Under the WA Long Service Leave Act, employers have obligations to provide employees with the correct long service leave entitlements, and to keep and maintain the required long service leave records. Employers who do not meet these obligations can face penalties.
Penalties
Penalties of up to $13,000 (or up to $130,000 in the case of a serious contravention) for individuals or a penalty of up to $65,000 (or up to $650,000 in the case of a serious contravention) for bodies corporate can apply for:
- not providing a long service leave entitlement;
- not keeping employment records;
- keeping an employment record that the employer knows, or could reasonably be expected to know, is false or misleading; and
- failing to transfer copies of transferring employees’ employment records to the new employer, where there is a transfer of business.
A serious contravention is defined as a situation in which the person knowingly commits the contravention and this conduct is part of a systematic pattern of conduct relating to one or more other persons.
Employer burden to disprove an allegation
An employer will have the burden of disproving an allegation made in proceedings to enforce an entitlement to long service leave if the employer was required to:
- make or keep an employment record under the Long Service Leave Act in relation to the matter; or
- make available for inspection a record in relation to the matter;
and failed to comply with the requirement.
The burden of disproving an allegation does not apply, however, if the employer provides a reasonable excuse for the failure to comply with the requirement to make or keep a record, or make a record available for inspection.
Accessorial Liability
A penalty may also be imposed on a person who has been involved in a contravention, including a contravention of a record keeping requirement. This liability may extend to persons such as accountants and HR officers responsible for maintaining and keeping employment records for a business if they are involved in an employer’s contravention of the record keeping requirements.
A person is involved in a contravention if the person intentionally participates in the contravention. This requires actual knowledge of the essential matters that make up the contravention. It can, however, also include ‘wilful blindness’ if a person deliberately shuts their eyes to what is going on and fails to make an inquiry of suspicious circumstances.
