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Underpayment of Wages
Despite increasing media and political attention on the issue of “wage theft”, some employers continue to underpay their staff. Underpayment not only leaves employees financially out of pocket, but can also lead to feeling disenfranchised and undervalued at work. We are here to help. Since our firm’s inception, we have assisted countless employees across a wide range of industries to recover amounts owed to them by their current or former employer.
The amount of pay that an employer is required to provide to an employee may be governed by any one of the following documents:
- a national minimum wage order issued by the Fair Work Commission, which establishes the minimum wage for employees not covered by a modern award or enterprise agreement;
- a modern award, which sets out the minimum terms and conditions applicable within a particular industry;
- a company-specific enterprise agreement, which can overrule a modern award provided that each employee is “better off overall”; or
- an individual contract of employment between the employer and employee.
In an underpayments matter, the first step is to identify which of these documents applies to you. Even if you do not have a written contract of employment, you may still be covered by a modern award or enterprise agreement.
You can use the Fair Work Ombudsman’s 'Find My Award' tool to determine whether you are covered by a modern award. You can also use the Fair Work Commission’s search tool to determine whether your employer has an enterprise agreement in place.
If you suspect that you are being underpaid, you should act promptly. Under the Fair Work Act 2009 (Cth), an employee must commence court proceedings to recover an underpayment within six years of the date that the underpayment arose. If the employee fails to do so, they are no longer able to recover that underpayment.
You may try to resolve the underpayment issues directly with your current or former employer. Under the general protections provisions in the Fair Work Act 2009 (Cth), an employer must not take any adverse action against an employee because the employee has exercised a workplace right to question their pay.
If you are unable to resolve the issues on your own or you would prefer to involve a lawyer, we can assist you by:
- providing you with clear advice about your entitlements;
- assisting you to calculate the quantum of your underpayments claim (in other words, how much you are owed);
- sending a letter of demand to your current or former employer;
- attempting to negotiate a settlement without issuing court proceedings, in order to minimise costs; and
- if your employer is unwilling to negotiate, issuing court proceedings to recover the amount owed to you.
If your claim is for less than $20,000, you may be able to utilise the “small claims” jurisdiction in either the Federal Circuit Court or the Magistrates’ Court of Victoria. This process is designed to be quicker and less formal than other court proceedings, and parties usually aren’t required or permitted to be represented by lawyers. You can read more about bringing a small claim on the Fair Work Ombudsman website.