Employment Rights - Barwon Community Legal Service
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Employment Rights

The content on this site is information only and is not legal advice. If you need legal advice please contact us.

Learn more about your workplace and employment rights

Your rights at work are essential to your ability to do your job in a safe environment, with fair pay. Australian employment laws protect your employment rights. If you’re experiencing difficulties in the workplace, these laws may help you resolve the situation, make good any underpayment issues, or get compensation for unfair or unlawful treatment.

What is an underpayment of wages?

Underpayment of wages happens when an employer pays an employee less than the employee should receive, according to their enterprise agreement, industrial award, or the minimum wage rate.

Underpayment of wages

Underpayment of wages can be deliberate or accidental. For example, a deliberate underpayment may happen when an employer decides not to pay a worker the appropriate rate. This is sometimes known as wage theft.

An accidental underpayment may happen when the employer is paying a worker at one rate but hasn’t realised that the worker should be classified at a different pay rate.

Underpayment can also happen when an employer fails to include entitlements in wages payments, for example, overtime, penalty rates, leave loading and paid leave days.

It’s illegal for your employer to pay you less than your pay rate. If you’re covered by an award (also known as an industrial award, or a modern award), your minimum pay rate is in the award. If an award doesn’t cover your employment, your minimum pay rate is the minimum wage. Your employer can agree to pay you more than your minimum pay rate.

If an enterprise agreement covers your employment, it may specify your pay rate. If not, the relevant industry award or minimum wage applies.

If you’re starting a job and your employer wants you to work for no pay as a trial, this is also illegal. You’re entitled to payment for trial work.

Your employer is only allowed to deduct money from your pay if you’ve permitted them to do so. For example, your employer can only deduct tax if you’ve signed the forms giving them authority.

Any deductions that you haven’t permitted are known as unauthorised deductions. If your employer has been making unauthorised deductions from your pay, this is a form of underpayment of wages.

For more information, see the JobWatch factsheet Unlawful Wage Deductions.

The starting point is to check your payslips. Your employer is legally required to provide you with an electronic or paper payslip every time they pay you.

Payslips must contain information including:

  • The date
  • Your ordinary hourly pay rate
  • The number of hours you worked in the pay period
  • Amounts before and after tax
  • Any deductions
  • Superannuation contributions

If you know what your correct hourly rate should be, you can compare the information on your payslip with your hourly rate.

The Fair Work Ombudsman website has a pay calculator which can help you work out which award applies to you, and how much pay you should have received.

However, often this process is not straightforward. There are many things which may affect your pay, including:

  • Knowing which award or agreement covers your employment, or whether you are on minimum wage
  • Any penalty rates such as overtime, time and a half, or double time loadings
  • Any leave loadings
  • The deductions which the employer is permitted to make
  • Any allowances

Remember that if you’re a casual employee, you don’t get paid for leave, so you won’t be entitled to leave loading and some other allowances. We will need to check your award to find out what pay rates apply to your employment.

It’s sometimes challenging to work out whether you have been appropriately paid. However, if you suspect that you have been underpaid, there are services which can assist you in working this out.

We can help you identify and calculate underpayments.

Contact us to book an appointment.

What can I do if I’ve been underpaid?

If you suspect you’ve been underpaid, the first step is to gather your payslips, which should have information about your pay rates and hours worked. You should also get your bank statements to prove that the payments were made. If your payslips don’t contain the information you need, speak to us as soon as possible for legal advice. If your employer isn’t providing you with the correct information, they are breaking the law.

Once you have all the information, contact us to make an appointment.

What We’ll Do

We will calculate your pay and identify any underpayments.

Once you know how much is owing, you can speak to your employer about the underpayment. If your employer is willing to fix the issue, you can use the Fair Work Ombudsman’s guide, How to Fix an Underpayment, to help you sort it out.

If your employer isn’t willing to resolve the issue, you can apply to the Fair Work Ombudsman for assistance. We can help you with the application.

The Fair Work Ombudsman is independent, meaning that it won’t take sides. It will work with both you and your employer to try and fix the issue. However, it’s also worth remembering that the process is voluntary, so your employer doesn’t have to take part if they don’t want to. The Ombudsman will also use your application to decide whether to get involved, so there’s no guarantee that it will agree to take on your case.

