Employer Didn't Pay Right Amount and No Overtime

LTheEnd on 28/04/2019 - 14:09
Last edited 28/04/2019 - 16:13

Hi guys,

So I'm helping out a guy who I found out was not getting paid the right amount by his employer after looking at his payslip for the last 15 years. He was clearly taken advantage of as he does not know the law and his English isn't great either.

Background story:
- He has worked in a small factory with only a few employees for the last 15 years.
- He was full time then made casual 12 years ago for no reason.
- He was not paid any overtime or weekend pay at all since he was made casual.
- I have contacted fairwork on his behalf and found out he was not paid the right award rate either (short a few $ per hour).
- I have managed to get all the payslips from the employer for the last 6 years however the employer claims they threw away ALL his clock in cards
- Employer claims he paid overtime by paying him more hours. For example if he worked for 40 hours he was paid for 42 hours (which sounds absolutely ridiculous to me).

I had a few questions in regards to this and would appreciate all your opinions as one of you may have had similar experiences.

Fairwork has asked me to calculate the total amount he is owed and I am having difficulty with this as I only have the total worked hours in a week and no access to the times of day or his weekend hours.

How can I calculate what he is really owed when I only have access to the hours he has worked? (only have access payslips)
I was thinking if for example he has worked 100 hours in a week, to divide that by 7 and calculate his weekend hours.
Or maybe calculate his overtime for anything after 38 hours?

Thanks all for reading this and appreciate your opinions / suggestions.

EDIT
Forgot to mention that he already has lost his job since several months. They claim they didn't fire him, just that there is no work at the moment for him (however for all other employees there is).

Education & Work

Comments

    • TheEnd on 28/04/2019 - 14:28
      -3

      Thanks for the link, however I am in Melbourne, Victoria.

      • holdenmg on 28/04/2019 - 14:29

        Sure, but they are "We offer our legal services Australia wide"

        • TheEnd on 28/04/2019 - 14:36

          Thanks, I will be contacting them.

  • o53djz7qTPY4der on 28/04/2019 - 14:50
    -4

    for the last 15 years

    and his English isn't great either

    I always wondered how these people function in everyday life. Turns out they get shafted. A pretty good motivation to learn the lingo and step out of the expat circle.

    • moo on 28/04/2019 - 15:22
      +1

      Hah thanks for diluting the use of the term ‘expat’.

  • try2bhelpful on 28/04/2019 - 15:00
    +4

    https://www.fairwork.gov.au/pay/pay-slips-and-record-keeping…

    If the employer doesn’t have all the information indicated for the last 7 years he is in trouble.

  • whooah1979 on 28/04/2019 - 15:00
    +5

    I have managed to get all the payslips from the employer for the last 6 years however the employer claims they threw away ALL his clock in cards

    https://www.business.gov.au/new-to-business-essentials/serie…

    The Fair Work Ombudsman (FWO) requires you to keep employee records for seven years.
    The Australian Taxation Office:

    Requires you to keep records for five years after the records are created. For example - a document used in the 2016 financial year must be kept until the end of the 2021 financial year.

    https://www.ato.gov.au/Business/Managing-your-small-business…

    kept for five years (although some records need to be kept longer).

    https://www.fairwork.gov.au/pay/pay-slips-and-record-keeping…

    Employers have to keep time and wages records for 7 years.

  • Meho2026 on 28/04/2019 - 15:23
    +4

    Its a legal requirement for all companies to keep financial records, including payments to employees for 7 years. Thats not just for the ATO but Workcover and Fair Work too.
    That means they are lying to you or they have broken the law, can be reported and potentially fined.

    You could tell Fair Work that the company is refusing to provide the information but it sounds like they just want a $ figure from you.
    See if this calculator helps
    https://calculate.fairwork.gov.au/FindYourAward

    It would probably be fair to estimate overtime for the entire period based on an average from the documentation you do have, same goes for the weekend rates.
    If you dont have any evidence at all then just make a diary of the work pattern over the most recent weeks eg if they have worked an average of 6 hours a week on Saturdays and 4 hours a week on Sundays in the last 2 months base your 15 year figure on those averages.

