued amount of leave, as prescribed by the relevant award or enterprise agreement, the employer must keep:
a) a copy of the agreement to cash out the amount of leave
b) a record of the rate of pay for the amount of cashed out leave and the date it was made.
Individual flexibility arrangement records
Where an employer and employee have a written individual flexibility arrangement in relation to a relevant award or enterprise agreement, the records must include:
a) a copy of the agreement
b) a copy of any notice or agreement terminating such an arrangement.
Where an employee has been terminated, the records must include:
a) the manner of termination (by notice, summarily, or specifying some other manner)
b) the name of the person who terminated the employment.
Transfer of Business records
Where a transfer of business under s311 of the Fair Work Act 2009 has occurred, the old employer is required to transfer to the new employer each employee record of a transferring employee.
What happens if employers breach these record-keeping obligations?
The Fair Work Act 2009 provides that Fair Work Inspectors may issue employers with infringement notices for failing to adhere to their record-keeping and pay slip obligations.
An infringement notice is akin to an on-the-spot fine and is an alternative from going to court. Fair Work Inspectors have 12 months after the day on which a contravention is alleged to have occurred to issue an infringement notice. Generally, employers must pay the penalty in the infringement notice in 28 days.
The maximum fines an employer may face from an infringement notice are:
a) $540 per contravention for an individual
b) $2,700 per contravention for a body corporate.
Fair Work Inspectors may also recommend the matter be taken to court if an employer’s breach is serious, wilful or repetitive.
This Fact Sheet has been provided by our partners, HR Assured. If you need advice or guidance on managing employment records in your workplace contact HR Assured on 02 9083 0033 and quote your JobeGetter UUID to receive a free advice call.
For more information about HR Assured, visit: www.hrassured.com.au