Employers are required to make and keep a number of different employment-related employee records, including records in relation to time and wage records, and pay slip details of their employees. New regulations applying to time and wage records and pay slips commenced from 1 July 2009.
The following is a summary of the details that must be made and kept by an employer as a consequence of these new regulations.
Overview
For employers whose business is covered by the Fair Work Act 2009, the employment details to be made and kept by an employer under time and wage record provisions are determined by the
Fair Work Regulations 2009.
These regulations became operative from 1 July 2009, although most of the details are similar to those previously provided under the Workplace Relations Act 1996 and its Regulations.
This Regulation requires time and wage records be kept by the employer for a period of seven (7) years.
Which employers?
The following: an employer whose business is a ‘constitutional corporation’, an employer located in Victoria, Northern Territory and Australian Capital Territory, and all employers with employees covered by a pre-reform federal award under the Workplace Relations Act (whether incorporated or otherwise).
The time and wage record requirements for an employer (other than Victoria, Northern Territory and Australian Capital Territory) who is a sole trader or a partnership is subject to the relevant state time and wage record legislation or regulation.
Which employees?
The employer is required to keep time and wage records for all employees, ie full-time, part-time and casual employees, as those employees employed under an individual contract of employment (award/agreement free employees).
Obligation to keep records
Section
535 of the Fair Work Act requires an employer to keep employee records as prescribed by the Regulations.
In the case of general employment records, superannuation records or termination of employment, an employer must keep an entry in a record for a period of seven (7) years after the date on which the entry is changed, or the employee’s employment with the employer was terminated, whichever occurs first. In every other case, the employer must keep an entry in a record for a continuous period of seven (7) years after the date on which the entry is made.
Records must be legible, in English and readily accessible to a workplace inspector.
Details
Records must allow the workplace inspector to ascertain an employee’s entitlements and whether the employee is receiving them.
General employment records: the employer’s and employee’s name; whether the employee’s employment is full-time or part-time, whether the employee’s employment is permanent, temporary or casual, the date the employee’s employment began and, on and after 1 January 2010 — the Australian Business Number (if any) of the employer.
Pay: the employee’s rate of remuneration; the gross and net amounts paid to the employee; and any deductions made from the gross amount paid to the employee.
If the employee is a casual or irregular part-time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee. If the employee is entitled to an incentive-based payment, or a bonus, or a loading, or a penalty, another monetary allowance or separately identifiable entitlement, the record must set out details of the payment of these amounts or entitlements.
Overtime: if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, the record must specify —
(a) the number of overtime hours the employee worked each day, or
(b) when the employee started and ceased working overtime hours.
Averaging of hours: If an employer and employee agree in writing to an averaging of the employee’s hours of work, the employer must keep a copy of the agreement.
Leave records: If the employee is entitled to leave —
(a) any leave that the employee takes,
(b) the balance (if any) of the employee’s to that leave from time to time.
If the employee has elected to cash out an accrued amount of leave —
(a) a copy of the agreement must be kept by the employer, and
(b) the rate of payment for the amount of leave that was cashed out leave and when the payment was made.
Superannuation: If the employer is required to make superannuation contributions for an employee —
(a) the amount of the contributions made, and
(b) the period over which contributions were made, dates contributions were made, and
(c) name of any fund to which a contribution was made, and
(d) the basis on which the employer became liable to make contributions including a record of an employee’s election to have contributions made into a fund and the date of any relevant election.
Individual flexibility arrangement: if an employer and employee agree in writing on an individual flexibility arrangement under the Act —
(a) a copy of the agreement must be kept by the employer, and
(b) a copy of a notice or agreement that terminates the agreement.
Guarantee of annual earnings: if an employer gives a guarantee of annual earnings under s330 of the Act, the employer must make and keep a copy of that guarantee. Where such guarantee is revoked, the employer must keep a record of the date of revocation.
Termination of employment: the record must contain the following:
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whether the employment was terminated by consent or
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by notice or
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summarily or
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in some other manner (specifying the manner), and the name of the person who acted to terminate the employment.
Transfer of business: the old employer must transfer to the new employer each employee record concerning a transferring employee that the old employer was required to keep at the time the transfer occurs. If the transferring employee becomes an employee of the new employer after the time at which the connection between the old employer and new employer occurs, the new employer must ask the old employer (and the old employer must comply) to give the new employer the employment records of the transferring employee.
The new employer is not required to make employee records relating to the transferring employee’s employment with the old employer.
Inspection and copying of records: An employer must make a copy of the records available for inspection and copying on request by the employee or former employee to whom the record relates, and it must be in a legible form. If the employee record is kept at the premises where the employee or former employee worked, the employer must:
(a) make the copy available at the premises within 3 business days after receiving the request, or
(b) post a copy of the employee record to the employee or former employee within 14 days after receiving the request.
If the employee record is not kept at the premises where the employee or former employee performed work, the employer must provide or post a copy of the record as soon as practicable after receiving the request. An inspector under the Act is also permitted to inspect and copy an employee record.
The employee or former employee may interview the employer, or a representative of the employee, at any time during working hours, about an employee record.
Pay slips
The Fair Work Regulations 2009 require an employer to provide certain details when providing an employee with a pay slip. Pay slip detail provisions under the regulations apply to the same category of employers and employees who are covered by the time and wage record requirements.
To comply with the regulations, a pay slip must be in electronic form or a hard copy. A pay slip must specify:
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the employer’s name; and
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the employee’s name; and
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the period to which the pay slip relates; and
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the date on which the payment to which the pay slip relates was made; and
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the gross amount of payment; and
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the net amount of payment; and
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any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and
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on and after 1 January 2010 — the Australian Business Number (if any) of the employer.
If an amount is deducted from the gross amount of payment, the pay slip must also include the name, or the name and number, of the fund or account into which the deduction was paid.
If the employee is paid at an hourly rate of pay, the pay slip must also include:
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the rate of pay for the employee’s ordinary hours (however described); and
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the number of hours in that period for which the employee was employed at that rate; and
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the amount of the payment made at that rate.
If the employee is paid at an annual rate of pay, the pay slip must also include the rate as at the latest date to which the payment relates.
If the employer is required to make superannuation contributions for benefit of the employee, the pay slip must also include the amount of each contribution (and the amounts that the employer is liable to make in relation to that period) that the employer during the period to which the pay slip relates, and the name, or the name and address, of any fund to which the contribution was made.
Modern awards — facilitative provision record requirements
From 1 January 2010, a standard provision in modern awards will be facilitation by individual agreement and/or by majority agreement, to agree to vary the application of certain terms of the relevant award. These terms on which the employer and an individual employee may agree to vary include:
The agreement must not disadvantage the individual employee in relation to the individual’s employee’s terms and conditions of employment, ie the agreement does not result, on balance, in a reduction in the overall terms and conditions of employment of the individual employee under the award, or the provisions of the Fair Work Act, eg the NES, or a state or territory law.
The agreement between the employer and the individual employee must also:
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be in writing, name the parties to the agreement, and be signed by the employer and the individual employee or the employee’s parent or guardian (if under 18 years of age)
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state each term of the award that the employer and individual employee have agreed to vary
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detail how the application of each term has been varied by agreement between the employer and individual employee
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detail how the agreement does not disadvantage the individual employee in relation to the individual employee’s terms and conditions of employment
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state the date the agreement commences to operate.
The employer must give the employee a copy of the agreement and keep the agreement as a time and wage record or, in the case of a majority agreement, the agreement must be kept as a time and wage record.
