As an employee you have certain rights under the law; you should be paid correctly, receive the correct entitlements from your employer and be treated fairly in the workplace. Unfortunately, some employees can be "ripped off" by their employers. Some employees may not realise that they are receiving the incorrect pay or not receiving the benefit of all their entitlements.
This guide is about what it means to be an employee, how to check what type of employee you are, what your minimum entitlements are, and how to check if your superannuation is being paid correctly. Most importantly, this guide will tell you where to get help if you feel you have been wronged by your employer.
If you feel like you are not being paid the correct amount, not receiving all of your entitlements or you are unsure about your rights at work, then this guide is for you.
If you are, this guide might not be for you. NSW State Government employees and employees of Local Councils is NSW are not covered by the Federal system, which is what this guide gives information about.
There are lots of different ways that a person can work. For example, you can:
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:
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.
Noah had been looking for work for a while. He found an ad in his local paper – a company was looking for a receptionist. He went or an interview and was asked to start soon after. He was given a job description and asked to fill in forms for tax and also given an induction. Noah was told by the boss that because he was young and this was his first job that he would need to do a job trial.
During the job trial, he was expected to turn up for work, and do the job, but was not going to be paid, because it was "volunteer work". Because he was a "nice guy" his boss told him that he would give him $100.00 a week to cover his petrol.
Noah worked for 3 months and then was told that he was not going to be employed because he "did not fit in". Noah was really upset! He has really worked hard, and everyone seemed happy with his work. He saw a lawyer who contacted the employer and pointed out that Noah was entitled to be paid wages for his work.
The company had back-paid Noah for all the work he had done. He was not a volunteer at all but instead had an employment relationship with the company.
Chloe is a cleaner. She applied for a new job because it was closer to home. The new boss told Chloe she’d have to get an ABN before he could take her on. Chloe got an ABN and signed a contract. The contract said she was contractor. The work was the same as her other cleaning jobs, but Chloe has to submit invoices to the boss to get paid.
Chloe gets paid about the same money as her previous jobs, but she doesn’t get any sick days or holiday pay.
Chloe sees a lawyer about her situation. The lawyer told her that if the new contract says she is an independent contractor, then that is probably what she is.
The lawyer also told her that the company might still have to pay her superannuation even though she may not be an employee and that she could make a complaint to the ATO.
Chloe got another job the next week as a permanent employee with another cleaning company with holiday pay, sick pay and carers leave. Chloe made a complaint to the ATO about her superannuation and the company ended up paying her superannuation on all the money that she earned.
If you’re not sure if you’re a contractor or employee, get some advice. If you are an employee and the boss asked you to become an independent contractor, get some advice. If you are an independent contractor and you think you’re getting paid less than the Award, get advice.
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:
An employee who works full time is usually contracted to work about 38 hours a week. Full-time employees may also receive:
Part time employees usually work less than 38 hours a week. The work hours of a part-time employee are usually regular, with little change from week to week. Also, there is an expectation that the employment relationship with the employer will continue. Part time workers may also receive:
Casual workers are hired to work irregularly. That means that there is no expectation, certainty or guarantee of ongoing work, fixed shifts or hours. Casual employees are hired only from the start of their workday or shift, to the end of their workday or shift. Casual employees don’t get:
Because of this, casual employees may be entitled to a casual loading of 25% more pay than part time or full-time employees.
Casual workers do get long service leave if they have been employed in the same job for a long period of time.
Olivia worked for a fast-food restaurant. She knew when she was working by ringing up every Sunday to find out when she was rostered to work.
Some weeks she worked lots of hours; but other weeks, she worked little to no hours at all. There were no set days that she worked every week.
She was paid at a higher rate an hour then her co-workers who worked part time or full time (25% an hour more) – but she did not get paid holidays or sick leave like they did.
Olivia’s work was truly casual.
Ella worked at a restaurant. She worked the same hours every week. It was a small workplace, with only 2 other employees. She had been working there for 2 years. There had never been any change in the days that Ella worked or the times that she worked. She was paid as a ‘casual’ with a loading on top of her hourly pay rate. A family emergency came up, and Ella needed to take off 2 weeks of leave.
Her boss told her that as she was a ‘casual’ she was not entitled to be paid for any leave. Ella saw a lawyer to get advice about her situation. Ella was advised that as her employment contract stated she was a casual employee, she was not entitled to any paid leave like annual leave. Ella spoke to her boss and arranged to take unpaid leave.
If you are an employee, you have a contract – employment is a contractual relationship between you and your employer.
It is important to know that an employment contract can be made:
Your terms and conditions of work may be outlined in a letter of offer. As well as your letter of offer, you may also receive a formal contract that tells you about the entitlements and terms and conditions of your employment.
