Written by Fergus Wall.
“Exploitation of young workers is still at epidemic levels in the ACT”, according to the most recent Young Workers Advice Service wage theft study.
The study found that 2 in every 5 young workers and almost half of all young hospitality workers suffer unpaid hours. The issue is a serious part of the ANUSA Legal Service’s caseload, consistently ranking 3rd or 4th since 2020.
A 2022 Parliamentary report on wage theft, titled Systematic, sustained and shameful, describes ‘‘mounting evidence that wage theft practices have become widespread in the hospitality, retail, horticulture, franchise-heavy and higher education sectors”.
“Students are a vulnerable group”
The ANUSA Legal Service’s Senior Lawyer Kathryn Lee explains that students are especially at risk. The Service’s optional demographic report asked whether students could afford legal advice, “an overwhelming number of them said no”.
According to Lee, the most common first jobs for students are in hospitality and retail. In 2020, Fair Work found “hospitality was the least compliant industry—with 61 per centof audited businesses non-compliant”. When Fair Work re-investigated 946 businesses that had previously breached employment laws, it found 57 per cent of those in hospitality remained non-compliant.
So how can I protect myself against illegal working conditions?
The first step is to know your entitlements. “Knowing what award or enterprise agreement covers you, as well as what your minimum rates of pay are, is the fundamental first step to looking out for your rights at work”, says Daniel Griffin, Senior Organiser at the Young Workers Advice Service.
Lee agrees. “Preventative measures include checking what award coverage they are under, asking for a contract up front and doing a check on the Fair Work Ombudsman pay tool”.
In the ACT, all employees are covered by a “national system” regulated by the Fair Work Act. The protections that govern your employment rights include the National Employment Standards; an Award or Registered Agreement; and, in some cases, a formal employment contract.
Between study, work and other extracurriculars, it can be challenging to find the time and information to check your pay and conditions. That’s why Observer has collated leading resources into this guide.
Set aside 5 minutes, grab a notebook and a cup of tea, and follow these quick steps! As you go, note down any questions or issues to take to the services listed at the end.
Quick Checklist:
- Get your latest payslips and timesheets.
- Check you received the Fair Work information sheets.
- Use Fair Work’s Pay And Conditions Tools to check your Award entitlements.
- Enter your shifts into the Pay Calculator to see how much you should be paid.
- Check whether you’re covered by an Enterprise Agreement using the database.
- Create a paper trail of any workplace issues.
- Reach out for free legal assistance with the ANUSA Legal Service or Legal Aid.
Step 1: Collect your information
The best place to start is your most recent payslips and timesheets.
Your employer must provide you with a payslip within 1 working day of your payday. “Students run the risk of getting underpaid when they do not have a contract or payslip” says Lee.
Your payslip must show your gross and net pay, and any withheld tax or mandatory superannuation payments. It must also include your base hourly rate and any additional pay, including casual loading, night shift rates, overtime and penalty rates.
If you haven’t received a payslip, you’re not alone: more than 1 in 3 surveyed young employees received no payslip. 26% of previously non-compliant businesses still failed to provide payslips. If you haven’t received a payslip, make a note of the hours and days you have worked.
You are entitled to ask your employer for a payslip and they are obliged to provide it to you.
Step 2: Check the National Employment Standards (NES).
The NES has minimum standards for all ACT employees, though casual employees are covered by fewer requirements. No other workplace protection – contract, Award or Registered Agreement – can provide a lower standard of employment than the NES.
What should I do?
Your employer must give you a copy of the Fair Work Information Sheet summarising the NES requirements and, if you’re a casual employee, the Casual Employment Information Statement.
If you haven’t received these, make a note. Then, use the information sheets to check if your conditions meet the NES. They provide information on the minimum wage, leave entitlements and casual conversion.
Step 3: Check your Award and your classification
Your Award is written by Fair Work and sets out minimum standards for employees in the same industry. Awards classify employees within an industry depending on your duties and qualifications and use this classification to calculate your minimum pay.
What should I do?
