I think I am being underpaid, what can I do?
In Australia, there are employment laws with which employers must comply. Laws are laws and you cannot be required to negotiate away lawful conditions of employment. Even if under pressure you agree to do so, courts and tribunals will not enforce any such “agreements”.
The first thing you should do if you think you have been underpaid is to check your entitlements under the National Employment Standards and any award or agreement which applies to your employment. If you are unsure as to which if any award or agreement applies to your employment then you can check on the website of the Fair Ombudsman: https://www.fairwork.gov.au/awards-and-agreements/awards/find-my-award/
Typically the sorts of matters where employers fall short are such things as:
- failing to pay you the correct minimum rate of pay;
- not paying you penalty rates for work you have performed after hours, on weekends or on public holidays;
- not paying you “overtime” rates for work performed additionally to your usual working hours;
- not paying you allowances to which you are entitled;
- not paying you loading on your annual leave;
- not keeping proper records of what you have been paid, the hours you have worked or the leave you have taken.
If you discover that you are being underpaid the first thing to do is tell your employer. They may have made a genuine mistake. If this is the case, then your problem should be simply resolved. If your employer does not respond appropriately, you should make a written request to them to make things right. At this point, it may be wise to consult with a lawyer or a union representative. If this fails then you may make a complaint to the Fair Work Ombudsman.
The Fair Work Ombudsman can pursue the following courses of action:
- They can request that the employer fix the situation;
- They can conduct Assisted Voluntary Resolution, which is a process undertaken to assist you and your employer in finding a mutually acceptable resolution. It is a relatively quick process often completed within 40 working days of the lodgement of your complaint.
- They can initiate a full investigation for all unresolved issues.
- Following an investigation, they may issue an official letter of caution that an employer is in contravention, and court action may be taken but is not in the public interest to do so.
- Following an investigation, they may take court action against your employer. If a finding is made against your employer, in addition to ordering that your employer make good what you should have been paid, the court can also:
- Impose a fine;
- Make an order to prevent further violations by your employer;
- Require an enforceable undertaking which contains an admission of guilt from your employer;
It is illegal for your employer to make a threat of dismissal towards you because you seek assistance from the Fair Work Ombudsman. If you cannot get appropriate relief from your employer and the Fair Work Ombudsman is not prepared to take court action, then you can do so yourself, either acting for yourself or by engaging a lawyer. The size of the awards made in some cases demonstrates how seriously Fair Work Australia and the court system take the issue:
In February 2017 Fares Ghazale, the former owner-operator of “Canteen Cuisine” in Albury, which closed in 2014, was penalised $88,810 and his company Rubee Enterprises Pty Ltd a further $444,100 in the Federal Circuit Court. The $532,910 penalty is the largest ever achieved as a result of legal action brought by the Fair Work Ombudsman. The court found Ghazale exploited five workers, two of whom were Indian cooks coerced into paying back portions of their wages under threat of violence,
The court found that Ghazale exploited five workers, two of whom were Indian cooks coerced into paying back portions of their wages under threat of violence, dismissal and withdrawal of support for their visas. The two Indian employees were underpaid a total of $32,063 and $28,858. Three Australian citizens were also underpaid, a waitress $11,273, a cook $8,946 and an apprentice cook $6,766. One of the Indian workers was sponsored by Ghazale on a 457 skilled worker visa, while the other was on a bridging visa while his 457 visa application was pending. Ghazale had promised the two workers annual salaries in excess of $50,000 for a 38-hour week, but they were generally paid flat rates of $1000 and $830 for working 60 hours per week, including nights and weekends.
Soon after commencing employment, the workers were told they would only be allowed to keep a fraction of their wages each week. The underpayments, combined with the “cashback” scheme, resulted in them being paid as little as $6 an hour. The employees were coerced into going to an ATM to withdraw cash to repay Ghazale amounts ranging from $450 to $940 a week for one worker, and between $360 and $2,000 for the other, totalling $11,050 and $10,680 over several months.
According to one employee’s affidavit evidence, Ghazale threatened to “contact Immigration” when he complained about the cashback scam. “If anything happens to my business, I will kill you,” the employee claimed Ghazale told him. “If you complain to anyone, I will kill you and cancel your visa.” When the second employee complained, Ghazale threatened to withdraw support for the pending 457 visa application. He later said he could not afford to pay the money back, to which Ghazale responded by “shouting and demanding he repay $500 cash each week if he wanted to get the visa”. The employee gave affidavit evidence that at one point during this exchange, Ghazale dragged him by the collar and attempted to punch him. The matter was reported to Albury police. The Indian employees gave evidence that the underpayments left them struggling to meet their most basic expenses, including buying groceries. One of the employees gave evidence that he had to borrow a mattress from friends because he could not afford to buy furniture and that he lost significant amounts of weight due to stress. He could also not afford to buy clothes or go out socially.
In his judgment, Judge Tom Altobelli found that the treatment of the Indian employees was “grossly exploitative” and described the conduct as “highly aggravating and extremely serious” and “particularly saddening”. “[Ghazale] exploited his position of power to extract significant sums from each of the employees, and in effect, pay them wages as low as $6 an hour. It is also highly aggravating that [Ghazale] used violence, and threats of violence, to obtain the repayments,” Judge Altobelli said. Judge Altobelli found that the cashback scheme was part of a “deliberate strategy of deceit to hide the ongoing contraventions of workplace laws” and that Ghazale had “deliberately exploited the imbalance of power between sponsor and visa holder in order to achieve financial gain”.
Fair Work Ombudsman Natalie James said the record penalties sent a clear message. “These record penalties are a big blow in the fight to stamp out deliberate exploitation of overseas workers in Australia,” Ms James said. “The minority of rogue employers in Australia intent on preying on the vulnerability of overseas workers should be warned that we will do everything in our power to pursue you and hold you to account. “Business models built around blatant exploitation of overseas workers are completely unacceptable. They create an uneven playing ground for the majority of business owners who do the right thing and tarnish the reputation of business in Australia.”
In total, the two Indian and three Australian workers were underpaid $87,909. In addition to the penalties, the Court has ordered Ghazale and his company back-pay the five workers in full.