Welcome to 2022 (which we hope will not be 2020 too)! Underpayment or non payment of wages and entitlements continue to be a significant issue for many employees. The reality is that the authorities do not have the resources to pursue underpaid entitlement claims to court on behalf of most employees. And not everyone has a union to help them. So it will be up to most employees to take their own legal action to recover unpaid wages. Most claims will be commenced in the Federal Circuit Court (usually using the under $20,000 minor claims procedure) or in a variety of state based courts/tribunals.
Most wage claims relate to correct industrial award classifications, overtime and penalty payments, allowances and unpaid leave or termination/redundancy pay. Court forms are becoming easier to complete but employees will at some point have to set out how they have calculated their claim in all but the clearest cases. This will be useful at mediation and it will also pay dividends at any hearing. It is important to remember that a court/tribunal is an umpire, not an investigator and it is up to you to prove your claim to a satisfactory level. For significant claims, it may be of assistance to engage an expert to prepare calculation documents. If doing it yourself, a summary document should set out your calculations in writing in a way that is easily understandable. Supporting documents (such as payslips and timesheets) should be indexed and contained in a folder which is readily accessible. It is also a good idea to print out the applicable award/enterprise agreement or the relevant provisions at the least. The summary document should ideally contain:
• The names of the employee and employer, dates of employment, nature of employment (full time, part time or casual) and job title.
• The name of the modern industrial award or enterprise agreement, if any, which applies to the employment.
• The appropriate job classification and wage rate payable under the modern industrial award (bearing in mind award rates are updated each year, usually from 1 July so this might change from year to year) or enterprise agreement.
• Details of award/enterprise agreement overtime/penalty rate/allowance requirements. The Fair Work Ombudsman’s Pay and Conditions Tool can help with this – www.calculate.fairwork.gov.au. Fair pay guides setting out pay details for each award classification can also be accessed here.
• A table with columns for each day and/or week that there is an alleged underpayment, the hours worked on that day/week, the hourly rate which was paid and the rate that should have been paid under the award/enterprise agreement and the applicable allowance. Starting and finishing times will also be important for overtime/penalty rate claims. Sub totals for weeks and years may be necessary. The Fair Work Ombudsman’s Small Claims Guide gives an example.
• If the claim is for leave, then a calculation should be set out of the full number of days/weeks entitlement to leave, the amount of leave taken and when, the amount of leave paid for and the amount said to be owing;
• If the claim is for termination notice pay or redundancy pay, then the number of weeks pay claimed and the basis of the entitlement (enterprise agreement, National Employment Standard or contract) should be identified.
• Particular care needs to be taken in identifying the entitlement source and calculation of unpaid commission claims.
• Where an over award or pure contractual claim is made (eg reimbursement of relocation expenses or bonuses) then the contract provision should be identified.
These are of course general comments only. Please contact us if you would like any further information or help.