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Published: 02 January 2018
Author: Mark Comito
Whether you pursue a back pay claim will depend on the size of your claim, how much you are seeking, and also the legal costs that you will occur as a result of prosecuting your claim all the way to court.
So obviously the more significant the underpayment the greater the incentive you may have to pursue your matter to court.
Generally under the Fair Work Act, costs are not recoverable from the unsuccessful party which means that even if you succeed with an underpayment claim in court, your legal costs may not be claimed against the employer.
However even if your claim is as little as $6,000.00 it still may be worthwhile for you to talk to lawyer to get some advice about the small claims jurisdiction where claims of under $20,000 are heard. Those claims can be pursued in a friendly environment in the Federal Circuit Court of Australia where individual employees are given a fair opportunity to pursue their claim.
Generally in the small claims jurisdiction, employees are not legally represented nor other employers so as to enable the procedure to be as informal as possible.
It’s important if you are working for an employer and you suspect that you are being underpaid to check the proper rate that you should be entitled to receive during normal working weekly hours and then find out what the penalty rate is for working on Saturdays or Sundays. If you suspect that you are being underpaid for any amount you should immediately obtain legal advice to confirm whether or not you are underpaid so that something can be done about it sooner rather than later. You have six years from the date of the underpayment to pursue your case in court. You don't want to leave your claim too late so that you are not able to do anything about your underpayment.
Quite often in the hospitality industry there are rosters which specify when employees should be working and the employee regularly works beyond their rostered hours. So the question becomes this: how does an employee prove that they have worked more than the hours that they will rostered for?
If you suspect you are being underpaid and you are working in hospitality (or any other industry for that matter where shift work is common) then you should take detailed entries or notes about the hours that you work on a daily basis and then raise this with your employer. You will need to check on the applicable penalty rates or wage rates which may apply to your span of working hours.
You shouldn't have to put up with being underpaid in your wages. You have rights to raise with your employer, that you are being underpaid and if the employer does not respond initially, then you should send them a letter outlining why you think you are being underpaid.
If still there is no response from your employer then you should seek legal advice. It is unlawful for an employer to threaten your job security should you raise an inquiry or complaint about being paid proper wage rates.
It is unlawful for an employer to take “Adverse Action” against you such as reducing your hours of employment or change your roster to hours they know that you are unable to work, because you have raised a complaint/enquiry about pay rates.
A few weeks ago I received an enquiry from a young worker of 19 years old who had been working in an aged care facility as a cook. He didn't know whether or not he was being underpaid. At the initiative of his mother, the young worker consulted us and we ascertained that he was underpaid according to the Award which applied to him according to particular skills and classification. Often I have parents escort their children to seek advice from us, and it's quite helpful to have parents involved as well because they are the ones usually who financially and emotionally support their child to take litigation.
If your employer does not pay superannuation or annual leave you have a right to pursue your case or claim to court. You can pursue any underpayment of superannuation or annual leave going back within six years. It's important that you first undertake some calculation of what you have been paid or underpaid and then raise that with your employer.
If your employer does not respond favourably then you should seek advice from your lawyer to see what can be done about it.
You can also report (anonymously) any complaint you have about your employer’s failure to pay superannuation to the ATO Superannuation Complaints service.
Mark Comito is a Partner of the firm and is an Accredited Specialist (Law Institute of Victoria) in Workplace Relations, which encompasses employment rights, breach of employment contract, Award/Enterprise Agreement breaches, unlawful terminations of employment, anti-discrimination, industrial disputes and workplace safety.
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