University gets schooled by the FWO and is fined $213k: an expensive reminder about employer record-keeping obligations

The University of New South Wales (UNSW) has been fined $213,120 following a successful legal action by the Fair Work Ombudsman (FWO) in the Federal Circuit and Family Court (FCFCA) (see Fair Work Ombudsman v University of New South Wales [2025] FedCFamC2G 2151).

The University admitted to breaching the Fair Work Act 2009 (Cth) (FW Act) and Fair Work Regulations 2009 (Cth) (FW Regulations) over the course of approximately 5 years, by failing to make and keep proper records affecting 63 of its casual employees. This included records which should pertain to hours worked, rates of pay and details of casual loading entitlements. UNSW also admitted to breaching the FW Act by failing to include casual loading information on its payslips. 

Background

The legal action was triggered when the FWO was notified by an employee of UNSW in 2018 that the University did not keep records of all hours worked by its employees. This complaint led to a number of internal investigations and the issue of a ‘Findings of Contravention’ letter from the FWO. 

The FWO then launched a formal investigation into the University in 2020 after it self-declared widespread underpayments to staff. During this investigation, it was made apparent to the FWO that UNSW still had not corrected its record-keeping failures from 2018 despite being put on notice of the contraventions – making it challenging for the FWO to investigate the underpayments. 

Employer record-keeping obligations

Under the FW Act and FW Regulations, employers have an obligation to keep employee records which are:

• in a legible form and in English;
• in a form that is readily accessible to a Fair Work inspector;
• retained for 7 years;
• not altered unless for the purposes of correcting an error; and
• not false or misleading to the employer’s knowledge. 

Types of employee records which must be kept include (but are not limited to):

• Rates of pay paid to an employee;
• The gross and net amounts paid to an employee;
• Deductions made from the gross amount paid to an employee;
• Hours worked by an employee if they are casual or irregular part-time;
• Overtime hours worked each day by an employee, if they are entitled to a penalty rate or loading for overtime worked; and
• The balance of an employee’s entitlement to leave (i.e. annual leave, personal leave).

Visit this link to read the FWO’s fact sheet on record-keeping and payslips.

Failure to comply with these record-keeping obligations can attract civil remedy provisions, where the maximum penalty is $99,000 per contravention for a body corporate. However, even higher maximum penalties can apply for serious offences. 

Findings and outcome 

The Court found that UNSW had contravened the following general provisions of the FW Act and FW Regulations: 

• Failing to make, and keep for 7 years, records of hours worked by employees including casual employees, and in a form readily accessible to an inspector;
• Failing to make, and keep for 7 years, records of the rate of remuneration paid to employees;
• Failing to make, and keep for 7 years, records of the casual loading to which each casual employee was entitled; and
• Failing to include prescribed information on payslips given to employees in relation to the casual loading.

The Court also concluded that none of the contraventions should be grouped together as a single course of conduct, and instead it treated each contravention as a separate breach for the purpose of imposing penalties. 

Factors that the Court considered relevant to the penalties imposed included the long period of time over which the contraventions occurred, the absence of any sense of urgency by UNSW to rectify the issues, and the fact that the contraventions resulted in millions of dollars being underpaid to staff. 

The Court also noted that the non-compliant record-keeping made it “difficult, if not near impossible” for the FWO to verify and assess UNSW’s underpayments. The Court observed that it was impossible to work out actual employee entitlements in some circumstances, such as where employees were entitled to be paid for attending meetings which lacked meeting attendance records and timesheets. 

Ultimately, the Court ordered a total penalty of $265,400 for all contraventions, being roughly 66% of the maximum total figure that may have been ordered. However, this was further discounted by 20% to $213,120 due to UNSW’s admissions, corrective action and apology. 

Takeaway for employers

This case is an important reminder for employers to ensure that they are well acquainted and fully compliant with the legislative requirements on record-keeping and payslips. Remember, this fine was imposed just for not having the right records, and not because of any underpayment!

Our prediction is that record-keeping and payslip compliance will be a new area of focus for the FWO, particularly because of their importance when it comes to reviewing compliance with other employment-related issues such as underpayments. 

Employers should:

• immediately check to see that they are keeping the correct records;
• review payslips to make sure they are compliant;
• make sure records are easily accessible; and
• get advice as to whether they need to keep hours of work and overtime records, even where their employees are not paid overtime rates.

For specific and tailored advice on record-keeping obligations and/or a review of your business’ compliance, contact a member of our Workplace Relations and Safety Team today.