If that process doesn’t work for you, you may wish to consider legal action. Before taking legal action, you need to send your employer a letter which outlines all the details of the underpayment. We can help you write this letter. There’s also a useful letter template on page 28 of the Fair Work Ombudsman’s Small Claims Guide if you wish to write the letter yourself.

If your employer decides to pay you the full amount of the underpayment, the issue ends, although you’ll need to check your future payslips to make sure the same problem doesn’t arise later.

If your employer doesn’t respond or refuses to pay, and your underpayment is less than $20,000, you can make a small claim in the Magistrates’ Court, or the Federal Circuit Court.

We can help you work out which Court is most appropriate for your circumstances.

Small claims are usually more informal than other Court proceedings, and they can be quicker and cheaper too. Usually, you represent yourself (no lawyers are involved). The Magistrate can also decide the case at the end of the hearing, rather than adjourning and then handing down a decision later (which can take weeks or even months).

For more information on what’s involved in making a small claim, see the Fair Work Ombudsman’s Small Claims Guide.

If your underpayment claim is more than $20,000, you will need to claim in the Federal Circuit Court’s Fair Work Division. This is a more complicated process, and you will need legal help. If you have a claim of $20,000 or more, contact us. We can give you advice and refer to a legal service which may represent you in Court.

Australian workplace laws require that your employer pays you a minimum of once a month. Usually, your award or agreement will say how often you’re to be paid. Payments can also be weekly or fortnightly.

Take action immediately if you’re not being paid:

  • According to your usual pattern; or
  • According to your award or agreement; or
  • At least once a month

This type of scenario is an underpayment of wages, so you will need to take the steps outlined above in <What can I do if I’ve been underpaid? (Link to section)>

You must make an underpayment of wages claim within six years of the underpayment.

What is unfair dismissal?

Unfair dismissal can happen when your employer terminates your employment, or your employer forces you to resign, in unfair circumstances. The law says that these types of circumstances are harsh, unjust or unreasonable.

Unfair dismissal

Termination of employment is also known as being sacked or fired.

Unlawful termination of employment is different from unfair dismissal because it concerns issues of discrimination or harassment.

Some circumstances in which an employer can legally dismiss an employee without notice include:

  • Serious misconduct, such as stealing, fraud, violence or workplace safety breaches
  • Casual employment (if shifts are irregular and you haven’t been employed for an extended period
  • If the termination falls within the agreed probationary period

Some circumstances in which an employer can legally dismiss an employee with notice include:

  • Work performance problems
  • Redundancy (it must be genuine. For example, the position is no longer needed)

Every situation is different, so if you were terminated, even for another reason, and you suspect it was unfair, it’s worth getting some legal advice.

If you believe the termination of your employment was unfair, you will need some legal advice to work out what to do next. One of the most critical aspects of legal advice is to work out whether you meet the <criteria for making an unfair dismissal claim (link to section below What is the criteria for making an unfair dismissal claim?)>.

Casual employees don’t have the same employment rights as permanent workers. To be eligible to claim unfair dismissal, a casual employee must have been engaged (or rostered) to work on a regular and systematic basis with a reasonable expectation of ongoing work. In other words, you must have worked regular shifts over a long period, with the expectation that your employment would continue.

Visit the Fair Work Commission’s website for downloadable unfair dismissal guides.

For preliminary advice, make an appointment to see us. We can help you work out where to get assistance.

To be eligible to make an unfair dismissal claim, you must meet the following criteria:

  • The employer must have employed you. Sometimes, there can be confusion about whether a worker was employed, especially in work arrangements for contractors. If your status is unclear, seek legal advice
  • If you were a casual employee, you must have been given regular work over a long time (many months or even years), with the reasonable expectation of ongoing work
  • An award or enterprise agreement covered your employment, or your income is below the limit at the relevant time. To find out more, contact us
  • You were employed for at least six months if your employer was a small business (with fewer than 15 employees), or for at least 12 months if your employer was a company that was not a small business
  • Your dismissal was harsh, unjust or unreasonable
  • Your dismissal was not a genuine redundancy
  • You were dismissed less than 21 days ago 

For more information, visit the Fair Work Commission’s website to take the Unfair Dismissal Eligibility Quiz

Harsh, unjust or unreasonable are the words used to describe why a dismissal is unfair. 

