WOOLWORTHS & COLES UNDERPAYMENTS 

In a matter spanning over a decade, the Federal Court, on September 5, determined that both supermarket companies had paid workers their salaries without accurately tracking other entitlements owed under the General Retail Industry Award (Retail Award).
 
The supermarket companies are expected to repay millions of dollars to current and former employees.

Since employees were paid a salary, the court found Woolworths and Coles had failed to keep detailed records of overtime hours, penalty rates, rosters and clock-in, clock out data that were not easily accessible to inspectors.
 
The supermarkets are not expected to decide on whether to appeal the decision, until early next year.  A case management hearing has been listed for October 27 to determine the full remediation sum.
 
Business lobby groups have said the Federal Court finding was proof that the regulatory system is too complex.  
 
The Australian Retail Association said ‘With 994 different pay rates across almost 100 pages, the Retail Award is incredibly difficult for employers to understand.  It is clearly not fit for purpose for larger employers.’ 
 
‘The expectation that smaller mum-and-dad operated businesses, who lack legal and HR resources, can use the award appropriately is entirely unreasonable.’
 
We will keep you informed.

 
FWO AND ATO JOINED FORCES

DARWIN FOOD BUSINESSES UNDER INVESTIGATION

Recently the Fair Work Ombudsman (FWO) and the Australian Taxation Office (ATO) joined forces, as part of Operation Sentinel, to conduct a series or surprise visits to food sector and hospitality businesses in Darwin.  
 
The ATO Assistant Commissioner, said ‘Cooking the books by ripping off your workers and dodging your tax and super obligations does not pass the pub test.  We will find out about it and take action’.
 
The FWO said, ‘Protecting workers’ rights and holding food sector employers to account is a priority for the FWO.’

 
FWO AND BORDER FORCE INSPECTIONS

SYDNEY BUSINESSES TARGETED

The Fair Work Ombudsman (FWO) and Australian Border Force (ABF) made surprise inspections of Sydney businesses employing migrant workers.
 
FWO checked time and wage records, including pay slips, to ensure that vulnerable migrant workers are being paid their correct wages and entitlements.  
 
They also checked recent job advertisements to ensure they met the requirements of the Fair Work Act, and educated employers on recent changes to workplace laws, such as the right to disconnect.
 
ABF officers provided employers with information about migrant worker protections under the Migrations Amendment (Strengthening Employer Compliance) Act, which came into effect in July last year to combat the exploitation of temporary migrant workers.  ABF officers also checked that visa holders were not subject to exploitation.

 
RIGHT TO DISCONNECT LAWS 

WHAT IS REASONABLE CONTACT?

As you are aware, the Right to Disconnect laws applied to small businesses from 26 August 2025.  These rules already apply to non-small businesses.
 
Employees have the right to refuse to monitor, read or respond to contact (or attempted contact) outside their working hours, unless doing so is reasonable.
 
The best way to make sense of ‘reasonable’ is to look at the situations most businesses face;
 
Clearly reasonable
Contacting an employee about a genuine safety issue or urgent customer matter.  Example - being locked out of a workplace or needing to fill a shift after a last-minute cancellation.
 
Clearly unreasonable
Messaging late at night about routine matters that can wait.  Example asking questions about a project due in a week.
 
Borderline
Requests that fall into the grey zone.  Example - asking a manager to join a late-night call. 
 
A simple test helps - Is this truly urgent, or does the employer just want it off their desk?  If it’s the latter, schedule it for business hours. This is where clear internal guidelines become essential.
 
Simple actions that can make a difference:

• If it’s urgent be clear in email
• Use delayed send on emails and messages
• Add an after-hours disclaimer in email signature – let employees know you don’t expect an immediate reply outside their working hours.
• Plan ahead to reduce last minute, after-hours contact

Small actions like these demonstrate commitment, protect employees’ wellbeing, and keep you on the right side of the law.
 
Employers should set the expectations and guidelines now to avoid disputes down the track.  Clarity is good business.