Many employees don’t even get a letter of offer – there is just a conversation between the employee and their employer that leads to employment (this happens a lot when you work for a small or medium sized business).
The matters agreed to in the conversation will form part of an oral agreement or contract. For example, if you have a conversation about start and finish times then those details are part of the oral employment contract or agreement.
An Award may also apply to your employment, so not every detail about your employment terms will be mentioned in a written letter contract or a conversation.
An Award is a legal document that sets the minimum standards of employment in a particular industry. Awards usually set out the minimum pay rates, entitlements, and conditions for each industry. Awards cover most industries. Some employees who are not covered by a specific Award may be covered by the Miscellaneous Award (depending on the industry).
Some employees – such as management workers or professional workers (like lawyers and accountants) are not covered by an Award.
Some employers have approved EAs that apply to all employees of that employer. In most cases the EA will replace an Award that might have applied to workers in the employer’s business.
If your employer has an EA, it is possible that the pay and conditions are different to the Award. But this can only happen if the EA passes the "better off overall" test, which means the pay and conditions in the EA must be better off overall than in the Award you would have been covered by. Most EAs provide for higher wages with more flexible work hours as well as adjustments of penalties rates.
Sometimes the EA might not completely rewrite the Award, but will "import" parts of the Award into the EA. You need to read it carefully to work out exactly what it says. Sometimes you need to read the EA with the Award that applies to your industry to get the full picture of what the EA means.
It can be hard to work out exactly what terms and conditions apply to your employment. If you are not sure, get some help – see the Getting Help Section.
If you want clear information about your pay and conditions of work, a good place to start is to ask your employer. If you do:
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.
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:
You can use this tool to calculate some base pay rates, allowances, overtime, and penalty rates of pay. You can also calculate some pay rates for entire shifts worked over a seven-day period.
You can use this tool to search for the Award that applies to your industry and you.
You can use this tool to find a summary of pay and conditions under some relevant Awards for the following industries:
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:
That finishes on a specified date or after the completion of a fixed period. For example, a traineeship or special project.
Which continues until you give notice that you want to finish your employment, or until your employer gives notice to terminate your employment. Your letter of offer or confirmation of employment letter may also set out how your employment can end. Also, Awards and EAs set out how your employment can end.
Jack went to work at a club as a barman. When he was offered the job, he was given a short letter from the Club confirming:
After working for nearly 5 years, the Club started to talk about needing to make people redundant. Jack was not sure what that meant for him. Also, he could not find the Award mentioned in his letter of employment at all! The letter that he received from the Club was really short and did not cover this issue.
Jack rang the FWO. The FWO was able to:
In the end, the redundancy did not happen. But Jack now knew what Award applied to him, and what his termination and redundancy entitlements were.
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:
Sarah’s little girl Esther was 18 months old when Sarah went to work for a company. Everything was going really well with her work schedule – Sarah’s mum and dad were able to look after Esther when she went to work. Sarah usually worked from 12.00pm to 4.00pm Monday to Friday.
Sara’s parents moved away when Sarah’s dad started another job. Sarah had tried to find childcare for Esther but was only able to get Esther into childcare in the mornings from 9.00am to 1.00pm.
Because her employer agreed, Sarah was able to negotiate a change of start and finish time to fit in with Esther’s childcare times. The negotiations took place because of the NES about flexible work arrangements.
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.
James and Samuel had been on the adoption waiting list for their baby for a few years. They found out only a short time before they were going to be parents that their baby was available to adopt.
After talking about it, they decided that James would take 12 months off work to look after their baby.
James spoke to his employer – who was not sure if parental leave was available in "cases like theirs".
James and Samuel spoke to the FWO – James was entitled to take 12 months leave under the NES. James is now enjoying his time looking after baby Will.
If you are not getting your correct entitlements, there are several different ways that you can go about claiming what you are entitled to:
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.
If you live and work in NSW, it is possible to make a claim for unpaid entitlements in 5 different courts:
If your claim is up to $20,000.00, then you can claim in either the CIM, Local Court or in the FCFCOA under the ‘small claims’ procedures in those courts. These procedures are less forma
As each court is different, you should get legal advice before making a claim in the Courts.
Ethan had been working in Aged Care for 10 years. 8 years ago, he started doing a different job (with more responsibility) and working on weekends and public holidays. His employer did not increase his pay rate even though what he was doing required a higher rate of pay under the Award. Also, the employer did not pay weekend rates he was entitled to under his Award.
Because of the time limit, Ethan was only able to claim the difference between what he had been paid and what he should have been paid for the last 6 years, not the last 8 years. He lost out on being able to claim several thousand dollars because he has not taken legal action in time.
