The Fair Work Ombudsman (FWO) will be shortly commencing a proactive investigation into the aged care sector at the end of February 2025. This article sets out important information for businesses operating in the aged care sector.
What’s going to happen?
The FWO will target a selection of residential aged care providers and home care providers (the selected providers).
The FWO is not required to give advanced notice before conducting an inspection. At the time of an inspection (surprise or otherwise), the Fair Work Inspector will present their identification to management and provide fact sheets about their roles and powers.
The selected providers will be required to participate in the FWO investigation. If found to intentionally hinder or obstruct the investigation, a person or the business can be fined up to $19,800.
Following completion of the investigation, the FWO will publish a report to its website, setting out its findings.
What is the FWO looking at?
The purpose of this proactive investigation is to assess the selected providers’ compliance with the Fair Work Act 2009 (Cth).
The issues the FWO will be targeting include:
- Is the business paying their staff correctly?
- Has the business met their pay slip requirements?
- Has the business met their record-keeping requirements (eg. employee records, pay records, overtime hours, leave records)?
- Is the business meeting their monetary obligations under the Fair Work Act? (eg. payment of penalty rates, annual leave loading, etc)
- Is the business meeting their non-monetary obligations under the Fair Work Act?
The scope of the investigation is broad and may include additional matters covered by the Fair Work Act.
How will the FWO conduct the investigation?
The FWO will appoint Fair Work Inspector(s) to each of the selected providers.
A Fair Work Inspector may engage in any of the following activities:
- contacting businesses;
- requesting and recording contact details of workers;
- visiting various business locations and work areas;
- inspecting sites and conducting interviews with workers and managers;
- visiting head office locations or administrative centres and conducting interviews with workers and managers; and
- requiring businesses to produce records or documents.
What are the common reasons for being found non-compliant?
Businesses can fall into non-compliant patterns for multiple reasons, including:
- not being up-to-date with applicable workplace relations obligations;
- not being familiar with record-keeping obligations;
- misinterpreting award requirements;
- making decisions to pay flat hourly rates in lieu of other penalties; and
- missing wage increases.
The Aged Care Sector has been subject to a series of minimum award wage increases arising from both the Aged Care Work Value Case and Nurses and Midwives Work Value Case. And, of course, as a result of each Annual Wage Review.
Aged care providers must grapple with the additional complication of several minimum award wage increases for both direct care employees and nursing employees being awarded in tranches (ie. not all in one go). Key dates for upcoming minimum wage increases:
- 1 March 2025 - enrolled nurses and registered nurses working in aged care;
- 1 July 2025 - annual wage review;
- 1 October 2025 - direct care employees and home care employees; enrolled nurses and registered nurses working in aged care; and
- 1 August 2026 - enrolled nurses and registered nurses working in aged care.
What to expect after the FWO Investigation?
For businesses found to be non-compliant, Fair Work Inspectors may issue:
- compliances notices;
- infringement notices;
- contravention letters;
- enforceable undertakings; and
- formal cautions.
The FWO will also publish a report to its website, setting out its findings.
The FWO may issue a media release detailing the quantity of wages recovered as a result of their investigation. Back in 2023, the FWO launched a proactive investigation into Sydney Food Precincts. As a result of that investigation, the FWO recovered $239,505 in wages for 333 underpaid workers after investigating employers in Sydney’s food precincts (see media release).
How to Prepare?
Aged care providers should take prompt action to review their compliance ahead of a possible inspection and investigation by the FWO.
Due to the short-window, providers should prioritise review of their record keeping practices – as each selected provider will be required to produce records to the Fair Work Inspector.
If you are uncertain about what records you are required to keep or have questions about your obligations under the Fair Work Act please get in touch on 1300 565 846 or via the contact us form on this page.
