Penalties for failing to pay employee $62,000


Three pharmacy owners have been slapped with thousands in fines for underpaying their staff

At the time of the alleged conduct, the owners were partners in a business called Save & Deliver that operated five pharmacies in NSW.

The Fair Work Ombudsman took the three partners to Federal Court on behalf of two former employees, hereafter referred to as NA and CS.

The Ombudsman alleged the respondents had failed to pay NA and CS their annual leave, annual leave loading, public holiday pay and overtime entitlements during their employment.

It also alleged the respondents had failed to pay NA his minimum rates of pay, his minimum hours of engagement per week and applicable penalty rates, and had failed to pay CS a special clothing allowance.

It was further alleged the respondents had contravened the Fair Work Act by failing to provide NA and CS with pay slips containing details about their superannuation, and failing to make and keep employee records.

NA primarily worked at the Mt Druitt pharmacy performing duties including delivering medications, picking up and dropping off supplies between the partnership’s pharmacies, giving medication to customers (but not dispensing duties), receiving goods, filling prescriptions, preparing methadone doses, stocking shelves, and cleaning duties.

He worked as permanent full-time employee from the beginning of his employment in September 2009 until November 2012, when he switched to being a permanent part-time employee until the end of his employment in June 2013.

He was properly classified as a Pharmacy Assistant Level 1.

The respondents said in their depositions that they thought NA was a driver, and so not covered by either of the awards relevant to his employment with them.

However Judge Robert Cameron found no evidence was adduced to suggest the Partnership had sought to identify which industrial instrument did, in fact, cover him and whether the Partnership was complying with it.

CS had worked as a permanent full-time employee primarily at the Flinders pharmacy from June 2012 to September 2013, performing customer liaison, administration and stock control duties.

She held a Certificate II in Community Pharmacy and was properly classified as a Pharmacy Assistant Level 2 under the Modern Award.

The owner primarily responsible for the management of the Flinders pharmacy accepted that CS should have been properly classified as a Pharmacy Assistant Level 2 but deposed that at the relevant time he had not realised that she should have been classified as such.

Prior to receiving complaints for NA and CS, the Ombudsman had reportedly received three other complaints related to the partners.

The respondents admitted to contravening the provisions of the Fair Work Act as alleged by the Ombudsman, including the underpayment of minimum rates of pay; non-payment of overtime; underpaying penalty rates; and not paying for minimum hours of engagement.

It was also agreed that during their employment neither NA nor CS took any paid annual leave.

The respondents agreed that they had underpaid NA an amount of $62,010.59 (the equivalent of about 93 weeks’ wages) and CS an amount of $5,296 (about 7.5 weeks’ wages). The total underpayments were $67,306.59.

At the time the statement of agreed facts was executed, the underpayments had not been rectified, but they were subsequently paid during the course of the court proceedings.

As members of the Partnership, the three pharmacy owners were found to be jointly liable for the contraventions.

In addition to paying back the former employees, the Federal Judge fined the partners $15,000 each, to be paid to the Commonwealth.

They were also ordered to pay NA and CS interest on the amounts that were paid to them as a consequence of the Ombudsman’s actions on their behalf.

In their depositions, the pharmacy owners expressed regret at depriving NA and CS of their entitlements and apologised for having done so.

They also said they had been unaware of the underpayments and had not intended to underpay the employees.

However Judge Cameron found that: “Although there was no direct evidence indicating that the respondents had intentionally sought to breach the relevant industrial instruments, they were not novice employers.

“There is no reason to suspect, particularly given [earlier complaints made against the Partnership], that the Partnership was not aware of the employment entitlements in issue in this case.”

The pharmacy owners stated they had since made changes to their business practices to ensure that there were no further underpayments of their employees.

The Partnership had reportedly since engaged an accounting firm to provide it with payroll management services and had engaged a specialist insurance provider to review its superannuation arrangements.

One of the pharmacy owners also stated he had attended a Pharmacy Guild of Australia workshop on employment responsibilities and applicable rates of pay for employees.

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