What are the consequences for providing false or misleading information related to Fair Work amendments?

In Plain English

If you knowingly provide false or misleading information or documents to the Fair Work Ombudsman (FWO) or an inspector, you could face civil penalties. This includes leaving out important details that make the information misleading. However, there are exceptions: if the false or misleading information isn't significant, or if you provide a written statement explaining what's false or misleading in the document, you may not be penalized. Also, if the FWO doesn't warn you beforehand that you could be penalized for providing false information, you might not be held liable.

Detailed Explanation

Providing false or misleading information or documents to the Fair Work Ombudsman (FWO) or an inspector can lead to consequences under the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 and the Fair Work Act 2009.

Specifically, section 718A of the Fair Work Act 2009, as inserted by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, addresses this issue:

  • Prohibition: A person must not give information or produce a document to the Fair Work Ombudsman, an inspector, or a person referred to in subsection 712AA(2) if the person knows, or is reckless as to whether, the information or the document:

    • is false or misleading; or
    • for information—omits any matter or thing without which the information is misleading.

    Note 1 of section 718A(1) states that this subsection is a civil remedy provision. * Exceptions: * The prohibition does not apply if the information or the document is not false or misleading in a material particular (s718A(2)). * The prohibition does not apply if the information did not omit any matter or thing without which the information is misleading in a material particular (s718A(3)). * The prohibition does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person (or a competent officer of a body corporate) stating that the document is, to the knowledge of the person, false or misleading in a material particular and setting out, or referring to, the material particular in which the document is, to the knowledge of the person, false or misleading (s718A(4)). * The prohibition does not apply if, before the information was given or the document was produced by a person to the official, the official did not take reasonable steps to inform the person that the person may be liable to a civil remedy for contravening subsection (1) (s718A(5)). The legislation provides that it is sufficient to use the following form of words: “You may be liable to a civil remedy for giving false or misleading information or producing false or misleading documents” (s718A(6)).

The Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 also amends sections 535 and 536 of the Fair Work Act 2009 to include similar prohibitions regarding false or misleading records and pay slips:

  • An employer must not make or keep a record for the purposes of section 535 that the employer knows is false or misleading (s535(4)). This does not apply if the record is not false or misleading in a material particular (s535(5)).
  • An employer must not give a pay slip for the purposes of section 536 that the employer knows is false or misleading (s536(3)). This does not apply if the pay slip is not false or misleading in a material particular (s536(4)).

These provisions are civil remedy provisions, meaning that contraventions can lead to civil penalties.

According to clause 24 of Part 4 of Schedule 1 of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, these amendments apply to conduct engaged in after the commencement of that Part.