Use Fair Work’s Find My Award function. For the first question on Registered Agreements, select “No”, then answer the questions to find your award. Then, if you receive a payslip, look for a code starting with MA followed by 6 digits (e.g. the Nurses’ Award [MA000034]). Check that the award your employer uses to pay you matches the one you found using Find My Award.
Once you’ve opened your award, find the classification that describes the work you do in Schedule A. One common form of wage theft is to classify employees at a lower pay level than the work you in fact perform, such as not paying managerial rates to you if you supervise staff.
If you find any inconsistencies or aren’t receiving a payslip at all, note down the award and classification you believe applies to you.
Additionally, Fair Work may occasionally write an award that provides a lower standard than the NES. They review these every four years and record all inconsistencies here. Make a note of any inconsistencies.
Step 4: Check your conditions and minimum pay meet the Award
Your award sets out detailed minimum standards, the more common of which are summarised below.
Use Fair Work’s Pay And Conditions Tool (PACT) calculators to determine leave entitlements and notice period when your employment ends. They also provide a rest break search function to find your break entitlements.
Use the PACT Pay Calculator to determine your base rate based on your award and classification. You can also enter your shift times into the Shift Calculator to check how much you should be paid for those hours, including any higher rates of pay. These include:
- Overtime: hours worked over your maximum daily and weekly hours (12 and 38 hours respectively for the Hospitality Award).
- Penalty rates: hours worked during evenings, weekends and public holidays.
- Casual loading: an extra 25% of the base rate for casual employees to make up for their fewer paid leave entitlements.
If you don’t receive a timesheet, ANUSA’s Senior Lawyer recommends the following:
- Ask your employer for a timesheet: employers must keep timesheet data for 7 years.
- Use the Fair Work Record My Hours app, if you are an iPhone user: this uses geolocation data to start a timer each time you enter your workplace and end it when you leave. Fair Work can then use this data should there be an investigation.
- Use Google Maps’ location tracking data, if you’re not an iPhone user.
Step 5: Check whether you are covered by a Registered Agreement.
A Registered Agreement (RA) is a set of minimum standards that apply to employees in a specific company or companies. If you are covered by an RA, you are not covered by the industry-level Award. However, since Registered Agreements cannot provide an overall lower standard than the Award, it is good to know your Award entitlements.
The most common RA is an Enterprise Agreement (EA), created through bargaining between employees and employers and supported by an employee vote. Fair Work will only approve it if an employee is “Better Off Overall” under the EA than under their Award.
What should I do?
First, to check whether you are covered by a Registered Agreement, you can:
- Check if your employer has given you a copy of an Agreement;
- Ask your employer;
- Check the Fair Work Registered Agreement Database;
- If you work for the ACT government, consult their Enterprise Agreement database; or
- If you work for the ANU, consult the ANU Enterprise Agreement.
To search the Fair Work database, first find your employer’s Company Name. Many companies have both a legal company name (usually ending in Pty Ltd or Limited) and a business name (or names). For example, Mooseheads Pub is a business name held by a company called Caftor Pty Ltd.
- Go to the ASIC Business Name Search. Under “Search Within”, select “Business Name Index”.
- Enter the name of the business for which you work.
- Click on the entry that matches your business’ name and address.
- In the “Holder Name” category, copy the Company Name (ending in Pty Ltd).
- Go to the Fair Work Registered Agreement Search and use the Company Name to search for any approved agreements.
If you have confirmed you aren’t covered by any Registered Agreement, you remain covered by your award. If you do have a Registered Agreement, check whether it applies to your position and if so, whether your working conditions meet these requirements.
Step 6: Check if you have a formal employment contract.
An employment contract is an agreement (ongoing or fixed-term) between an individual and their employer. They cannot breach any NES or Award standards. Contracts vary considerably, so we recommend you consult the Fair Work’s contracts advice and, if needed, approach the services below.
Step 7: What should I do next?
After identifying a workplace issue, you may feel frustrated, uncertain or powerless. Lee says this is a common experience: “Students often don’t feel empowered to bring it up with the owner/supervisor if they are being underpaid due to the power imbalance”.
