Optus fined, hundreds of staff receive leave totalling $200,000, following regulator’s investigation

The Wage Inspectorate found Optus’s enterprise agreement didn’t comply with the state’s long service leave laws. The issue was identified as part of a broad compliance campaign that focused on whether enterprise agreements aligned with Victoria’s Long Service Leave Act 2018.

The Wage Inspectorate’s investigation led to:

• Optus providing an additional $218,000 worth of long service leave to approximately 560 current Victorian employees who hadn’t been allocated their full entitlement
• Optus back-paying 9 former employees who didn’t receive the correct long service leave entitlement when their employment ended
• The Wage Inspectorate charging Optus for failing to pay 5 of those former employees their full long service leave entitlement on the day their employment ended.

Today, Optus pleaded guilty in the Melbourne Magistrates’ Court to underpaying more than $6000 in outstanding long service leave entitlements to 5 former employees on the day their employment ended, despite them completing at least 7 years’ service. The charges represent a sample of the underpayments uncovered during the Wage Inspectorate’s investigation into Optus.

Individual underpayments ranged from $652 to $1,891, with some employees not receiving the money they were owed until 10 months after their employment ended. The offences took place between 31 March 2020 and 29 January 2021.

Optus was fined $13,000 and ordered to pay $15,000 in costs.

The issue arose because of a clause in Optus’s enterprise agreement that said that any period of unpaid leave over 5 days does not count towards continuous service. This is inconsistent with Victoria’s laws which state that any amount of unpaid leave less than 52 weeks does amount to continuous service.

In sentencing, his Honour Magistrate Sonnet did not record a conviction, taking into account Optus’s early guilty plea and its attempts to rectify the underpayments.

His Honour noted that if not for Optus’s cooperation with the Wage Inspectorate, he would have imposed a fine of $30,000.

Quotes attributable to Robert Hortle, Commissioner of Wage Inspectorate Victoria

“The Wage Inspectorate was set up to ensure Victorian's received their hard-earned entitlements and today's outcome shows that's exactly what we're doing. Around 570 current and former Optus employees will get their rightful long service leave entitlement because of our action."

Optus’s enterprise agreement was in direct conflict with the law, leading to former staff being out of pocket and current staff being unaware of their full leave entitlement and depriving them of the opportunity to travel, spend time with family or recharge their batteries.”

“It’s disappointing that Optus, a nationally recognised brand with significant resources, had underpaid former staff and under allocated leave to current employees. Victorians expect these large businesses to get this stuff right.”

“For big business, good governance starts in the boardroom. Complying with Victoria’s workplace laws should be front of mind for the most senior decision makers.”

Background

The under-accrual of long service leaves to Optus’s current staff does not represent a contravention of the Long Service Leave Act 2018 by Optus. The contravention occurs when a staff member isn’t paid the correct amount when their employment ends.

This case also helped clarify that charges under the Long Service Leave Act 2018 are continuing offences from the date of each employee’s departure until they receive their outstanding long service leave entitlements.

The Long Service Leave Act 2018 is a Victorian law that provides long service leave for employees who have worked continuously with one employer for at least 7 years. It applies to work that is full time, part time, casual, seasonal and fixed term.

After at least 7 years’ continuous employment with one employer, an employee is entitled to take their long service leave and be paid any unused long service leave entitlement on their final day of employment.

Most Victorian employees will be covered by the Act, unless they have a long service leave entitlement from another source, such as a registered agreement, award or another law.

A prosecution is the Wage Inspectorate’s most serious compliance tool and decisions to take legal action are made in line with its Compliance and Enforcement Policy.

Further information can be found at wageinspectorate.vic.gov.au.