The Fair Work Act 2009 (Cth) (FW Act) requires that various documents published by the Fair Work Ombudsman (FWO) – the Fair Work Statements – be given to new employees.

The Fair Work Statements

The first of these documents is the Fair Work Information Statement (FWIS). The FWIS must be given to new employees either before their employment begins or as soon as practicable thereafter. The FWO released the updated FWIS effective from 1 July 2023.

Next, the Casual Employment Information Statement (CEIS) must be given to casual employees either before their employment begins or as soon as practically feasible thereafter.

Thirdly, on and from 6 December 2023, employers entering into a contract of employment that includes a term that provides the contract will terminate at the end of an identifiable period (regardless of whether the contract can also be terminated earlier), will need to give the employee a Fixed Term Contract Information Statement (FTCIS) before, or as soon as practicable after, the contract is entered into. The FWO is yet to publish this statement.

Timing of giving the statements to employees

Be aware of the difference in timing for the FTCIS obligation. The FWIS and CEIS must be provided before or as soon as practicable after employment commences (i.e. when the employee starts work). The FTCIS must be given before, or as soon as practicable after, the contract is signed. This is likely to be before work begins.

Failing to provide the statements

Failure to provide the Fair Work Statements to new employees is a contravention of a civil remedy provision in the FW Act. In theory, this entitles the employee to seek a court order against the employer for payment of compensation for the loss flowing from the contravention. In practice, the employee will find it difficult to prove compensable loss.

Contravening employers will face a court awarding monetary penalty for each contravention. The maximum penalty for a body corporate employer is $93,900. The maximum for individuals is $18,780.

If the FWO investigates a contravention associated with the failure to provide the Fair Work Statements, the most likely response will be the issuing of a warning. However, if the non-compliance is repeated or deliberate, it may issue an on-the-spot fine in the form of an infringement notice. This will require payment of $1,878 per breach for an individual or $9,390 per breach for a company.

2 cases of failures

In Farah v Ahn and another (2012), the Court imposed a penalty of $1,000 on an employer for failing to provide a FWIS to a new employee. In addition, the employee’s responsible manager was subject to a penalty of $200 by reason of being involved in the contravention.

In FWBI v Foxville Projects Group Pty Ltd (2015), a penalty of $20,000 was imposed. The Court emphasised the vital role of the FWIS, particularly for more vulnerable workers such as those who do not speak fluent English.