Who are we?Kylie Porter

Industrial Officer at the Working Women's Centre

https://wwcsa.org.au/

Rachael Seaforth

Coordinator of the Young Workers Legal Service

http://www.ywls.org.au/about.html

The Basics

• Tonight, we're going to cover the basics.

• No doubt, you will have more questions. We will try to answer some of those questions tonight however you will also be able to give us a call at a later time:

Young Worker Legal Service • Free service providing legal advice and representation to

young workers

Working Women's Centre • Provides free information, advice and representation to

women and vulnerable workers about their rights at work.

How do you know what you should be paid?Modern awards

• Awards (modern awards) are legal documents that outline the minimum pay rates and conditions of employment.

• There are more than 100 industry or occupation awards that cover most people who work in Australia.

• Awards apply to employers and employees depending on the industry they work in and the type of job worked.

What is the minimum wage:• The Australian industrial system has an absolute minimum base rate of pay. This rate of pay is reviewed

every year.

• No one in Australia over the age of 18 (and not on a traineeship/apprenticeship), whether a resident, a

migrant student or worker should be paid less than the minimum wage.

• The national minimum wage is currently $19.49 per hour

or $740.80 per 38 hour week (before tax).

• You cannot be paid less than their applicable minimum wage, even you agree to it.

• The minimum wage is set in the Modern Awards.

Allowances, penalty rates and Loadings

On top of your BASE wage, most workers are entitled to monetary allowances, such as penalty rates for working outside of ordinary hours and other monetary loadings.

Penalty Rates

Employees often get a higher pay rate when working:

• weekends

• public holidays

• overtime

• late nights shifts or

• early morning shifts.

Allowances

Allowances are extra payments made to employees who:• do certain tasks or have a particular skill

• use their own tools at work

• work in unpleasant or dangerous conditions.

Common allowances include:• uniforms and special clothing

• tools and equipment

• travel and fares

• car and phone

• first-aid

• leading hand / supervisor

• industry of employment (eg. building and construction)

Casual LoadingsA casual employee does not have a firm commitment in advance from an employer about how long they will be employed for, or the days (or hours) they will work. They do not have to commit to all work an employer might offer.

For example, an employee who works to a roster that could change each week and can refuse or swap shifts is casual.

A casual employee:• has no guaranteed hours of work• usually works irregular hours• doesn't get paid sick or annual leave• can end employment without notice, unless notice is required by a registered agreement,

award or employment contract.

Most casuals in Australia are entitled to a 25% loading on top of their wage.

• For example, if you are working in a restaurant then your base rate might be $20.06. If you are a casual employee then you will be entitled to an additional 25% loading on top of this. Your total hourly wage would be ($20.06 + 5.015 25%) = $25.075 (this does not include other penalty rates and allowances that might be applicable).

Casual employees entitlementsWhat do casual employees get?

Casual employees are entitled to:

• a higher pay rate than equivalent full-time or part-time employees. This is called a 'casual loading' and is paid because they don't get benefits such as sick or annual leave

• 2 days unpaid carer's leave and 2 days unpaid compassionate leave per occasion

• 5 days unpaid family and domestic violence leave (in a 12-month period)

• unpaid community service leave.

Example: how to find your legal rate of pay

https://calculate.fairwork.gov.au/FindYourAward

How to calculate your underpayment

You will need details of:

• Your correct rates of pay

• What you have actually been paid

• The hours you have worked

Your underpayment = what you should have been paid minus -

what you were actually paid.

Telling your employer –writing a“Letter of demand”

Dear Boss,

I write regarding my employment with your business. I have been underpaid by you as follows:

• Underpayment of wages: $11,000

• Underpayment of superannuation: $1045

You did not pay me at the correct award rate. For the period of 1 July 2019 to 30 June 2020, you paid me $15 an hour. However I should have been paid at Level 3 of the Restaurant Industry Award 2010, as my duties included working in the bar serving alcohol, and helping to train and supervise junior staff. The total amount owing for underpayment of wages is $11,000.

The total amount that should have been paid to me was $27,645. You paid me $15,600. There is a total amount of $12,045 owing to me.

I request that you make the total payment of $12,045 to me within 14 days of this letter.

If I do not receive payment within that time, I put you on notice that I will be commencing proceedings for unpaid wages against in the South Australian Employment Tribunal (SAET) without further notice.

If I am forced to commence proceedings against you, I will be seeking an order from the SAET that you pay pecuniary penalties for your various breaches of the civil remedy provisions of the Fair Work Act.

