Posts Tagged “seniors”


A legal action initiated by the Fair Work Ombudsman has resulted in a penalty of $126,540 against a businessman “centrally involved” in a Brisbane cleaning company, the highest ever penalty secured by the FWO against an individual.

In a release, the FWO outlines the penalty against businessman Bijal Girish Sheth, who was involved with Queensland based cleaning company Brisclean Pty Ltd. The penalty was decided in the Federal Circuit Court as a result of action by the FWO.

The case considered whether Sheth was deliberately breaching sham-contracting laws by misclassifying four migrant employees as independent contractors, who were then underpaid. On top of the near-$130,000 penalty, he has been ordered to back-pay the workers $59,878.

Read more: Two businessmen fined over $130,000 in staff wage deductions as four-year long Fair Work case comes to an end

The business paid the workers as little as $17 dollars an hour and did not pay them at all for some work. The court ordered that if Sheth does not comply with the back-pay order, that part of the imposed penalty will be paid to the workers instead, according to the Fair Work Ombudsman’s release on the case.

Another worker was also misclassified, but due to a lack of records, the amount they were underpaid could not be determined. The affected workers are two Indian visa holders and another three immigrants who are now permanent residents.

As the company was placed into administration last year, the FWO could not pursue penalties against the company. Instead it used the Fair Work Act’s accessorial liability provisions to seek a penalty against Sheth.

Principal lawyer at McDonald Murholme Andrew Jewell told SmartCompany that “section 550 of the Fair Work Act deems that a person ‘involved in’ a breach of the Fair Work Act is taken to have personally breached the Fair Work Act”.

“Accordingly, that person is required to pay compensation and is liable for payment of a penalty.”

This is not the first time Brisclean was warned by the Ombudsman, with the FWO cautioning Sheth about sham-contracting previously. Fifteen other allegations of underpayment were made against the company, according to Fair Work.

Jewell believes the history of complaints would have contributed to the severity of the penalty in a case like this.

“The penalty is so high because of the history of complaints and the seriousness of the conduct,” Jewell says.

“Courts are generally relatively lenient towards accidental breaches or first offences, however deliberate breaches and a continued disregard for the law will result in significant penalties.”

A warning to “rogue operators”

Fair Work Ombudsman Natalie James said in the release that the scale of the penalty should serve as a warning to rogue operators across the nation.

“Even if you liquidate your company, it’s no guarantee of avoiding the consequences of non-compliance with the Fair Work Act,” James said.

“Any rogue business operator who thinks they can short-change workers and get away with it by shutting their company down should think again. We will seek to hold you to account at every available opportunity and you should be aware that we treat exploitation of vulnerable, migrant workers particularly seriously.”

Jewell says it is “common practice” for directors to be named personally, both in cases where the “financial viability of the business in is doubt or where an applicant seeks an additional penalty”.

“This prevents the directors from using a corporation to avoid liability,” he says.

The FWO said in a statement it believes Sheth to be operating the business under a new entity and will be referring the case to the Australian Securities and Investments Commission.

According to ASIC’s published insolvency notices, four separate applications for winding up orders have been submitted against Brisclean.

James has advised the cleaning industry will “continue to be a priority” for the Fair Work Ombudsman, stating, “Business models that involve exploitation of vulnerable workers are not acceptable and will not be tolerated”.

Jewell believes the nature of the industry attracts workers who do not have comprehensive knowledge of their rights.

“It would appear that the cleaning industry attracts workers without knowledge of their employment rights, such as migrant workers or students,” he says.

Jewell advises businesses wanting to ensure they are paying workers correctly to consult a lawyer or the FWO for guidance.

SmartCompany attempted to contact Brisclean, but was unable to reach the company, and was also unable to contact Sheth.

"Mr. Fix It": Terry Cole, 63, loves to share his experience as former fitter and turner, electrician and electrical mechanic with his customers at Bunnings Castle Hill

In the second part of her series exploring the age discrimination facing mature-age job seekers, Jackie Keast looks at the advantages of hiring older workers. 

