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The ex-operator of an NSW agency has been caught out by the Fair Work Ombudsman (FWO) for failing to pay an employee’s commission.
The Federal Circuit and Family Court imposed a $4,000 fine against David Stuart McElveney, a sole trader who formerly operated One Agency Ballina-Lennox Head in the state’s north.
Mr McElveney must also pay the employee $32,000 in commissions owed, plus interest and superannuation that would have accrued over the period the payment was withheld.
The court found that Mr McElveney failed to act on a compliance notice issued by the FWO requiring him to back-pay entitlements to a worker he employed as a real estate agent under a commission-only written agreement between November 2018 and February 2021. The agent claimed that payments from Mr McElveney were owing following the sale of two properties through the Northern Rivers agency.
An investigation by the FWO commenced after the agency was contacted by the affected worker.
The compliance notice was issued in April 2021, after an inspector determined that the worker had not been paid what he was entitled to.
Fair Work Ombudsman Sandra Parker said business operators should be aware that if they fail to act on compliance notices, they will face further action and financial penalties on top of having to back-pay workers.
Mr McElveney faced a maximum penalty of up to $6,660 for failing to comply with the notice.
“When compliance notices are not followed, we are prepared to take legal action to ensure workers receive their lawful entitlements,” Ms Parker said.
“Any employees with concerns about their pay or entitlements should contact us for free advice and assistance.”
Paul Davies, founder and chief executive of One Agency, commented on the network’s association with Mr McElveney and noted its standards when it comes to licensee conduct.
“David McElveney was a licensee in the One Agency network as One Agency Ballina from late 2018 for approximately 30 months and was then, by mutual agreement, released from further obligations under his five-year licence agreement,” Mr Davies said.
“One Agency licensees are required under the licence agreement to uphold the highest standards and comply with all regulatory bodies in relation to the operation of their businesses and do so as independent business owners.”
ABOUT THE AUTHOR
Juliet Helmke
Based in Sydney, Juliet Helmke has a broad range of reporting and editorial experience across the areas of business, technology, entertainment and the arts. She was formerly Senior Editor at The New York Observer.
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