It is hoped that this will not be necessary, and I look forward to a quick and amicable settlement of the outstanding unpaid wages.

Regards

Employee

Underpayment claims

If your employer does not pay you what you are owed, you can lodge a claim for the underpayment in the

• South Australian Employment Tribunal or

• Federal Circuit Court.

They may also be liable for penalties for failing to pay you.

Speak to us for further advice.

Types of Employment

• Employee – Part time /full time/Casual

• Contractor

• Sub-contractor

• labour hire

• Informal labour market

What is an Employee

• Employees work for wages or a salary and have tax withheld from their pay.

• Can be full time, part time, casual

• Work at home or from a place of business and can be directed when, what and how to do a task.

• Is considered part of the business.

Contractor – sometimes known as Independent Contractor

• Contractors generally run their own business.

• They have an Australian Business Number –just because you have an ABN does not necessarily mean you a contractor

• They send invoices to CLIENTS for their work to be paid.

• They buy and use their own equipment

• Can work for more than one customer/business

• Work finishes when the job is completed.

• Can subcontract work

• Can negotiate their own hourly rate

• Start and finish times might be negotiated but generally a contractor dictates their own hours

Sub- Contractor

• Is a contractor who is performing work for a contractor.

• Also has own ABN.

Labour Hire

• The worker works for an agency, who pays their wages and entitlements.

• The worker performs work for a business who pays the agency.

• Is often short term, or for a particular task or project.

• Or can occur in apprenticeships or traineeships (eg TAPS)

Informal Labour Market

• Lack of formal documentation/agreement

• Work concealed from public authorities

• May be self-employed or employed

Sham ContractsSham contractors

• If you have been engaged as a contractor but believe you’re an employee, you may be in a sham contracting arrangement.

• A sham contracting arrangement is when an employer attempts to disguise an employment relationship as a contractor relationship. They may do this to avoid certain taxes and their responsibility for employee entitlements like:

• minimum wages

• superannuation

• leave

• It’s illegal for an employer to:

• misrepresent an employment relationship as an independent contracting arrangement

• dismiss or threaten to dismiss an employee for the purpose of engaging them as a contractor

• say something false to persuade an employee to become a contractor

[from business.gov.au]

ABN/TFN/ACN

TFN - tax file number.

• It is used to identify you in the tax and super systems. You apply once for a TFN and it is yours for life.

• You don’t need to have a TFN, but if you don’t have one, you have to pay a higher rate of tax, and won’t be able to apply for other benefits.

ABN - Australian Business Number.

• 11 digits

• It is used by businesses to interact with government such as the ATO, when they withhold tax from your wages.

• Businesses use it to confirm their identity when issuing invoices

• Your employer’s ABN should be listed on your payslip

ACN - Australian Company Number

• 9 digits

Unpaid Internships – volunteer work

• An unpaid work experience arrangement or unpaid internship can be lawful if it is a vocational placement – ie for education purposes - or if no employment relationship found to exist.

• The arrangement must be for the benefit of the person doing the placement, not the employer.

● Unpaid work experience is legal when done as part of a vocational placement.

● Otherwise, unpaid work is illegal if an employment relationship is found to exist.

○ You must not be doing ‘productive’ work.

○ The main benefit from the relationship must be the experience you gain

from it.

○ You must receive a meaningful learning experience, training, or skill

development.

○ If you education provider is not involved in the placement then that may

indicate it is unlawful

Vocational Placements

What is a vocational placement?

• Occurs when you are studying at a vocational college, and part of your course requires you to complete a number of weeks as “work experience” for credit towards your course.

• The law makes a special exception for vocational placements and your employer host is not required to pay you, as long as you are doing the work toward your course credit.

Example: Nitin is studying hospitality at a vocational college. As a part of his course he is expected to complete 13 weeks of “work experience”.

If Nitin’s only duties are washing dishes for 13 weeks, he might question whether he is truly completing a vocational placement, or whether he is just providing free labour to the host.

Examples: Unpaid internship - legal• Trang is in her last year of commerce at Adelaide

University. She decides to volunteer at a local firm to get some experience. The firm writes back and welcomes her to do a placement. This placement will be over the winter holidays.

• Trang arrives on her first day and is told that she will shadow a partner for the first week. Trang goes to meetings and takes notes but it mostly sitting and learning. Trang offers to get coffees and does drafts some journal summaries for the partners to read. Trang does this for 2 weeks, working 9 – 5 with a lunch break.

