This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab. My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…

Schedule free Consultation here.


Disability services provider, Activ Foundation Inc. (Activ) will back-pay employees in Western Australia a total of $13.6 million after breaching Australia’s workplace laws.

1,695 current and former employees affected

Activ, which is a registered Australian Disability Enterprise, has entered into a Court-Enforceable Undertaking with the Fair Work Ombudsman after self-disclosing that it underpaid 1,695 current and former employees, in diverse roles such as manufacturing, property maintenance, landscaping and product packaging.

Must not affect Social Security payments of disabled workers

Activ must also liaise with relevant government bodies to ensure that the back payments do not impact adversely on social security payments.

The affected workers were all people with a disability and were covered by a pay structure set out in the Supported Employment Services Award 2010 that allows employees to receive a rate of pay based on their capacity to perform the work.

The significant underpayments occurred between December 2011 and December 2017 and were identified after the company discovered that changes it made to broaden the application of the tool used to determine its employees’ rate of pay, contravened the Award.

Already back paid $12.7 million to 1313 workers

Activ has already back paid $12.7 million to 1313 workers, which includes interest and superannuation. Back payments have ranged from $5 to $51,152.

The remaining $907,830 needs to be back paid to 382 employees within 90 days.

The Fair Work Ombudsman

Fair Work Ombudsman Sandra Parker said that a Court-Enforceable Undertaking was appropriate, as the organisation had demonstrated a strong commitment to back-paying workers and setting up new measures to support their staff.

“The Court-Enforceable Undertaking commits Activ to stringent measures to protect their employees, including funding three external audits over the next three years and setting up a clear process for workers or their representatives to dispute their rate of pay,” Ms Parker said.

“This matter serves as a warning to all organisations that if you don’t prioritise workplace compliance, you risk underpaying staff on a large scale and face a massive back-payment bill. Any employers with questions about their lawful workplace obligations should contact us.”

Under the court-Enforceable Undertaking, Activ must set up a dedicated hotline for employees and hire a specialist to audit Activ’s compliance with Commonwealth workplace laws.

Activ is required to display public, workplace and online notices detailing its breaches and apologising to workers and register with the My account portal and pay for workplace relations training for payroll and human resources staff.

$20,000 contrition payment

Activ will also make a contrition payment, providing a total of $20,000 to two WA-based disability organisations.