Underpayment of wages: Could it happen to me?
We fork out money just about every where: When we’re buying a dress or a killer set of heels, when we’re grocery shopping, when we’re at the hairdresser or dentist. Sometimes, more money seems to flow out of our bank accounts than the amount that we’re paid from month to month.
However much we spend, most of us need to have access to every cent that we earn, whether it is to pay our debts or to tuck some away for a rainy day. So if we’re hanging on to every cent, underpayment of wages can hit really hard.
What is underpayment of wages?
Underpayment of wages occurs when an employee isn’t paid enough, or at all, for the work that they have done.
A person claiming underpayment must be an employee and it doesn’t matter whether they are full-time, part-time or casual status, so long as they are employed.
An employee’s pay rates and conditions are set out in their industrial award, contract of employment or workplace agreement. As a minimum, they must be paid in accordance with these conditions.
Underpayment can occur in many ways including:
:: Not being properly paid for performing work duties.
:: Not being paid overtime.
:: Not being paid allowances for certain things, for example travel and uniforms.
:: Not being paid in accordance with current pay rates.
:: Performing duties above the usual pay grade.
Is there a difference between the way men and women are paid?
In Australia, there tends to be a gender pay gap. On average, Australian women earn 17 per cent less than men.
Some reasons for this include:
:: Work in female-dominated industries tends to attract lower wages than work in male-dominated industries.
:: Lack of part-time or flexible senior roles that allow women to accommodate their caring responsibilities.
:: Women taking time out from work to care for children.
:: Direct and indirect discrimination.
But this doesn’t always mean that a woman has a legal action for underpayment of wages. If a woman is being paid properly according to her contract, industrial award or workplace agreement, there is no underpayment of wages.
Pay parity is a social and economic issue rather than an underpayment issue.
However, a woman may make a complaint of gender discrimination if she is paid less than a man for performing the same duties.
Over and above the call of duty
There are some basic rights that every employee should understand. For example, a worker is not required to perform duties that are above their pay grade. However, most employees would happily perform some occasional extra duties to support their team, help out their employer or to demonstrate their commitment to their work.
The problem arises when employees are regularly asked to perform duties above their pay grade. This can be seen as a way for the employer to get the work done and to save money at the same time. This isn’t fair and it’s against the law. If this is happening to you, you don’t need to put up with it. Getting legal advice can help you work out how to deal with the situation.
What can I do if I’m being underpaid?
If you believe you’re being underpaid, you should gather all your documents that support your claim. For example:
:: Travel logbooks
:: Tax returns
:: Receipts for items purchased that require reimbursement
:: Contract of employment or workplace agreement.
Work out what you have been paid and what you believe you should have been paid.
If you feel comfortable, approach your employer about it. Remember, it may have been an innocent mistake that can easily be fixed by back-paying the outstanding amount and ensuring that future payments are correctly calculated.
If you’re not comfortable approaching your employer, you may wish to seek legal advice. A lawyer can help you work out what you are owed, whether your duties are appropriate for your pay grade, and give you some options about how to recover the money.
It is possible to launch legal action for an underpayment of wages claim. If the case can’t be settled, it is listed for trial. At trial, the tribunal will hear the evidence and decide whether any money is owing to you and if so, how much.
Bullying and harassment
It is unfortunate, but sometimes a person who complains about underpayment can be subjected to workplace bullying or harassment. It can take many forms, for example verbal abuse, isolation, changed duties or relocation.
If you believe you are being bullied or harassed because of an underpayment issue, you should write down as many incidents as possible (including time, date, place, the names of any witnesses and what was said or done) and get legal advice as soon as possible.
You can make a complaint about the conduct to the Equal Opportunity Commission or the Human Rights Commission. A lawyer can help you with this and can also assist if you decide to try and resolve the issue directly with your employer.
In some rare cases, making a complaint about underpayment of wages and/or bullying and harassment can lead to either resignation or dismissal. The laws are very particular about what is legal and illegal in these circumstances and if it happens to you, even if you resigned from your job, you should get legal advice straight away.
Underpayment of wages is an area of law that is never easy to navigate. Finding out that you have ben underpaid can cause a lot of stress if you are unsure how to deal with it and are trying to resolve the issue without conflict.
That’s where a lawyer can really help. An experienced employment lawyer can calculate the sum to which you think you are entitled, check how the employment instrument applies and assist you to a resolution. It’s a great way to ensure that you are spending as little time as possible on your legal claim.
This article provides general information only. For advice specific to your needs, you should consult a lawyer.