Judy Higgins established a niche job board for mature workers, olderworkers.com.au, after her husband Shane spent over two years looking for work. Shane had left his former job at 58 as he was unhappy. He figured he would pick up work quickly. However, during his job search, he found his age was consistently brought up an issue.

“Two years. It was just horrific,” says Judy. “We thought there really had to be a job board for people over the age of 45 or 50, so they could apply for jobs knowing that their age wouldn’t be a disincentive.”

Prior to creating the job board, Judy worked for the Queensland Government on the Experience Pays Awareness Strategy, a program that worked with employers to promote the benefits of older workers.

“We had employers saying ‘well I’ll employ them, but I can’t find them, I don’t know where they are.’ So we thought let’s try to put them together, match them up. So that’s what we’re doing.” she says.

Judy, 63, operates the job board with help from Shane, 67, and their son, Matt. Since its launch just over five years ago, the website has become the fastest growing job board of its kind, with over 21,000 registered job seekers and over 1,500 registered employers. Jobs on the board cover a variety of trades and profession, both full and part-time.

Judy says employers have chosen to advertise with them as they recognise mature workers as loyal, reliable and experienced in dealing with difficult workplace situations.

“We had a large hospitality place ring us one day and say, ‘For goodness sake, can you find us someone who will turn up and won’t have a hangover on a Sunday morning?’,” she says.

After success in Australia, there are plans to launch a New Zealand version of the site later this year. However, despite the growth in business, Judy says there is no doubt age discrimination is alive and well. She says the job seekers who come to them often report frustration with recruitment agencies and young human resources staff.

”They’ve got all these negative thoughts about the skills and energy levels of older people,” she says. “They look across the table during the interview and think ‘well, you’re older than my mother or father, and in some cases, older than my grandparents’.”

Changing employers’ attitudes

Judy says she hasn’t seen an increase in clientele since the introduction of Restart, the Federal Government’s $10,000 wage subsidy for employers who hire workers over 50. She believes the cash is not incentive enough. Instead, she feels the government has to work to change employers’ psyche and allow them to recognise older people are capable and willing to work.

She believes training programs are critical for getting older workers back into the workforce and that the government needs to set up employment agencies that cater specifically for older workers’ needs.

“[Restart] is not going to change anybody’s mind if they aren’t already committed to older workers,” she says. “You could make the retirement age 90. You can pluck a figure out of the air. It won’t matter what age you make it, unless you’ve got employers who are prepared to employ older people.”

In order to help develop a commitment to older workers, Judy’s website has developed a pledge for employers to sign. The pledge states that employers’ will offer the same opportunities for older workers as all other workers through the recruitment, training and retention processes. Several large employers have signed, such as Woolworths, Telstra and BP.

A poster company for hiring over 50s

One major client of olderworkers.com.au is Bunnings, Australia’s largest household hardware chain, who are acknowledged by the Human Rights Commission and seniors’ advocacy groups like National Seniors Australia as a poster company for employers hiring over 50s in Australia.

In February this year, when Federal Treasurer Joe Hockey launched the National Seniors’ Age Management Toolkit, a guideline for hiring older workers, he did so at a Bunnings. Over a third of Bunnings’ workforce is over 50, with some employees even in their 80s.

“Last time I looked, the oldest worker was 83,” says Willem Pruys, Bunnings’ general manager of human resources. “In recent times, I awarded a 10 year service badge to someone who started with us when they were 68.”

Pruys says hiring older workers has been the company’s deliberate recruitment strategy for the last 15 years. “We had lots of training programs, as we still do, to help our team come up to speed with all the information you anticipate a customer might require, but there’s no substitute in terms of trust for someone who’s actually been on the tools and brings years of wisdom along with their knowledge,” he says.

Bunnings’ initial recruitment strategy targeted older tradespeople who still wanted to share their expertise but may have been struggling to keep up with the physical demands of their trade. From there, management soon realised older workers from all backgrounds brought a common sense and maturity to the business.

“We found to our absolute amazement – and to some degree, I’m still a little amazed by it – that we were the only people fishing in a very large pool of talent. For a lot of years, we’ve had it all to ourselves,” says Pruys.