If you are going to make a complaint to the FWO or make a Court claim, you will need as many of the following documents as you can find:
You should also download the FWO's phone application 'Record My Hours'. With this app you can record the time you spend at your workplace. GPS technology tracks when you arrive at work and when you leave. The app is a great way to protect yourself from wage underpayment and can help with a complaint.
If you are no longer working for your employer (and you have them) you will also need:
This is often called a letter of demand. It will help you work out your claim and notify your employer of the amount you say you are owed. If you don’t get a response or payment, then get some legal advice. You could also complain to the FWO or start action in a court.
Some employers may try to get you to sign a letter or a document to resolve the dispute – don’t sign anything until you have it checked by a lawyer. You might be bargaining away more than you think. If you are thinking of signing this type of document, get some help – see the getting help section.
Isabella had been working for Big Company Pty Ltd for 6 months. She was told by her friend Joe, who was working at another company doing the same job as Isabella, that he was being paid $2.00 more an hour than what she was.
Confused she rang FWO. The FWO confirmed that the Award rate for Isabella’s job was $2.00 per hour higher than she was being paid. Isabella brought this to her employer’s attention with the letter of demand set out on the next page.
Her employer, after checking their records and talking with the FWO, paid the net amount underpaid to Isabella. Her employer also sent the tax payable to the ATO and paid the extra superannuation to her nominated Super Fund.
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:
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:
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:
Your payslip must record the super amounts contributed to you.
If you are worried that your employer is not paying your super, or is not paying as much super as you are entitled to, then you can take the following steps
Contact your employer and ask:
Check your most recent member statement from your super fund. This statement shows how much super your employer has contributed to your fund in the last financial year. You can also contact your super fund for more up-to-date information. You can usually log on to your super fund website to get an up-to-date statement of your super.
If you still believe that your employer is not paying enough super, or any super, or is not paying your super into your chosen fund, lodge an enquiry with the Australian Taxation Office (ATO) about unpaid super by:
At any time during the ATO complaints process, you can take your own legal action to recover unpaid super owed to you (this might stop the ATO complaints process, so talk it over with the ATO before you do anything).
Liam has been employed as an apprentice butcher in a small business. He thought everything was fine, and then he got his end of year statement from his superannuation fund.
He spoke to his boss, who wouldn’t answer his questions.
Liam rang the ATO hotline for help. The ATO told him that he was entitled to be paid superannuation, and that there should have been $3150.00 in contributions to Liam’s super fund during the financial year.
The ATO took steps to ensure that Liam’s superannuation was paid. This involved the ATO contacting Liam’s employer.
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.
To get assistance from FEG, you must be employed by an employer who has entered into liquidation or bankruptcy.
You are not usually eligible for FEG assistance if you are an ‘excluded employee’ (including company directors and their relatives), contractor, subcontractor, or owed money by the employer for any reason other than for eligible worker entitlements. Temporary residents (other than special category visa holders of Australia) are not entitled to FEG.
FEG can help with:
In calculating all entitlements under FEG, a maximum rate wage is used. If you earn more than this rate, then FEG assistance will be calculated as if you earned only the maximum wage. The maximum wage is indexed every financial year. As at 1 July 2022 the maximum wage is $2,585 per week.
FEG won’t pay superannuation. But if there are sufficient assets to pay employees, then the Liquidator or Trustee in Bankruptcy must pay your superannuation.
If you need help recovering entitlements under the FEG scheme, contact the FEG Hotline on 1300 135 040 or go to the website on https://www.employment.gov.au/fair-entitlements-guarantee-feg
Mia had been working for Little Company Pty Ltd for 4 years. Suddenly, everything changed at work, and the company was placed in the hands of a liquidator. The liquidator had a meeting with Mia and explained that the company’s financial position was very bad, and that there was no money to pay Mia for her owed wages or to pay her annual leave. In fact, the company’s business was going to close down.
Mia contacted the FEG. They were able to contact the liquidator, and once they had confirmed the financial position of the company, were able to help Mia by paying her unpaid wages, unpaid annual leave, pay in lieu of notice, and redundancy pay.
Updated 5 July 2023
|Fair Work Ombudsman||The Fair Work Ombudsman Info Line can give information about employee entitlements and other work matters||Phone: 13 13 94|
|Fair Work Commission||The Fair Work Commission (FWC) is the national workplace relations tribunal. The FWC can conciliate and determine some workplace disputes – such as unfair dismissal matters.||Phone: 02 8374 6666|
|Workers Unions||If you are a member of a union, your union can assist and advise you. For more information visit Unions Australia or Unions NSW.||Website: www.australianunions.org.au|
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