While my eldest daughter was working her way through uni she worked in a variety of cafes and restaurants. Most, of not all, underpaid her and, finally, she got sick of it and contacted the Fair Work Ombudsman. The FWO was helpful in providing information, but advised that the office had no power or legal jurisdiction to compel employers to comply - that they were strictly an advisory body.
She confronted her employer about it and was bullied and harassed. Eventually they sacked her, and gave her what she was owed on the basis that she not mention a word of it to any of the other employees.
Now, my second daughter is inexactly the same situation. Sheās required to work on Australia Day for a normal hourly rate - no penalties at all - which is, regardless, less than the award. She knows that sheāll be fired if she raises the issue.
This is an appalling situation. It seems that the FWO has been effectively de-fanged and that illegal exploitation is rife within the āhospitalityā industry.
Another rip off of employees is underpayment of superannuation - who checks their Super made it to the Super Fund? Most of us just accept that the employer is doing the right thing. As my husband was near retirement, I gave his Super a good going over to maximise his contributions and discovered that some of his employer payments were incorrect. What was on his pay slip was not what was received by the Super Fund. The Company corrected it as soon as I notified them. Shortly thereafter they were taken over by new owners - I wonder where you stand if the new owners, the previous company, or the now out-of-business company (bankrupt?) canāt or wonāt rectify the underpayments?
Fortunately I was in a good bargaining position because the company needed him. My company calculated my super on a lower amount than what I earned gross (under contract), but they paid me very well and increased my salary every year without me asking. I was very valuable to them, they knew it, and when I decided to leave they asked me to continue as casual, when I could until the project was finished. Most people are not in this position. I believe the ārip-offsā are huge and we are only seeing the tip of the iceberg.
Add to that companies structuring themselves to divest themselves of assets, then collapsing owing staff and subcontractors. Then sham contracts - workers required to provide an ABN to avoid the employer obligations and possibly paid under award rates. Unpaid Volunteer positions, another rendition of the ātrial periodā where employers take on a person for an unpaid period in return for āreferencesā, āexperienceā, or the possibility of a paid position. It seems the rip-offs are increasing for the vulnerable.
While I have many personal feelings on the treatment of hospitality workers, Iāll set that to the side as itās something best addressed by the union movement (is she a member of her union? They usually provide over the phone advice or representation at a workplace meeting).
However, I did find out something useful the other day. I found my super fund (Australian Super) has an app that will notify you when your employer has paid your super into your account. Iām planing on downloading it to see how it works but this is a great tool for hospitality workers where underpayment and non-payment of super is rife. Itās a shame that the individual has to keep an eye on it, youād hope that the employer would comply with the law and do as they are required but sadly itās not the case.
I used to work in the hospitality industry and itās so terrible, underpayment and non-payment of penalty rates seems to be the norm. I ended up going to work for a big hotel chain where they paid me fairly, with proper breaks and things like laundry allowance - it was great.
Anyway, Iād recommend seeing if her super fund has something similar so she can keep tabs on whether sheās getting correct payments.
Thanks Tilly. The problem, of course, as elder daughter found out, is that if you raise the issue, they simply fire you. Whatās needed is for the union, say, to have the right and the responsibility to demand pay records, including super, of all staff, and to do so on a random basis so that no single employee can be singled out.
Until government steps up to support all workers, not just those atop the system, second best is for everyone to monitor their super accounts. Since it is āyourā money it is like a bank and investmernt account, and everyone needs to and should learn to pay attention to it, including deposits and fees and choices of funds and options.
If super contributions are not deposited in the required time (https://www.ato.gov.au/Business/Super-for-employers/Paying-super-contributions/) all one can do beyond approaching the employer and holding oneās breath for a good outcome is to report the employer to the ATO. I believe that can be done anonymously but dodgy small employers rorting āyourā super might still figure out who dobbed them in and unfairly sack the suspect(s).
In some States and Federally the Fair Work Commission has the job of checking most pay compliance. If a person feels that their payments are not correct they should check if they are under a Federal or State Act and then make a complaint to the Commission if not under a State system. Some States do have responsibility to still check compliance after Fair Work Commission refers a complaint to them.