Whether a dismissal is harsh, unjust or unreasonable depends on the situation, and the only way to work it out is to take a detailed look at your circumstances.

Some examples of harsh, unjust or unreasonable dismissals include:

  • The termination of employment didn’t have anything to do with your ability to do your job, the way you performed the work, or your conduct
  • You weren’t notified of any problems or allegations against you, and you didn’t have a fair opportunity to respond
  • If you had to attend any meetings with your employer where dismissal was discussed, you didn’t have a reasonable chance to organise a support person to go to the meeting with you
  • Your employer hadn’t given you any previous warnings that your job performance was unsatisfactory
  • Your employer didn’t follow proper procedures when terminating your employment (procedures which were appropriate for the size of the organisation)

You have 21 days from the date your employment was terminated to claim unfair dismissal in the Fair Work Commission (FWC). 

In some rare circumstances, the FWC may allow you an extension of time to lodge your application. However, the circumstances must be exceptional. You should not rely on getting an extension of time.

To make a claim, you need to lodge an application form in the FWC. You’ll need to provide personal and work information, as well as the reasons your employer gave you for the dismissal.

You’ll need to pay a fee for the application. For more information about how to lodge an unfair dismissal application, as well as application fees, visit the FWC website.

You can lodge your application online or in person at an FWC registry.

The FWC will send a copy of your application to your former employer.

Your former employer then has seven days in which to respond to your application. They must file a response form in the FWC. The FWC will send the response to you.

By this stage, the FWC will have set a time for you and your former employer to attend a conciliation conference. This is a type of meeting which is run by an FWC conciliator. The aim is to work out whether there’s a way to settle the matter.

Many unfair dismissal claims settle at this stage. If they don’t settle, the FWC refers them for hearing.

In its response, if your former employer objects to your claim because it questions your eligibility, this objection will also be referred for hearing. This is known as a jurisdictional hearing. This type of hearing must happen at some stage before the main hearing.

If the FWC decides you aren’t eligible to claim for unfair dismissal, your matter will end. If it decides you are eligible, it will make a date for a hearing (which is similar to a trial), at which both parties can provide evidence (through witness testimonies and documents called affidavits).

You’ll also need to provide other evidence of the dismissal, for example, any text messages or emails between you and your former employer.

It then makes a decision which is binding on you and your former employer. Possibilities for decisions may include:

  • Orders for compensation
  • Orders for reinstatement (giving you back your job)
  • Dismissal of the application (a finding that the termination of your employment  was fair)

For more information about the claim process, see the FWC’s flowchart.

If you decide to make an unfair dismissal claim, you don’t need a lawyer to represent you. You can represent yourself at all stages of the process.

However, you need to understand how the law works in this area, the process, and also whether you’re eligible to claim.

If you make a claim even though you’re not eligible, you may be required to pay your former employer’s legal costs because they had to respond to and defend your claim. Similarly, if you take your claim to trial even though your conciliator has indicated that you don’t have a strong case, you may be liable for your employer’s legal costs.

You need to have a good understanding of the risks and your chances of success.

If you choose to represent yourself, the FWC website has guides for each step of the process, including videos, forms and quizzes.

To discuss your options for legal representation, contact us to book an appointment.

A redundancy can be an unfair dismissal if it wasn’t genuine. 

A genuine redundancy may happen because of a downturn in your employer’s business, or if your employer no longer needs your role in its organisation.

However, occasionally an employer will make an employee redundant to try and avoid an unfair dismissal claim.

Some of the indicators that a redundancy isn’t genuine include:

  • The employer appoints a person to perform your duties after terminating your employment
  • The employer didn’t follow proper consultation procedures set out in a workplace agreement
  •  It would have been reasonable for the employer to have redeployed you (given you work elsewhere in the business)

These aren’t the only reasons a redundancy may be an unfair dismissal. If you’re concerned about your redundancy, contact us to discuss your situation.

What is workplace bullying?

Four main elements define workplace bullying:

  • It happens between workers, for example, you and a co-worker, you and your manager, you and a group of co-workers
  • It is repeated (meaning it happens more than once)
  • It is unreasonable
  • It is a workplace health and safety risk

Workplace bullying

Unreasonable behaviour includes abuse. There are different types of abuse, all of which can be workplace bullying if the abuse is repeated and is carried out by a workmate, manager, or group of workmates. Abuse can be:

  • Verbal – for example, being sworn at, suffering racist or hurtful remarks
  • Physical – for example, being pushed, shoved, punched or locked in a confined space
  • Psychological – for example, being given tasks that aren’t part of your job, suffering intimidation or threats
  • Social – for example, isolating you from other work colleagues

All types of workplace bullying are serious, but some are criminal offences, such as assault. Some workers experience assault at work, including hazing of new apprentices as a type of initiation. If you’re experiencing bullying that involves assault or threats of harm, we recommend you report it to the police immediately.  

Workplace bullying can make you feel scared, anxious, stressed, depressed, and many other emotions. Remember that everyone has the right to feel safe at work.

Employers are legally required to provide a safe workplace for all workers. Workers must also avoid causing or risking harm to any other workers. Workplace bullying is often a safety issue. 

If you’re bullied at work, it’s a good idea to write down every bullying incident, including:

  • The date
  • The time
  • What was said or done and who said it or did it
  • Whether anyone else saw the incident
  • If you told other workmates or your managers about it, what you said and what they said
  • The details of any action taken by your employer

If you feel safe, you can talk to the person who is bullying you (the perpetrator) and ask them to stop. You will need to make notes of this conversation. If possible, have a support person with you as a witness.

If you don’t feel safe, that’s understandable. Many people who experience workplace bullying feel too uncomfortable to discuss the issue with the person doing the bullying.

If the bullying doesn’t stop or you’re not comfortable talking to the perpetrator, you can speak to your manager or someone else in management.

If you’re being bullied by your manager and don’t feel safe to discuss the issue with them, think about approaching someone else in management. Again, you should take notes of everything that’s said, and you should have a support person with you as a witness.

If you can’t take this action or the situation isn’t resolved, you’ll need some advice about what to do next. For free advice, you can:

If you fear that you or your family will be harmed, you need to contact the Police.

If you’re in danger, call the police on 000 immediately.

You can make formal complaints about workplace bullying to the Australian Human Rights Commission. The Commission will hold a conciliation to try and resolve the issues. Conciliation is a meeting between you, your employer, and sometimes the the perpetrator, in the presence of a conciliator. The conciliator is a Commission staff member whose role is to guide you in resolving the issues. Possible outcomes include:

  • Reinstatement of employment
  • Compensation
  • New employment arrangements

For more information, see the Commission’s Complaints information for young people factsheet

If the bullying involves work safety, you can make a complaint to Worksafe Victoria. You can make a phone call or fill in an online form, and then Worksafe Victoria may choose to investigate the issue.

For more information, visit Worksafe Victoria’s Make a complaint website page.

In some circumstances, you can apply to the Fair Work Commission for a Stop Bullying Order.

You may choose this option if the issue hasn’t resolved, or if you feel that the only way to fix the problem is with an Order.

To be eligible for a Stop Bullying Order:

  • Your employer must be an organisation covered by the fair work laws (this includes most private businesses and some government organisations)
  • You must have reason to believe that you’ve been bullied and that it will continue
  • The bullying is a risk to workplace health and safety

You can fill out a form and submit it online. The Commission will then hold a hearing.

If it decides that there is a bullying issue, it can make an Order requiring the bullying to stop. This is equivalent to a Court Order. Failure to follow the Order can result in fines against the employer.

These Orders are only useful in limited circumstances. You can only apply if you’re still working for the employer and if you intend to continue working for them.

It’s worth getting legal advice before using this option.

The FWC website has more information about Stop Bullying Orders, as well as an online application form.

Reduction in work hours

What can I do if my work hours are unfairly reduced?

If your work hours are changed, your approach to resolving the issue will depend on how you’re employed.

If you’re a full-time or part-time employee with a contract or workplace agreement, you need to check the terms of your agreement to see if it gives the employer the right to change your hours.

If there’s nothing in your contract or agreement to allow the employer to do this, the change may be unfair. It’s known as a unilateral variation because the employer has made the change without your agreement. Usually, contracts and agreements can only change with the agreement of both parties (unless there is a specific clause in the contract that allows the change).

If the change is in accordance with your contract or agreement, there’s usually a notice requirement. You need to check to make sure you’ve been given the correct amount of notice.

If you’re employed under an award, you also need to check award provisions to find out more about your rights. Most awards have requirements that the employer consults with employees before changing work hours.

In all of these circumstances, if your employment contract, agreement or award is breached, you need legal help.

You can either:

If you’re a casual employee, it’s usually expected that your work hours will change because of the irregular nature of casual work. However, if you have been employed on regular rosters or shifts over a long period and reasonably expect to have ongoing work, the situation may not be straightforward. You will need some legal advice about your rights.

For more information, see the Fair Work Ombudsman’s website page on rosters.

Many employers have suffered a reduction in working hours and roster changes due to the impact of COVID-19. If this has happened to you, you may need to consider JobKeeper payments (until the Government discontinues this scheme), or other forms of financial support, such as Centrelink payments. Contact us for advice about JobKeeper and other benefits.

What is an employment contract?

An employment contract is an agreement between you and your employer about the terms and conditions of your employment. The contract’s terms are usually in a document (also referred to as a contract) which you and your employer sign. Employment contracts can also be verbal agreements.

Employment contracts

Once you and your employer have both signed your employment contract, your employer can only legally change it if:

  1. There are provisions (or terms) in the contract that allow for the change; or
  2. Your employer has discussed the change with you, and you agree to it

In other words, a change can only be made if you’ve already agreed to it. Your employer is not allowed to pressure or influence you to agree to the change.

If your employer tries to change your signed contract without your agreement, this is known as a unilateral variation, or unilateral change, because it’s one-sided: your employer has done it without your agreement.

This type of change isn’t allowed under Australia’s fair work laws, especially if the change affects basic terms of the contract, including:

  • Part-time or full-time status
  • Work hours
  • Pay

In some cases, a unilateral variation of contract may make it impossible for you to do your job. For example, if your work hours increase from part-time to full-time and you have young children but no childcare support.

Fair work laws describe this as a termination of employment at the initiative of the employer because it was the employer’s actions that made it impossible to perform the contract.

In these circumstances, you may be able to negotiate a new employment contract, or make an <unfair dismissal (link to unfair dismissal section above)> claim against the employer.

Australian fair work laws give all workers protected rights while at work, including workplace rights. Among the many workplace rights, employees have the right to be offered employment terms and conditions that are fair, when compared with other employees.

The National Employment Standards (NES) set out the minimum employment standards for all Australian employees, including:

  • Maximum work hours
  • Leave entitlements
  • Flexible working arrangements

Employers are required by law to offer you at least the minimum standards as terms and conditions of your employment. Find out more information about the NES.

If an employer tries to get you to agree to employment contract terms that breach any of the protected rights, the terms become known as objectionable terms

If your employment contract contains objectionable terms, they are invalid and the employer can’t make you comply with them.

If you’re concerned that the employment contract is unfair, you should get legal advice before you decide whether to sign it.

If you’ve already signed an employment contract and you’re worried that it’s unfair, you’ll need urgent legal advice to ensure you don’t miss out on your entitlements and protected rights.

Your employer can’t force you to sign or agree to the contract, and you must be able to understand the agreement you’re making. If you’re forced into signing, or if you don’t understand, the contract won’t be legally binding.

Contact us for advice about employment contracts.

COVID-19 and employment issues

Does Barwon Community Legal Service offer extra services during the COVID-19 pandemic?

During the COVID-19 pandemic, many employees have needs for legal services and advice, especially concerning JobKeeper payments and casual employment.

During the pandemic, we offer advice on:

  • Employee rights and eligibility in respect of the JobKeeper legislation
  • Impact on social security benefits
  • Stand down provisions in workplace agreements and employment contracts
  • Unfair dismissals

If your employment has been affected by COVID-19, contact us for more information.

How we can help you

For underpayment of wage issues, we can:

  • Identify and calculate underpayments
  • Send a letter of demand to your employer
  • Make applications to the Fair Work Ombudsman

For unfair dismissal claims, we can help you work out whether your dismissal was unfair, and draft your application to the Fair Work Commission.

We can also give you referrals to other organisations which provide free legal advice and assistance.

Working through employment issues can be difficult

We’re here to support, help and guide you.

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Last modified on July 1st, 2021 at 4:17 pm

The content on this site is information only and is not legal advice. If you need legal advice please contact us.

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