Final Pay On The Final Day: Courts' Emerging Willingness To Penalise "Technical Contraventions"

It is not uncommon for employers to have a practice of making termination payments in the next pay cycle following termination of employment. This practice reflects the standard termination provisions in many modern awards (including the Clerks – Private Sector Award 2020;¹ the Banking, Finance and Insurance Award 2020;²and the Mining Industry Award 2020,³ among others) which express that termination payments must be paid no later than 7 days after the day on which the employee's employment terminates (Model Payment of Wages Clause).

However, a growing line of Court authorities demonstrates that even short delays in making termination payments after the final day of employment (even where that delay is only a few days) can expose employers to civil penalties under the Fair Work Act 2009 (FW Act) with respect to the following provisions: