If you believe that you have been underpaid, our team of specialised employment lawyers is here to help.
Recently, there has been a surge in businesses incorrectly paying their employees.
Underpayments can occur in numerous ways. For instance, a business may not pay:
- the correct award entitlements such as overtime, penalty rates for working on weekends and public holidays,
- allowances such as uniform, laundry, meal allowances, tools, and travel using a personal vehicle,
- contractual salary and wage entitlements, or
- bonuses and commissions.
Understanding Different Underpayment Claims
Various underpayment claims can be brought against a business. These include
- non-payment of super or late payment of super,
- not paying super to contractors who provide personal services,
- not paying employees in full in breach of section 323 of the Fair Work Act (this includes salaried and award-free employees),
- not paying award entitlements in breach of section 45 of the Fair Work Act,
- not paying entitlements under an enterprise bargaining agreement in breach of section 50 of the Fair Work Act,
- unlawfully deducting from an employee's pay in breach of section 324 of the Fair Work Act,
- requiring employees to spend money in order to secure a job or as part of their job, in breach of section 325 of the Fair Work Act,
- failure to provide a payslip to employees within one working day of payment, in breach of section 536 of the Fair Work Act, or
- failing to provide a payslip which correctly provides all the details required under regulation 3.46.
How to Proceed with an Underpayment Claim?
In order to commence the claim process, it's vital to seek advice from a specialist employment law firm that has a robust understanding of the Fair Work Act.
If a business breaches the various provisions specified in the Fair Work Act (some of which are mentioned above), they are liable for a civil penalty.
Currently, the fines are around $18,000 per contravention for an individual and $93,000 per contravention for companies. For serious contraventions, these fines can increase tenfold.
Not only are these fines issued against the business, but also against any individuals within the business who were involved in the contravention. This means that individuals who manage and own the business can be personally liable for your underpayment. This also helps ensure that employees entitlements are properly paid even if the business goes into liquidation
Letter of Demand
The initial step we take to assist our clients is drafting a strongly worded letter demanding payment. Often, having a lawyer send a letter of demand is more persuasive and effective than sending correspondence yourself.
Our letters set out in detail the consequences for the business should they fail to pay your lawful entitlements
Businesses are required by law to keep employment records for at least seven years. Employees, including former employees, have the right to request their employment records.
If a business fails to provide the records requested, it is seen as a contravention, which gives rise to penalties (and the fines mentioned above apply).
The Fair Work Regulations set very specific requirements as to the type of records that must be kept and timeframes in which they must be provided to employees after a request has been made.
There is also provision in the Fair Work Regulations to compel your employer to attend an interview where you can ask questions about your employment records (if they don’t follow the request, then there’s a penalty imposed).
If required, we can commence litigation against the business and individuals personally involved in the contravention to recover your entitlements.
We will be seeking your entitlements to be repaid and fines be imposed to punish the business for their breach. These fines can be quite significant.
Starting a court claim under the Fair Work Act does not generally expose you to a cost risk, meaning that win or lose, you don't have to pay the other side's legal costs, provided you've acted reasonably and your claim has merit (which we verify for you). This removes any uncertainty or fear that you might have to pay the business's legal costs.
If legal proceedings are required to be commenced, we find that a significant majority of them can be resolved at the mediation stage, without proceeding to a hearing. Our services are cost-effective and affordable.
MKI Legal has lots of experience conducting claims of this nature. If you’ve been underpaid, contact us for a free confidential discussion.