If they are a member of a Union they should also contact them as @TillySouth recommends. Also Unions can and do inspect workplaces but they must get a permit to do so and they can inspect the pay records if Employees permit it. See this for more info:
Sorry to hear that your two daughters are being exploited and unfairly treat by their employers. I believe it is only fair if an employee is prepared to work unsocial hours then the y should get the penalty rates. The argument that it makes the cup of coffee too expensive on public hollidays and weekends does not stand up in my opinion.
This is a way of eroding penalty rates that unions have fought for over the years, casual workers are usually on lower rates anyway, I am shure most of the hospitality patrons will be able to afford a small increase in cost to cover penalty rates spread over the yearly cost of running the establishment. Bryan
Of course I agree without reservation. But as elder daughter discovered, the FWO can only advise, and the inevitable outcome will be the sack.
Iām very proud of my daughter for sacrificing her job and exposing herself to severe bullying to stand up for the principle, but not everyone can, or is willing to, do that.
Iām sorry to say that I think such practices are becoming increasingly common, especially, but not only, in small businesses. I get the impression that exploitation is almost the norm now, rather than the exception. E.g. two out of three girls in just one family I know have been ripped off both in wages and super. With too few jobs available, and without strong unions itās very difficult to get justice, especially for young people. As several contributors have noted, any complaint generally means the worker is sacked with some trumped-up excuse. At the least, it would be very unpleasant for a complainant to continue working there.
One understands that small businesses often struggle to make a profit, especially when they are charged high rents in shopping malls and some other locations. Nevertheless, if a business cannot make an adequate profit without breaking the law and exploiting its employees, then it really isnāt a viable business.
What can be done? All workers, including overseas students and temporary visa holders, need to be informed of their rights before they even sign a job contract. Young people should be given this information in high school, where this is not already happening. Then better government monitoring is clearly required, maybe with some kind on unannounced spot checks. Fines for breaches of the law may need to be more severe. Others may have further suggestions.
My husband works in hospitality and I have over the past 10 years chased down tens of thousands of dollars in payments on his behalf. Iāve refined the approach and found the most effective is an email mentioning that " sure itās an oversight but before we contact the ATO you might want the opportunity to sort it out your selvesā ā¦ works every single time.
You can bet that if they are ripping people off with rates of pay or with super, that they are also not paying their full share of tax. Itās a magical acronym to mention in conversationā¦ ATO.
This timely news item appeared today. What is missing in the report is as or more important than what is stated. How about that no legal action in trade for an audit?
Or charges for wage theft. Theft is theft, including when employers withhold pay from workers. Iāve definitely been underpaid in the hospitality industry and I just wish Iād known I was being duped at the time.
This, in a nutshell, reflects how our government(s) seemingly thumb their noses at us. It could be the laws/solutions they enact might simply be incompetent and the chances of that are high given pollieās demonstrated allegiances and competencies, but it could also be cunningly planned. āNo powerā so you are on your own to take it to court. A āRoyal Commission into Australiaā might be justified as more and more of this is getting exposed from the banks to privatised utilities to dodgy builders to the NBN to getting the wages and super one is entitled to. Lots of lip service and pretty words, but also lots of reports like this one.
I totally disagree with the post that suggests a union should help with this. You should not have to join a union to enforce the legal minimum pay. Iād expect a union to help you achieve better than the bare minimum but the government should help enforce the legal minimum
A union is unlikely to have any additional clout than one doing it onself. Possibly the only difference would be one would need to pay for union membership which may be a payment one canāt afford.
Fair Work Australia has information on employee underpayments.
One can also lodge a complaint with the relevant State Agency responsible for employee relations or Fair Work Australia.
@phb, I presume you may not have read the article because Fair Work had no authority to make a recalcitrant company pay. It is yet another mediator not a true regulator in that situation.
āAs I didnāt think I had heard correctly, I reiterated that the Ombudsman couldnāt do anything because it was an agreement not an award and the Commission could do nothing because they had no power to enforce agreements that employers had entered into with them.
āHis reply was, āYesā. When I asked what I should do next he said, āTake it up with Parliamentā.ā
That could be the case, and as I posted many months ago my partner was in the union but when she needed help they essentially wished her well; she left membership shortly thereafter.
But summarily dismissing unions is not a good look either because of what they accomplished over the previous century on behalf of workers. I could not imagine private enterprise or capitalism leading the transition to a ā40 hour work weekā and so on.
