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Wage underpayment or wage theft?

Nov 20, 2019


You could be excused for thinking that in the case of mid to large employers who have ready access to bookkeepers, accountants and other financial resources, there would be little chance

ou could be excused for thinking that in the case of mid to large employers who have ready access to bookkeepers, accountants and other financial resources, there would be little chance of their workers being underpaid.

 

Strangely, those financial resources didn’t seem to make much difference to those workers who were underpaid by 7-Eleven, Domino’s, KFC, George Calombaris, and Flight Centre just to name a few.

We have seen revelation after revelation with millions of dollars in wages being withheld and the tide doesn’t appear to be turning. In fact, just recently, we learned that Woolworths is to be investigated by the Fair Work Ombudsman in what could well be Australia’s biggest wage underpayment case in the tune of $300 million or more.

What is equally troubling is that in many cases where large franchises commonly employ foreign workers on visas, the truth may never see the light of day due to overseas workers not understanding their rights and/or being too afraid to say anything for fear of being deported back to their home country.

The situation is endemic and despite enquiries and ongoing investigations by Ombudsman and regulatory bodies, the revelations keep coming. It is therefore critically important for workers to keep an ever-watchful eye over what they are being paid.

Essentially, there are minimum pay rates and entitlements which workers must be paid at or above.

The easiest and quickest way to find out minimum pay rates and entitlements is to use the Pay Calculator on the Fair Work Ombudsman website – http://calculate.fairwork.gov.au/findyouraward. It calculates base pay rates, allowances and penalty rates.

If you come under an enterprise agreement or other registered agreement, you will need to refer to such agreement.

If you suspect that you are being underpaid or incorrectly paid, the first port of call should be your payroll officer. However, if the underpayment is not fixed you have the option of reporting it to the Fair Work Ombudsman (“FWO”). If the FWO become aware of the underpayment and decide that the matter involves very serious issues and/or is in the public interest they may decide to investigate the complaint.

If despite the above, you still get nowhere, you should seek assistance from an employment lawyer. This will involve getting advice on determining the application of relevant Awards and Agreements, calculating how much you have been underpaid, putting the relevant employer on notice of your potential claim and lodging necessary proceedings and appearing in the relevant industrial Tribunal.

Insights

Making a Hearing Loss claim –
a Comprehensive Guide

Nov 18, 2019


Studies have shown that about 45% of Australians do not have a valid will. We spend hundreds sometimes thousands of dollars on servicing our motor vehicles, retaining tax agents to prepare

Studies have shown that about 45% of Australians do not have a valid will.

We spend hundreds sometimes thousands of dollars on servicing our motor vehicles, retaining tax agents to prepare our tax returns and taking out insurance policies to cover against fire and theft. Some would perhaps cringe at the idea of spending a few hundred dollars to have a lawyer to draft a will. And why would you retain a lawyer when you can buy a DIY will kit for about $30 at your local post office? Some of us simply put it off until later..

Sadly, in Australia there is no requirement to make a will. If you don’t have a will on your death the law will decide how your property or ‘estate’ will be divided. Well that might not sound so bad?

Assuming you were to die ‘intestate’ (ie. leaving no will) your property will likely be distributed to your nearest relatives.It could be paid to relatives that you have little or no contact with or are even estranged from. It is likely to cause considerable expense and unnecessary delay in finalising your estate.In fact, some or all of your assets could be frozen for months before your beneficiaries receive their share.

Further, your beneficiaries will have no idea as to who you wanted to care for your children, or how you wish your remains to be dealt with ie burial or cremation.

Making a will is important, simple and affordable. A small monetary outlay now could avoid a myriad of problems and expense later on.Having a lawyer draft your will ensures that it will meet the formal requirements of the Wills Act 1936 and reduce the possibility of it being contested.

It is also important to keep in mind that a lawyer will consider the broader context of your general affairs and circumstances such as your assets, superannuation including self-managed funds, any applicable family trusts, and guardianship issues. Assets can be held personally, jointly or in a trust, superannuation fund or company and a lawyer will properly consider same before giving you advice about the most practical, tax-effective and flexible options available to you.

