Underpayment of Workers in Australia

$12,086.00. This is the total amount in underpayments owed to delivery drivers after the Fair Work Ombudsman audited 34 Pizza Hut outlets at the beginning of 2017.

The Fair Work Ombudsman found that 24 out of the 34 franchisees that were audited were in breach of a number of workplace laws including applying the incorrect modern award or enterprise agreement, not maintaining employment records and misclassifying delivery drivers as independent contractors instead of employees.

One such franchisee is now having to defend legal action commenced by the Fair Work Ombudsman in the Federal Circuit Court. It is alleged that Skyter Trade Pty Ltd and its director, Mr Dong Zhao who owns and operates the Pizza Hut franchise outlet in Upper Coomera asked a delivery driver to provide an Australian Business Number (ABN) and then treated him as an independent contractor. This alleged ‘sham contracting’ arrangement resulted in full entitlements (including minimum hourly wage rate, overtime payments, superannuation and allowances for laundry expenses) not being paid.

If found guilty of breaching the Fair Work Act 2009 Skyter Trade Pty Ltd faces penalties of up to $54,000.00 per each contravention and Mr Zhao will face penalties of up to $10,800.00 per each contravention.

What do I do if I think I’m being underpaid?

  1. Check the law!

The first thing you should do is research and verify/check the minimum wage that you are entitled to under your modern award, registered enterprise agreement or the national minimum wage (for employees that are not covered by an award or enterprise agreement), as applicable.

If you are unsure whether you are covered by a modern award contact the Fair Work Infoline on 13 13 94.

There are also online tools that you can use at www.fairwork.gov.au including Pay Check Plus to find out your correct award and minimum wage as well as templates for payslips.

  1. Try to sort out the issue with your employer first

Once you know your entitlements discuss the issue with your employer.

Fair Work encourages employees to try to work out any issues about employment with their employer as a first step before making a formal request for help with Fair Work. It might be a legitimate mistake by the employer which can then be corrected through adjusting the salary.  Working the issue out informally can save you time, money and the employer’s reputation.

If your employer refuses or has purposely underpaid wages, you should make a written request that the situation be rectified. We recommend that you contact a solicitor or your union representative to assist you with this request.

  1. Ask for help

If your employer refuses to resolve the matter then you may wish to contact the Fair Work Ombudsman to lodge a complaint.

Note that Fair Work can assist not just with underpayment, but other workplace issues such as ending employment, discrimination and leave.

Employers and employees seeking assistance can consult the range of free tools and resources available on the Fair Work Ombudsman and the Fair Work Commission websites, or call the Fair Work Infoline on 13 13 94.

If you know someone who may be being underpaid but English is their second language, a free interpreter service is available on 13 14 50, and information on the website is translated into 26 languages at www.fairwork.gov.au/languages.

  1. Obtain Legal Advice

The Fair Work Ombudsman will not take on every case, and will only litigate some. If you wish to make a claim against your employer (whether it be for underpayment, employment termination, discrimination or other workplace issues) we advise you contact your legal representative to advise you on your rights and options.

This article was authored by Monica Drivas and Emma O’Bree of MBA Lawyers.