    Dont worry about the employer saying they paid the overtime as extra hours, if you are asked by Fair Work if that is true say no. It is up to the company to prove they paid overtime and they cant.

    However saying that, usually casual employees do not get paid overtime rates.
    Not sure if you are arguing they shouldve been paid as a permanent employee and are making your calculation based on that but I think thats what you should do.
    Then claim for annual leave, dont forget about public holidays and long service leave too.

    If the employer really is dishonest and dodgy the reality is your mate will probably lose his job one way or another once this is all sorted out.

    • TheEnd on 28/04/2019 - 16:19

      Thanks for the info, however I have never heard of a casual employee not getting paid overtime.

      • Quantumcat on 29/04/2019 - 07:27
        +1

        I have never heard of a casual employee getting overtime. They just work the hours they are rostered, they don't have set hours so there's no time to be over. Maybe you are thinking of part time.

  • [Deactivated] on 28/04/2019 - 16:07

    I would extrepolate based on averages to come up with a dollar amount as a starting point.

    Check up if it is even lawful to make wages claims so far back, I wouldn't be surprised to find you cant past seven years.

    Also casual employees are entitled to long service leave.

    Just tread carefully the reality is that this person could lose their job over this (even though that is illegal they are only casual and it would be naive to not consider the possibilty)

    • TheEnd on 28/04/2019 - 16:15
      -1

      Yes I can't go back more than 6 years according to fair work

  • Dobbyd on 28/04/2019 - 16:17

    Join your union and talk to your union.

    • DemocracyManifest on 29/04/2019 - 07:31

      They won't help because it's a past claim before joining unless it's beneficial for them to help, which is unlikely. Tipping off fair work and the ATO is a better idea

  • Donaldhump on 28/04/2019 - 16:21
    +2

    Why has it taken 15 years to raise the flag

    If he was paid 42 for 40 wouldn’t your mate know this

    • TheEnd on 28/04/2019 - 16:25

      He had no idea about the law. Only after I looked at his payslips did he realise that something wrong.
      And being paid 42 for 40 is some rubbish that the employer is making up.

      • Donaldhump on 28/04/2019 - 17:09
        -3

        But he had plenty of time to research the law, it’s no excuse imho.

        If I went to China and worked I’d spend my time reading the law and making sure I knew my rights, no offence people have got to do stuff themselves.

        No one knows the law when they are children, but we read up…foreign language or not, go get advice from a pro

        Good luck

        • twww on 28/04/2019 - 17:33

          Is it any wonder that FOB's get taken advantage of!

          15 yrs is a long time but you might be a tad harsh.

          Who knows how good this guy's English is or comprehension skills are etc…

          Hope the former employer gets a massive fine!

          • Donaldhump on 28/04/2019 - 18:08
            -1

            @twww: Maybe harsh, but easy enough to get help from community translators, even a lawyer

        • TheEnd on 28/04/2019 - 19:27
          +2

          Unfortunately we live in a world where not everyone is as wise as you.

      • DemocracyManifest on 29/04/2019 - 07:33

        Most people just take it on the chin and rationalise it away that's why people get away with this crap

  • Randxyz123 on 28/04/2019 - 16:22
    +1

    Good on you for trying to help your friend however he needs to see a lawyer ASAP.

    He should be able to find one that speaks his native tongue. He should look for a new job ASAP because if an employer would do this they would sure as hell find a way to make him redundant with minimal notice.

  • Hardlyworkin on 28/04/2019 - 18:44
    +1

    A few things to keep on mind;

    The 6 year limit is from the time the employee lodges a claim with the court.

    An employer has to keep records though many don't. The employer could receive a fine for this though that won't help your friend.

    You should set up an ASIC alert to receive an alert to check if the company tries to derigister (Google ASIC alert).

    It's not about what occurred, it's about whether there is evidence to prove it did. Not easy for someone who is casual.

    The rates of pay have increased over the 6 years, likely about $3 an hour less on the base rate 6 years ago.

    Your friend may be able to claim long service leave if they haven't already. Contact worksafe Vic for help with this.

    • TheEnd on 28/04/2019 - 19:24

      Yup he actually threatened to go bankrupt to not pay anything.