A will really is one of the single most important documents you can prepare in your lifetime

Insights

Employment Contracts:
what you need to know.

Nov 12, 2019


An employment contract is a legally binding agreement between an employer and an employee. It may be nothing but a handshake and verbal agreement. It could be in writing. It could be combination of both. It is not uncommon to see a simple letter of appointment or email containing details of remuneration and period of service. In some cases it is a complex written document.

An employment contract is a legally binding agreement between an employer and an employee. It may be nothing but a handshake and verbal agreement. It could be in writing. It could be combination of both. It is not uncommon to see a simple letter of appointment or email containing details of remuneration and period of service. In some cases it is a complex written document.

Term of Contract
Employment contracts are usually either ‘fixed-term’ contracts which expire on a specific date or upon completion of a designated task or ‘indefinite’ contracts which continue until one party elects to terminate the contract.

Express or implied terms
An employment contract can contain both express terms such as the level of remuneration and the type of work that has to be done, and other terms that are implied. An example of an implied term is an employee’s duty to be faithful to the employer and not work for a competitor during the contract without permission. Implied terms could be implied by law or by the circumstances of a particular case. Express terms will generally override implied terms.

National Employment Standards (“NES”)
It is important that before signing your employment contract you are aware that there are legally enforceable minimum terms and conditions contained in the National Employment Standards (NES) which form part of the Fair Work Act 2009. NES entitlements will apply regardless of any contrary contractual terms that suggest otherwise. Some NES entitlements do not apply to casual employees.

Enterprise Agreement or Modern Award
Additionally, an employee may be subject to an enterprise agreement or modern award.An enterprise agreement will include specific conditions for one workplace whereas a modern award will include a safety net of minimum conditions for a whole industry.

It is relatively common for employers to ask new employees to sign an employment contract even where some of the terms of the employment relationship may also be covered by an award or enterprise agreement. Although a modern award or enterprise agreement may provide for extra entitlements, they cannot remove or reduce employee’s entitlements under the NES.

However, some awards and enterprise agreements do provide for employees to enter into an agreement with their employer to vary some provisions of the relevant award or enterprise agreement. However, there are restrictions regarding what provisions may be varied and there is usually a requirement that an employee cannot enter into an arrangement unless it means they will be “better off overall”.

What to look out for?
What to look out for when considering an employment contract will depend on the type of contract and the needs of the employee. Any proposed employment contract that has been provided to you should be clear in detail and the terms of the employment relationship. There should not be a clause which allows the employer to unilaterally change any of the clauses of the contract with out your prior consent. Even if it is specified that you will be consulted in regard to any changes to the contract this does not necessarily mean you will have the power to do anything about it. You should be reluctant to agree to such a provision.

Company policies
There may be a provision of the employment contract which refers to a company policy. Be sure to read the policy before you sign the contract. It may lead to a back-door way for your employer to make changes to the contract of employment by changing policy which could in turn affect your position.

Restraint clauses
Some employment contracts and in particular executive employment contracts contain provisions which prevent an employee from working for a competitor or a client of the employer within a period of time after the employment relationship ends. There could also be a restriction based on a geographical area. Such clauses could have implications for your career.

Whether such clauses are likely to be upheld will depend on them going no further than being reasonably necessary to protect a legitimate interest of the employer such as confidential information or retaining trade secrets, and the employee receiving adequate consideration for the term ie. a higher remuneration that would be the case without the restriction. They cannot be used simply to punish an employee.

An employer may take action to enforce restraint clauses and seek an order for an injunction restraining the employee from taking up new employment in breach of the terms of their employment contract.

Ordinary hours of work
There may be a clause within an employment contract which stipulates the ordinary hours of work ie. 38 hours per week. This may mean that even if you are working in excess of 38 hours per week you may only receive an annual salary based on a 38 hour week.

