MMS Briefs: Help! My boss hasn't been paying me
What are your options if you haven’t been paid on time, haven’t received your payslip or haven’t been paid at all?
What and when is my boss supposed to pay me?
As an employee, you have a legal entitlement to be paid a wage for work you perform, and your employer must also make minimum superannuation contributions on your behalf.
The amount that you should be paid for work will be set out in your employment contract or the relevant Award or Enterprise Agreement. If you don’t have a contract, Award or Enterprise Agreement, you must be paid at least the national minimum wage which is set by the Fair Work Commission. Here is a link to the Fair Work minimum wage website: https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/minimum-wages
Employees may also be entitled to personal leave (sick leave/carer’s leave), annual leave and other entitlements. This will depend on the type of employment such as casual, permanent or fixed term. Entitlements are also covered in your employment contract, National Award or Enterprise Agreement. If there is no contract, Award or Enterprise Agreement, the minimum National Employment Standards apply. Here’s a link to the National Employment Standards: https://www.fairwork.gov.au/employee-entitlements/national-employment-standards
Employers are obliged to pay their workers in a timely manner and to provide them with a record of their pay (payslip). If they don’t they can be hit with hefty fines from the Fair Work Ombudsman.
The frequency of payment of your wage is set out in your employment contract, or the relevant Award or Enterprise Agreement. If there is no contract, Award or Enterprise Agreement, the Fair Work Act provides that employers must pay their employees at least monthly and must issue employees with a pay slip within one working day of payment of wages.
The amount of superannuation your employer is required to contribute on your behalf is set by the Australian Taxation Office and is currently 9.5%. However, if you earn less than $450 gross in a calendar month, your employer is not required to make any superannuation contribution on your behalf.
What can I do if I haven’t been paid correctly?
There are a number actions you can take if you believe you haven’t been paid correctly. In the first instance you should approach your employer and discuss the issue, as they have obligations under the Fair Work Act in relation to paying you. If you don’t get a satisfactory result you can lodge a complaint with the Fair Work Ombudsman. Going to the FWO does not require the assistance of a lawyer. Here’s a link to the FWO website: https://www.fairwork.gov.au/how-we-will-help
The FWO will assist you to resolve the matter with your employer, but if that still doesn’t result in you being paid correctly, the FWO may then take legal action against your employer and has the power to impose fines. The FWO may also suggest that you take legal action against your employer to recover your lost wages.
If you decide to take legal action against your employe
r, you should obtain legal advice.
Kate Simpson is our resident employment law solicitor at MMS. Kate is able to advise you concerning unpaid wages or entitlements and can assist you with any other employment law matter. Contact Kate by emailing email@example.com, or by phoning our office of 6772 4899.