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Reverse Onus of Proof: Employer Records Keeping

Innocent until proven guilty, right? Not under reverse onus of proof obligations when an employer fails to meet Fair Work Act record-keeping or payslip obligations.

The presumption of innocence is a fundamental principle of common law. Presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees no guilt can be presumed until the charge has been proved beyond reasonable doubt. The burden of proving the charge is known as the “onus of proof”.

That makes sense, right?

Someone accuses you of wrongdoing, so the onus of proof should be on them to prove their accusation has validity.

However, this isn’t always the case.

In certain employment scenarios, however, the Fair Work Ombudsman (FWO) takes a reverse onus of proof position.

The reverse onus of proof shifts the burden of proof away from the person making the accusation and onto the individual (or business) accused to disprove an element of the information.

When Does Reverse Onus of Proof Apply?

Reverse onus of proof can apply when an employee makes a claim of adverse action against an employer: the onus is on the employer rather than the employee to establish why a person was adversely affected. We’ve written on this topic previously and invite you to check out our blog on adverse action and general protections here.

Reverse onus of proof can also apply when an employee lodges a complaint with the FWO that they may have been underpaid or have not received a payslip. Should the FWO elect to investigate the employee’s claim, employers who do not meet record-keeping or pay slip obligations and cannot give a reasonable excuse must disprove allegations instead of the FWO having to prove there was a breach.

If unable to disprove the allegations, employers can be ordered to pay:

  • penalties for giving pay slips they know are false or misleading to their employees
  • double the previous maximum penalty for failing to keep employee records or issue pay slips
  • triple the previous maximum penalty for knowingly making or keeping false or misleading employee records.

What does the Law say?

Reverse onus of proof laws can be found listed under section 557C of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017.

You can also read more about the penalties applying to breaches of the Fair Work Act at the FWO Litigations page.

When it comes to HR and employment compliance, it’s worth getting things right.

Understanding your employment obligations and making sure you hold the right documents and records for your business is the difference between sleeping well at night and continually feeling on edge. Slept well recently?

Let Us Solve Your HR Headaches

Bare Bones Consulting specialises in two things: managing your HR risk and getting the best from your people.

Greg Bowmer is a Gold Coast HR Consultant who does everything to help you get it right the first time while keeping things simple for you.

Like to know more?

Check out our compliance and risk management overview here and give Greg a call on 0401 279 065 or send an online enquiry.

Then go take a nap. You deserve it.

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Note: Bare Bones Consulting provides HR services for employers. Employees seeking advice on workplace concerns should contact the Fair Work Infoline on 13 13 94.