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Employment Problems

Spot the Signs

Is this happening to you?

Then it's time to get employment law advice

"I am paid less than $20.33 an hour" (as at July 2021)

The national minimum wage is $20.33 per hour. All workers should be paid at least this amount, unless they are a 'junior' (usually 20 years of age or less). Most minimum rates in Awards* are higher than the minimum wage. If an ordinary worker is receiving less than $20.33 per hour then they are almost certainly being underpaid.

"I am paid 'cash in hand' and don't get a payslip"It is legal for a worker to be paid cash in hand - but all workers must be given a payslip. If a worker receives cash without a payslip there is a real risk that the employer is not following the law - for example the employer may not be sending the worker's tax to the Tax Office or contributing superannuation for the worker.

"I am working for a trial period with no pay"All workers are entitled to be paid for their work, even when on probation or being trained. Many workers who are new to Australia are mistaken about this because of bad labour practices in other countries. Many workers who are new to Australia are exploited this way. The employer can establish a probationary period but the worker must still be paid. Volunteers and work experience students do not expect payment - but these volunteer arrangements are well recognised, for example charity workers and organised student placements.

"My boss tells me I am casual but I work the same hours each week"Working regular hours each week is not usually casual employment. Many employers mislead workers about casual employment to avoid paying annual leave, sick leave and other benefits. This is a real problem in the workforce - millions of workers are denied access to their full entitlements in this way. Where there is expectation of work each week with similar hours the worker is usually permanent full time or permanent part time. This means that they must be given paid holidays and paid sick leave.

"I am a permanent worker, but when I work on weekends I am not paid extra"Many Awards provide for a greater hourly rate of pay on weekends and public holidays (this is not always the case for shift workers and casuals). When a worker is required to work for the 'weekly rate' on weekends it is possible that the worker is being underpaid.

"I don't get superannuation"Workers who earn $450 or more per month (before tax) are entitled to superannuation, provided they are 18 or over. If they are under 18 and working more than 30 hours per week they are also entitled to super. This includes contractors who mainly provide their intellectual or physical labour. The employer must contribute an additional 9.50% of wages to a superannuation fund. Also, overseas students and workers on any other type of visa are entitled to superannuation.

"I work long hours without any breaks"Awards require that workers be given breaks. It is a breach of various laws for an employer not to provide breaks. It can also be a serious occupational health and safety offence.

"I am given board and lodging for the work I do"It is legal to provide board and lodging as part of a worker's pay. However, where many hours of work are undertaken each week the worker should receive proper payment in money. Working long hours for only accommodation is often exploitation. Workers who have been homeless or are at risk of homelessness sometimes find themselves in this situation.

"I have been dismissed and it's unfair"Not all dismissals are unfair - but usually an employer must have a valid reason to terminate a worker's employment. If a worker believes their dismissal was unfair they should get legal advice urgently. A worker has only 21 days from dismissal to commence proceedings for unfair dismissal in the Fair Work Commission (the Federal industrial tribunal).
For more information go to www.fwc.gov.au.

"I have been dismissed because I made a complaint to my boss"The Fair Work Act protects workers who 'stand up' for their rights or complain about their employment. A worker dismissed for asking about their workplace rights or making a complaint can apply to the Fair Work Commission and the Courts for compensation and other legal outcomes. It is important to get advice in these circumstances. There is a time limit of 21 days from dismissal to commence these types of legal proceedings. There can be complex legal issues so it is important that the claim is correctly made to the Fair Work Commission.
For more information go to www.fwc.gov.au

All of our civil lawyers at Legal Aid NSW can give employment law advice or refer clients to the right place for help. An appointment can be made for advice at any civil law office of Legal Aid NSW.

To find a Legal Aid NSW office call LawAccess NSW on 1300 888 529.

Visit the Legal Aid NSW employment law services website.

* The minimum wage is updated each year from July.

*Awards are made by the Fair Work Commission and set out minimum pay and conditions. The Fair Work Ombudsman (FWO) can give information about Awards, rates of pay, overtime, breaks and other entitlements. Phone 131 394 or go to www.fairwork.gov.au

This information is intended as a general guide to the law. It should not be relied on as legal advice and it is recommended that you talk to a lawyer about your particular situation.

At the time of updating, the information shown is correct but may be subject to change.

If you need more help, contact LawAccess NSW on 1300 888 529.

A print copy of this brochure may be ordered online.

Last updated July 2021