You’re being underpaid – now what?

May 28, 2017 Damien Andreasen No Comments

You’re being underpaid – now what?

If you’re reading this, we’ll assume that you’ve done the math and figured out that you’ve been potentially been underpaid by your employer.

So now what?

We’ve outlined the next steps that most employees who think they’ve been underpaid should take:

  1. Make sure your sums are correct, and you’re taking into account deductions like tax, HECS, union membership fees, etc. These things can add up, and oftentimes your pay can be much less than anticipated, simply due to accurate and normal deductions. Check your math – and your payslips – carefully before jumping to conclusions.
  2. Check what award or agreement you’re on. You may need to dig out the contract you signed upon commencement of work. If you’re on an EBA, your employer should have a copy on site for you to refer to. Keep in mind that even if you are on an EBA, you should not be worse off (see the Better Off Overall Test for more details) than you would be under the relevant award. However, it’s possible to be on what’s called a ‘zombie agreement’, which means you’re getting paid below award rates, but it’s technically legal. If that’s the case, you may need to challenge your award with the FWO.
  3. Make sure you’re comparing your pay rates to the correct agreement or award. For some industries, this will be pretty straightforward – if you work in a clothing store, for example, you’ll be covered under the General Retail Industry Award. However, there are dozens of modern awards, so make sure you’re looking at the right one.
  4. If, after all those checks, you’re still convinced that you’ve been underpaid, you should approach management. It may just be an accident, and can be resolved easily.
  5. If your manager isn’t helpful, or is dismissive of your claims, you should make another request for the issue to be resolved, this time in writing, so you have a record of the fact that you’ve raised the issue.
  6. If the issue persists, and you have evidence that your underpayments are deliberate and in breach of your rights, contact the Fair Work Ombudsman, who will advise next steps.
  7. Once you’ve lodged an enquiry with the FWO, Fair Work Australia will launch an investigation. If their findings confirm that you’re right, and your rights have been breached, they’ll generally proceed in one or more of the following ways:
  • Requesting that an employer fix the situation as soon as it is practical, or within 2 weeks of receiving a letter of contravention
  • Mediation
  • Allowing an employee to seek payment themselves
  • Issuing an official letter of caution that an employer is in contravention
  • Court action may be taken but is not in the public interest to do so
  • Issuing a fine
  • Obtaining a court order to prevent further violations from an employer
  • Making an enforceable undertaking which contains an admission of guilt from an employer and the actions they are undertaking  to remedy the contraventions
  • Penalising an employer through the courts who are violating the Fair Work Act.

Keep in mind that, though intimidating, you’re well within your rights to pursue repayment of wages, and it’s illegal for your employer to make a threat of dismissal towards you, or any employee seeking the assistance of the FWO.

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