Create a paper trail
Lee’s “first advice would be to always document the issue. Email it to yourself. Gather evidence and payslips” and, if possible, create an Excel spreadsheet detailing your hours worked, actual pay and expected pay.
She also recommends providing as much information as possible when getting advice. “Having a paper trail is very, very helpful because it helps us contextualise the issue. If you have an idea of what your pay rate should be, it really helps focus the conversation in the legal appointment on what we can do and gives us some time to draft an email or a letter to your employer”.
Talk to your coworkers
After the Secure Jobs, Better Pay Act 2022 made pay secrecy clauses illegal, employees have the right to discuss their pay and conditions with anyone, including their coworkers.
According to Griffin, “another great step to take is to talk to your co-workers about your pay and conditions at work. Who is getting what pay? Are we all getting the same opportunity to take breaks?”. This will help contextualise any workplace issues.
Approach a (free) legal advice service
The ANUSA Legal Service is free to all ANU students and staffed by three lawyers. To book, use their online booking system. For urgent matters, they recommend sending an email at [email protected]. They will fit you in as soon as possible in a reserved emergency slot.
Lee explains the service provides both “the legal reasoning and a practical solution,” that takes into consideration circumstances such as your other job prospects and whether you want to remain in the job.
Other free services recommended by ANUSA’s Senior Lawyer include the Young Workers Advice Service (free for under 25s), JobWatch (a free employment service hotline), Legal Aid and the Women’s Legal Centre (free for people who identify as a woman, trans or non-binary).
You can also find many paid commercial legal services in Canberra specialising in employment law through the ACT Law Society’s search function.
Approach your employer to resolve the dispute
Should you decide to approach your employer, Lee recommends that you approach the conversation “in a way that isn’t adversarial” and come prepared: “I would advise students to go to the Fair Work Ombudsman pay calculator and print out what the pay period should be. That often helps because it comes from a respected source”.
After you organise an in-person meeting, take notes throughout and follow it up with an email: “An in person conversation is helpful because it gives tone of voice and body language. Always follow that in-person meeting with an email”.
She emphasises that you must not record any conversation without their consent.
Approach the Fair Work Ombudsman
“Once a student has exhausted internal mechanisms to try to resolve the dispute with their employer, they can turn to the Fair Work Ombudsman [FWO] who does investigations for free,” says Lee.
“The times that I have advised students to use the FWO have been pretty successful. The student has often received the money from underpaid wages back.”
The FWO has a phone line and online portal available to lodge an enquiry. Lee recommends the online portal as it provides a written record of the issue and can accept supporting documentation. You can also make an anonymous tipoff.
Advice for international students
Lee acknowledges that employment law issues are especially challenging for international students: “For employment law, the international community is most vulnerable to employment rights issues. This is often because people who are on visas and are working towards permanent migration to Australia often feel like they need to take jobs with fewer rights in order for them to gain points and work experience”.
She recommends international students consider reporting exploitative employers’ non-compliance even if it involves a breach of visa conditions. This is because international students are protected under the Visa Assurance Protocol. Home Affairs states that “under the Assurance Protocol, we won’t cancel your visa if you have breached your work-related visa conditions because of workplace exploitation, provided:
- you have sought advice or support from the FWO and you’re helping them with their inquiries
- there is no other reason to cancel your visa (such as national security, character, health or fraud)
- you have committed to following your visa conditions in the future.”
Consider joining your union
Unions can provide additional legal support and increased bargaining power in workplaces. Griffin explains that “joining a union is the most fundamental way you can protect your rights at work. It provides the support of not facing issues on your own and using your ability to advocate as a group rather than an individual to stand up for your rights”.
Notably, the Australian Council of Trade Unions advocated for the recent criminalisation of intentional wage underpayment, which was passed into law under part of the Closing Loopholes legislation.
Upcoming advice
Should you have any questions, the ANUSA Legal Service is planning to host an employment rights information session during the “How to Adult” program in Bush Week.
Disclaimer
The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you may have.
Graphics by Luc Mattiske.
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