“Having a mechanical knowledge, I can describe to people how to look after their equipment, so I enjoy that,” says Terry Cole, 63, who works in the power gardening section. Terry has been working part-time at Bunnings Castle Hill since February. Terry is a fitter and turner, electrician and electrical mechanic by trade and used to run his own company.

“I have three grandkids. They love coming to Bunnings and are proud that Pop’s working here. My grandson calls me Mr-Fix-It,” he says.

Terry says he was surprised and pleased to see Bunnings hired people of all ages, from uni students, apprentices and the semi-retired. “I’m a young person in some ways, there’s some people here in their 70s! It’s great to see, because out there generally, it can be hard,“ he says.

Daniela Macerola, 51, has also worked at Castle Hill Bunnings for the last three years. “I like the culture here,” she says. “There are a lot of us around the same age group; we get on really well. A lot of us are going through the same stage of life, with kids and everything, so you can relate to each other,” she says.

Prior to Bunnings, Daniela worked in various retail and customer service roles. Despite never working with tools before, she now works as a tool expert. “It’s amazing what you pick up. They say old people don’t pick up things, but that’s rubbish!”

Value of older workers

Pruys says an advantage of hiring experienced workers is that not only do they pass on their knowledge to the customers, but also to their fellow team members. “These people are natural teachers. We don’t have to run as much training, because it just happens informally,” he says.

He believes some other employers are scared to hire older workers due to health risks and higher rates of workplace injury. “We look at that and say, well, the return we get on that investment is so huge, it’s not an issue,” he says.

Bunnings is careful as to where it places older staff to avoid physical wear and tear. Flexible working arrangements also mean staff can work rosters to suit them, so that they can spend time with the grandkids or work other jobs. This flexibility means they often chose to retire later.

“We work fairly hard at encouraging them to stay with us and be flexible in accordance with where they’re at in life,” says Pruys. “A lot will choose to have some form of paid work as part of their lives for as long as they physically can.”

Pruys says that more and more employers will need to look to older workers as the population ages. “It’s going to be a real challenge for businesses to resource their ongoing growth,” he says. “Even though we’re actively involved now in employing the older worker, we’re going to have to get better at it.”

The Age Paradox is a series of articles by AAA journalist Jackie Keast 

Posted by Susan Ryan on 19 August 2014

Susan Ryan, Age Discrimination Commissioner at the Australian Human Rights Commission, calls on employers to take the age blinkers off and give experienced workers a fair go as part of a new positive ageing campaign titled The Power of Oldness.

Of all the complaints that the Australian Human Rights Commission receives about age discrimination, almost 60 per cent relate to employment. And these figures are an underrepresentation of overall cases. I also receive letters from older people and their families who do not wish to make a complaint, but want their stories to be heard. Their stories of repeated effort and repeated knockbacks are heartbreaking.

At a time when we are living longer and healthier lives, and when the Australian economy is crying out for skilled works, this should not be happening.

As Age Discrimination Commissioner my constant message is – give experienced workers a fair go. Take the age blinkers off and assess job applicants for what they can bring to the task.

When we waste the talents of mature workers, we not only harm them as individuals, we harm the economy, to the tune of billions of dollars lost each year.

I am encouraged that the challenge has been recognised by the Federal Government. An initiative announced in the budget shows leadership in the matter of recruiting and keeping mature workers.

On 1 July the Restart Programme commenced. This programme offers an incentive of $10,000 over two years to employers who hire a previously unemployed person over 50.

There are thousands of experienced capable older workers ready to work. All employers should look at the widest talent pool available, and appoint the best person for the job. Often, the best person will be the one with extensive, relevant work experience.

I am confident that when employers avail themselves of this incentive and take on an older person, the negative stereotypes about experience will disappear.

My message to employers is to give a 50-plus worker a go. Help restart their career – you won’t know what you’ve been missing out on until you try it.

For more information about the Restart Wage Subsidy, visit the Department of Employment’s website.

Source:  Living Well Navigator

Susan Ryan is a regular contributor to Living Well Navigator. Read more of Susan’s opinions on positive ageing:

Helpful links

Australian Human Rights Commission
Restart Programme