Know your rights: claiming wages

My 16-year-old daughter worked casually for a year at a bakery chain and found she was substantially underpaid. What can she do? What are her rights under Fair Work Act legislation?

The Fair Work Act sets out the regulations applying to employers regarding working conditions, holidays, rates of pay, penalty rates and unfair dismissal. That's the written legislation but as with all regulation it is a matter of whether it is enforced - making sure the rules are complied with by relevant parties. This is the responsibility of the Fair Work Ombudsman.

The FWO's office says employees who are underpaid or have other problems can lodge a complaint. This is done by downloading the complaint form on its website, filling it in and posting it to FWO on the address given on the website.

Your daughter should check what she should have been paid, set out what she was paid and her period of employment and send these details off to the FWO. In theory the system should work like this: if an employee feels cheated, an inspector from FWO will contact your daughter's employer, look into the claim of underpayment and read the riot act to the employer. At this point, the FWO says, the employer usually "sorts things out".

If the employer is in the wrong but fails to pay the underpaid amount and the FWO regards it as a "serious case" the employer can be prosecuted. Note "can" and not "will", or "must". The FWO office says it looks into the merits of every case and begins about 50 prosecutions a year. Enforcement of a rate of pay means taking the errant employer to court.

FWO says employers want to avoid this route because it costs them time and legal fees, so most cough up the money that was underpaid. The employer also runs the risk of incurring bad publicity, although these days there are so few court reporters the stoush is likely to go unreported. The FWO office says it can achieve voluntary compliance with wage regulations by not going to court. FWO says it receives about 26,000 complaints a year and recovers millions of dollars. Complaints can be lodged up to six years after the event.

Does it always work like this?

Sadly, no. As with other corporate and retail regulators - ASIC and the ACCC - lots of complaints should be investigated and enforced or prosecuted. Unfortunately, only a small proportion are. The reasons given are lack of resources, lack of funds, lack of will. Sometimes it is just too hard, or too political, or the errant organisation's lobbyists manage to talk the matter away.

The theory goes that underpayment of wages should be raised by the employee with the employer. But casual employees want to keep their job. It is an uneven playing field. Chances are the employee is likely to be told not to come back next day. It's usually a teen pitted against a confident and powerful employer, or their HR department. That's the reality.

An expert in this area of the law says the problem with an individual enforcing the law is that they want to work and don't want to become victimised.

He says that in order to get people at FWO off their seats to take action requires a concerted campaign, either on social media - gathering together other employees with the same employer in the same boat - or through a union. It requires publicity and public outing of the situation. A call to a consumer affairs program or a radio rant line may help ventilate the issue. The FWO, like other regulatory bodies which take enforcement action, chooses battles carefully because court actions strain resources.

A union going into bat for an employee will have more clout than an individual. Most unions now have low casual employee membership fees. They also know how to ramp up the publicity to shame an employer who has done the wrong thing. Joining a union is therefore the best protection against wage exploitation.

What happens if all else fails and I go to court?

If a casual employee does decide to take the matter to a court hearing the process will take months. Both sides pay their own costs. The employee does not need to hire a lawyer and can argue their own case, but going up against an employer with a lawyer is a hard call. It will be an even more uneven playing ground than fighting an employer in the workplace. For more, see www.fairwork.gov.au or call 13 13 94.

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