Ripped off?

There are lots of different ways that a person can work. For example, you can:

1. Be employed as an employee.
2. Volunteer – usually you are not paid if you volunteer.
3. Do work experience as a student placement.
4. Run your own business by working as an independent contractor.

Volunteers usually don’t get paid for work at all. There is a clear understanding by everyone concerned – the organisation and the person doing the work – that the work is done as a gift to the organisation, usually a charity or a not-for-profit organisation. Sometimes, organisations might pay the costs of petrol or bus and train fares – but this will not turn a volunteer into an employee.

Also, work experience students, who work with an employer during their studies, are usually volunteers, and do not expect payment.

If you are an independent contractor:

• You are responsible for paying your own tax.
• You can work when you want to.
• You usually provide your own tools.
• You don’t get paid holidays or sick leave.
• You may get paid for each task you finish.
• The person who hires you usually does not take tax out of your pay and does not integrate you into their workplace or organisation (for example you don’t usually have to attend staff training or wear a uniform).

If you have an ABN and a written agreement that says you are a contractor, then you are probably a contractor, even your work situation is like you are an employee. However, even if you work for yourself as an independent contractor, the person or company you work for may still have to pay you superannuation in some cases and may still have work, health and safety responsibilities for you.

If you are not sure about whether you are an independent contractor or an employee, you should get legal advice. If you are not sure whether you should get superannuation as an independent contractor, you can contact the ATO. If you are a contractor and you are worried about work, health and safety, you can contact Safe Work NSW.

It is usually illegal to require an employee to work for free during a probation or training period. Deciding whether you are an employee,  an independent contractor, or a volunteer can be difficult. For example, some people might be given a "gratuity" (a small sum of money) for volunteering or might be described as a contractor by their employer when they are actually an employee.

If it is not clear to you whether you are an employee or not, you should get advice from a lawyer to help you – see the Getting Help Section.

You think that you are an employee. Your employer treats you as an employee, and you have tax taken out of your wage each pay. But what type of employee are you legally? This is an important question – the type of employee you are will change what you are entitled to.

Basically, you can be employed to work in 3 different ways:

If you are an employee, you have a contract – employment is a contractual relationship between you and your employer.

Yes! All workers should be paid at least $23.23 per hour, or $882.80 per week for a 38-hour week. However, junior workers (people under 20) can be paid less than this amount.

Check your Award or EA. Go to www.fairwork.gov.au to find your Award and pay-rate, or www.fwc.gov.au to find your Award or EA.

This rate is current as at July 2023. Check what rates apply at www.fairwork.gov.au. Most Awards require higher minimum rates. Pay rates for apprentices are different to junior rates of pay.

If possible, ask your employer to confirm the answers to your questions in writing, such as via email or letter.

If you need more advice, or if your employer can’t or won’t help you, then visit the Fair Work Ombudsman (FWO) website at www.fairwork.gov.au or see the Getting Help Section.

There are several tools on the FWO website that can help:

If you need help, call the FWO info line on 13 13 94 to speak to an information officer (Line operates Monday to Friday 9.00am to 6.00pm) or visit their website www.fairwork.gov.au. There is an interactive chat session that operates daily.

Also, if you need to find an EA that applies to you, you can look on the Fair Work Commission’s (FWC) website at www.fwc.gov.au (under Agreements, Find Agreement) or call the FWO and give the information officer the name and ABN of your employer and they can then find out if an EA applies to you.

There are 2 types of employment contracts:

The law creates 11 areas of minimum entitlements and conditions. These are called the National Employment Standards (NES). The NES apply to all employees no matter what the pay rate, job description, or the industry. These are the basic NES:

1. Maximum weekly hours of work:  38 hours per week, plus reasonable additional hours.
   
   
2. Requests for flexible working arrangements: this allows some parents and carers to ask for a change in working arrangements to help with their parental or carers responsibilities.
   
   
3. Offers and requests to convert from casual to permanent employment: casual employees who have worked for their employer for 12 months need to be offered the option to convert to full-time or part-time (permanent) employment by their employer. This is known as ‘casual conversion’. Certain eligibility requirements need to be met for this to occur.
   
   
4. Parental leave and related entitlements: up to 12 months unpaid for each worker parent, plus the ability to ask for an additional 12 months unpaid leave. This NES also applies in cases of adoption and same sex parenting. Some ‘long term’ casual employees are entitled to parental leave. After the period of parental leave ends the employee has the authority to return to their job.
   
   
5. Annual Leave: 4 weeks paid leave per year, plus an additional week for certain shift workers. This NES does not apply to casual employees.
   
   
6. Personal/carer’s leave and compassionate leave: 10 days paid personal/carer’s leave, two days unpaid carer’s leave as needed, and two days compassionate leave as needed. This NES does not apply to casual employees.
   
   
7. Community service leave: unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
   
   
8. Long Service Leave: For most NSW workers the Long Service Leave Act 1955 (NSW) will still apply. Some Awards and EAs also set out these entitlements.
   
   
9. Public Holidays: a paid day off on a public holiday, except where the worker is reasonably asked to work. Casuals are not entitled to be paid for public holidays unless they work on the public holiday.
   
   
10. Notice of termination and redundancy pay: up to 4 weeks’ notice of termination (5 weeks if the worker is over 45 and has at least 2 years of continuous service) and up to 16 weeks redundancy pay, both based on continuous length of service. This NES will not apply if you are a casual employee.
    