Generally speaking, unless your employment contract specifically states that you will be paid for the hours you work in addition to your ordinary hours an employee will not generally have an enforceable claim against their employer for payment if working additional hours. Having said that, employment contracts will not necessarily extinguish any entitlement to overtime that a worker has under an award or enterprise agreement.

Agreed annual salary
The employment contract should specify the level of remuneration. It should also specify whether superannuation is to be paid over and above the annual salary or whether the salary is inclusive of superannuation. An employment contract may also specify how frequently you will be paid.

It is worthwhile checking to see whether the specified salary amount is equal to or better than what is provided for in your applicable enterprise agreement or award.

Compliance with employment laws
Virtually all Australian workers are covered by the NES which is a set of minimum employment conditions. It includes such things as a maximum of 38 hours per week plus reasonable additional hours, request for flexible working arrangements, paid and annual leave, long service leave, minimum notice of termination, redundancy pay entitlements etc.

The terms set out in the employment contract should not be less generous than what is contained in the NES. If the terms are less generous they should be brought to the employer’s attention before you sign the employment contract. It is not necessary for all of the minimum employment conditions in the NES to be set out in the employment contract as they will apply in any case assuming the Fair Work Act applies to your employment.

Allowances and Reimbursement
Some work requires travel to external offices or sites within a state, interstate or other countries. Employers will typically have a number of policies that cover the administration of allowances and reimbursement of expenses. To be fully aware of their entitlements, an employee may like to request copies of all relevant policies concerning such entitlements before signing an employment contract.

Bonuses and Incentive Programmes
Some employment contracts make reference to “bonus schemes” which are more often than not subject to the employer’s discretion. It pays to give consideration to the wording of such clauses to ensure that the provisions regarding bonuses are achievable.

Summary
Employment contracts can be complex. You may not be able to achieve all of the benefits you were initially seeking but it is important to know where you stand. An employment contract should provide certainty.

It is recommended to obtain legal advice as soon as an employment contract has been provided to you. In most cases, obtaining legal advice on an employment contract and your circumstances is not very costly.

We represent our clients in both the Fair Work Commission and South Australian Employment Tribunal.

Practice Areas

Employment

Crescent Lawyers specialise in Employment matters and provide high quality and cost-effective advice and representation to both employees and employers.
We represent clients in both the Fair Work Commission and South Australian Employment Tribunal.

We provide advice and representation in the following areas:

  • Unfair Dismissal where it is alleged the dismissal was harsh, unjust or unreasonable
  • Employment contracts including advice on or preparing employment contracts
  • Redundancies including advice on whether a redundancy is genuine, applying for a redundancy or general rights and options
  • Underpayment of wages where it is alleged one has been underpaid or not paid for the work performed
  • Adverse Action and Unlawful Termination where action is taken against a worker or where a worker is sacked for temporary absence as a result of an injury or illness, asserting a workplace right or workplace discrimination such as on the grounds of race, colour, religion, age, sex, physical or mental disability, pregnancy, political opinion etc.
  • Bullying & Harassment
  • Disciplinary proceedings, performance review meetings, investigations or conciliation

It is important to keep in mind that the time limit to lodge applications for dismissal disputes is 21 days after the dismissal takes effect. It is therefore important to seek advice well before that time limit.

For all enquiries about Employment matters please contact the Principal Lawyer Belal Moraby on 8312 7055.

Feel free to have a look at our Insights page for the latest and relevant topics in Employment law.

Fees
As is required by the professional conduct rules, we ensure that you know up front what you will be charged.

We charge $250 inc GST for an initial consultation (up to 40 minute duration) to discuss and provide advice on employment issues. Outside of the initial consultation, our hourly rate is $400 inc GST.

We set out to give you a reasonably accurate estimate of our fees before we commence work on your behalf.  We are also required under the professional conduct rules to update you as to your legal fees and provide ongoing disclosure.

We represent our clients in both the Fair Work Commission and South Australian Employment Tribunal.
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