      • Hardlyworkin on 28/04/2019 - 19:32

        That's a pretty common threat. Do you know if it's a sole trader/partnership or a company?

        • TheEnd on 28/04/2019 - 21:34

          as far as I know it's a company

    • Sawtell on 27/05/2019 - 17:16

      The 6 year rule isnt hard and fast and can be extended where it is "…just and reasonable". See a lawyer.

      • Hardlyworkin on 27/05/2019 - 18:56

        Really? I must have been reading the wrong Act.

        • Sawtell on 27/05/2019 - 20:12

          Equitable remedies in limitations law have always been there just not as strictly defined.

  • coin saver on 28/04/2019 - 19:05
    +2

    Also check if they have been paying your mates super.

  • DemocracyManifest on 29/04/2019 - 07:36

    This wouldn't be a small coffee machine manufacturer would it?

    • TheEnd on 29/04/2019 - 18:58

      no

  • sandman87 on 30/04/2019 - 08:53
    +1

    Long shot, but is this person part of a union? If so, contact them immediately. If not, contact the union that represents their industry and ask them if he joins the union can they help him deal with this matter.

    • Vote for Pedro on 04/05/2019 - 16:30
      +1

      Joining is great, but it’s important that people join when they start work rather than when they realise they’ve been screwed over.

    • whooah1979 on 04/05/2019 - 16:34

      Join a union, pay the fee, get their help then quit the union when it's done.

      • coin saver on 04/05/2019 - 17:34
        +1

        Feral trash talk.

        • whooah1979 on 04/05/2019 - 17:37

          Are you saying that customers should keep paying for a service they use or need?

          • Vote for Pedro on 05/05/2019 - 19:51

            @whooah1979: Joining is about being in a collective to support each other. Its not about taking advantage of fellow workers who have previously contributed and continue to do so.

            It’s a fact that union workplaces earn more and receive the support that others turn to forums for.

            Think of it like roadside assistance, insurance or health cover, you can’t just join when the incident has already happened.

            Besides, this is OzBargain not OzScrewOtherPeopleForYourPersonalBenefit.

            • whooah1979 on 05/05/2019 - 20:00

              @Vote for Pedro: Union membership is like any other membership. They provide services for their members. The members may cancel when they no longer require those services.

              • Vote for Pedro on 05/05/2019 - 20:07

                @whooah1979: Yes and no.

                Yes, if you only care about your self interests short term.
                No, if you care about your fellow workers and long term improvements to working conditions overall. Sick leave, annual leave, ohs, fair pay rises, 8 hr day etc didn’t come about because people joined when they themselves had a problem and left as soon as their selfish interests were resolved. It’s about being part of a collective for the greater good.

                It’s like OzBargain. Only works if people contribute consistently. If we all sat back and only contribute when we need something, it fails, and we’re all poorer (literally) for it.

                • whooah1979 on 05/05/2019 - 20:14

                  @Vote for Pedro: The only way we may compare union membership with Ozbargain is for Scott to activate Ozbargain Premium / Plus / Ultra.

                  • Vote for Pedro on 05/05/2019 - 20:20

                    @whooah1979: I think you’re missing the point. It’s about collective support, not just getting involved (joining) when you need something and then leaving.

                    And, smartly, I think most unions these days won’t accept members that join only because they have an imminent problem that needs immediate attention. Or at the very least they charge a year or two membership fees. And that’s because some peeps do what you’re advocating - take advantage of others who have contributed to the greater good over the long term.

                    • whooah1979 on 05/05/2019 - 20:35

                      @Vote for Pedro: Charging a 1 year membership fee when signing up is reasonable and in line with other industry memberships e.g fitness, sports club, Costco, NRMA, etc. Forcing members that are leaving after one year to pay for a second year of fees would be unreasonable.

                      • Vote for Pedro on 05/05/2019 - 20:48

                        @whooah1979: Again, you’re missing the point. It’s about being part of a collective for the greater good. Ongoing support for one another.

                        If you want fee for service as and when you need it, go to a lawyer.

  • Vote for Pedro on 04/05/2019 - 16:28

    Get your friend to contact his/her union

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