    
11. Each employee must be given a Fair Work Information Statement: employers must provide this statement to all new workers. It contains information about the NES, Awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, right of entry, transfer of business, and the roles of the FWC and FWO.

It is okay for you to be paid cash in hand – but, even if that is the way you are paid, your employer must give you a payslip.

Always get a payslip. Sometimes, employers who pay cash without giving you a pay slip are not following the law – not paying your tax to the Taxation Office and not paying your superannuation.

Also, it can be really hard to show that you are working for employers without a paper trail – so, ask your employer for a payslip!

If you can’t get a payslip, call the FWO for help. If you are worried about your employer finding out, you can ask the FWO to keep your identity a secret.

If you are not getting your correct entitlements, there are several different ways that you can go about claiming what you are entitled to:

• Make a complaint to the FWO; or
• Make a claim in a court; or
• If you are a member of a Union, you can get help from your Union.

The FWO can sometimes help resolve disputes between employers and employees about entitlements. The first step is to make a complaint in writing to the FWO using the Workplace Complaint Form – attach as many documents as you have about your pay and employment to the complaint form. The form can be found on the website at www.fairwork.gov.au. You should make the complaint in writing. Once your complaint is received by the FWO, an investigator should contact you to discuss the complaint.

During an investigation, you may be asked lots of questions and asked to hand over all of the documents you have. Your employer may also be questioned and required to provide documents to the FWO. FWO investigations can lead to many different results, including employers being issued with letters of caution, compliance notices or penalty infringement notices.

Sometimes the FWO may take legal action in the courts against an employer. The FWO does not take legal action for workers in all underpayment matters.

The FWO might also recommend that you start legal action to recover your entitlements from your employer. You might want to get your investigation report and calculations from the FWO – you can ask for a copy of these by sending a letter to the FWO.

if you are working as an employee you should be paid in full and in money for the work that you do.

It can sometimes be okay for an employer to give you board and lodging as part of your pay, as long as there is a written agreement and the board or lodging is mainly for your benefit. If you are in this situation, you are covered by residential tenancy laws as well as employment laws.

But be careful -. Working long hours for board and lodging can be exploitation.

At any time during the FWO complaints process, you can take your own legal action to recover wages or entitlements owed to you (it is important to remember that this might stop the FWO complaints process – so talk it over with the investigator before you do anything).

There is an important time limit for court claims: you only have 6 years from the date that the amount became due and payable to you to claim in a court for unpaid entitlements.

Have you been discriminated against because of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carers responsibilities, pregnancy, religion, political opinion, national extraction, or social origin?

Or have you been treated unfairly or dismissed because:

• You have asked about your workplace rights or complained to your employer;
• You took sick leave and provided a medical certificate;
• You complained about safety or made a workers’ compensation claim;
• You are involved in union activities;
• Your employer wants to make you an independent contractor.

If any of the above things has happened to you then your employer may have breached the ‘General Protections’ in the Fair Work Act. You may have a right to compensation. You should get legal advice quickly – see the Getting Help Section.

If any of the above things have happened to you, and you have been dismissed, then you only have 21 days to make a claim with the FWC. If you don’t lodge your claim within 21 days from the date of your dismissal, then you will lose your right to claim. If you can’t see a lawyer in time, then think about lodging a claim yourself. Contact the FWC to get information about how to make a claim.

If the discrimination or unfairness caused you some serious problems (other than dismissal) then you have 6 years to make a claim with the FWC or the courts - but don’t wait too long, see a lawyer quickly.

Serious problems include:

• Cutting your pay;
• Reducing your hours;
• Bullying and harassing you.

Another option is to make a discrimination complaint to the Australian Human Rights Commission (AHRC) or Anti-Discrimination NSW (ADNSW). You must complain to the AHRC within 6 months of the discrimination taking place or to the ADNSW within 12 months of the discrimination taking place.

Your employer must have a valid reason for dismissing you. If you think that your dismissal was unfair, you can lodge a claim with the FWC. If the FWC decides that your dismissal was unfair it can order your employer to reinstate you or pay you.

Again, you have only 21 days from the date of your dismissal to lodge an unfair dismissal claim with the FWC – so see a lawyer quickly or make a claim yourself with the FWC.

If you are an employee aged 18 years or over, your employer must pay superannuation (super) for you, regardless of how much you earn. It does not matter whether you work full time, part time or as a casual. Prior to 1 July 2022, your employer only had to pay you super if you earned over $450 per month (before tax).

If you are under 18 years old, you must work at least 30 hours per week to be entitled to super.

Contractors may also be entitled to super if they are paid mainly for their personal labour and skills.

Since 1 July 2022, the minimum super an employer must pay is 10.5% of each eligible worker’s ordinary time earnings’ – basically, 10.5% of the amount you earn for your ordinary hours of work. The contribution rate may continue to rise over the coming years.

Your employer must keep records that show:

• The amount of super paid for you and how it was calculated
• The date that super contributions were made to your fund
• The choice of super fund you made (if you chose a particular fund)

Your payslip must record the super amounts contributed to you.

It is a real problem if your employer is insolvent. Insolvent means that your employer cannot pay debts and may mean that your employer is placed in liquidation or becomes bankrupt. You might not be paid for long service leave or holiday pay that you have worked for. You could also lose your job.

The Fair Entitlements Guarantee (FEG) is a safety net scheme set up to pay some outstanding employee entitlements that might not be paid because of the liquidation or bankruptcy.