• Trang never feels like she is obligated to be there and she is not doing any work that would derive a profit for the firm. Trang finishes her 2 week internship with some good relationships and a look into the real world of commerce.

Example – illegal unpaid internship

• Phuong is in her final year of an engineering degree and is doing an unpaid summer internship at an engineering firm.

• She asked to do work for a major client of the business. The engineering firm charges the client for the work she has done on the project.

• Phuong’s manager supervises her work, but the firm does not provide her with any training or extra learning opportunities.

• Phuong’s internship should be paid, because it looks like an employment relationship. The engineering firm profits from her work, and Phuong is not getting any extra educational benefit from the placement.

Common issues international students haveSham Contracting• Frequently see situations where young people have their employment classed as an independent

contractor arrangement and are not paid minimum rates, penalty rates or superannuation.• Despite an agreement, if the facts indicate an employer/employee relationship then likely to be a

significant underpayment.

Trial shifts• The only time an unpaid trial shift is legal is when:

• It involves no more than a demonstration of your skills, relevant to filling a vacant position.• It is only for as long as needed to demonstrate those skills.• The shift is under direct supervision for the entire trial period.

• Any period beyond what is reasonably required must be paid according to the minimum wage.

Dismissals• 21 day time limit• Can be ‘unfair’ [example: no warnings, no opportunity to respond, no support person]• Can be ‘unlawful’ [example: dismissed because you complained about not getting paid right (or

other rights), discrimination, temporarily absent due to illness] → also cannot be demoted or suffer a negative consequence in your job for these reasons

International Student –Rights to work

• Condition 8105 (work rights)

8105 (1A) The holder must not engage in any work in Australia before the holder's course of study commences.

(1) Subject to subclause (2), the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder's course of study or training is in session.

(2) Subclause (1) does not apply:

(a) to work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students; and

(b) in relation to a student visa granted in relation to a masters degree by research or doctoral degree if the holder has commenced the masters degree by research or doctoral degree.

(3) In this clause:

"fortnight" means the period of 14 days commencing on a Monday.

• Department of Home Affairs takes the view that it is the visa holder’s responsibility to know, understand, and comply with their visa conditions

• Visa conditions that apply are shown on your visa grant notification letter

• While you are holding a Student visa, you are expected to comply with all conditions, such as condition 8105

• Apart from limited exceptions (i.e. those undertaking a Masters/Doctoral degree), in general students must not work for more than 40 hours in a fortnight while their course is in session

Consequences of breaching your visa

• It is never advisable to breach your visa but if you have what happens when you are investigated?

• You should receive notice of an intent to cancel your visa first, you will then have an opportunity to respond with some reasons as to why you have breached the conditions (for example underpaid and forced to work more to live, or coercion/duress)

• Response must be taken into consideration• Degree of hardship also considered and whether there

were extenuating circumstances beyond your control

• Every case is different and if you find yourself in this situation contact someone for advice.

• Even if you have breached your visa you are entitled to be paid for all hours of work at the legal minimum so don’t let this put you off getting some advice about your rights

What steps can be taken to protect yourself?

• Employers are responsible for ensuring visa holders, who are allowed to work a restricted number of hours, don’t breach this work restriction

• A person (i.e. employer) must not allow a worker (holding a visa with a work-related condition) to work, when that worker would be in breach of their work-related condition solely because of that work – this is an offence under migration law and there are penalties for the employer!

• Before you start working, provide an employer with your current visa details and relevant conditions

• A free service is available which allows visa holders and employers to check current visa details and conditions (known as a ‘VEVO’ check): https://immi.homeaffairs.gov.au/visas/already-have-a-visa/check-visa-details-and-conditions/check-conditions-online

What steps can be taken to protect yourself?

• If you are being threatened or coerced in the workplace, seek help and if possible end the employment.

• It’s advisable to keep all emails/texts from your employer or make notes of conversations (e.g. “On 17 June 2020, Sally came up to me as I was finishing my shift and told me I had to work another 5 hours this Sunday. She said she really needs extra help and I could not say no”)

• Communicate via emails or texts so there is a record in writing which shows you tried to raise any concerns/complaints

• If you are unsure about your visa conditions or have received a NOICC, it’s best to seek immigration advice

Young Workers Legal ServicePh: 8279 2233 M: 0429 663 741Email: ywls@saunions.org.au

Working Women’s Centre SAPh: 8410 6499 Toll free: 1800 652 697Email: reception@wwc.org.au