*The contents in this blog relates to legislation in South Australia.

All workers in Australia have a fundamental right to be paid for the work that they perform.

This right is derived from many sources including the International Covenant on Economic, Social and Cultural Rights, the Fair Work Act 2009 (Cth), and a variety of modern Awards and Enterprise Agreements.

The International Covenant of Economic, Social and Cultural Rights relevantly states at Article 7 that, among other things:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

  • Remuneration which provides all workers, as a minimum, with:
    • Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
    • A decent living for themselves and their families in accordance with the provisions of the present Covenant;

The Fair Work Act 2009 (Cth) includes a statement of National Employment Standards.  The first paragraph of this text states:

This Part sets minimum standards that apply to the employment of employees which cannot be displaced.

Modern Awards and Enterprise Agreements are required to operate in unison with these standards.

When the actions of employers do not meet these standards, workers can access the industrial courts for a remedy.

In one recent example, a worker was underpaid over $140,000.00 over the course of his employment and the South Australian Employment Tribunal awarded compensation to them in addition to imposing personal penalties on the employer for their actions.

Komadina v Cirjak [2022] SAET 49

On 20 October 2014 Mr Komadina (the Worker) started working for a family friend, Mr Cirjak (the Employer).  Among other things, the Employer failed to tell the Worker the following:

  1. The terms of the engagement and whether the Worker was employed on a casual, part-time or full-time basis;
  2. The job that the Worker would perform and the classification of this work;
  3. The likely number of hours that the Worker would work each week;
  4. The details of the relevant Award that covered the employment.

The failure of the Employer to provide this information meant that the Worker worked for a period of 5 years without ever being paid correctly or knowing that anything was awry.

Deputy President Lieschke of the South Australian Employment Tribunal considered this and commented at para 35 of his decision that:

The respondent’s failure to provide the required information about the nature of his employment, the identity of the employing entity, his classification or the terms and rates of pay, was central to the subsequent exploitation of the applicant. As a young inexperienced worker, who was not a union member, the applicant did not have access to this key defensive information. Instead, he had to trust his employer would comply with the law. This trust was then repeatedly exploited over five years.

In November 2018 the Worker discussed the matter with the Employer.  It was acknowledged that the Worker had not been being paid correctly and the Employer agreed to pay to him the amount of $10,000.00 for back pay and travel payments due to him.  This amount was paid to the Worker.

In an incredible twist, the Employer then continued to underpay the Worker despite having been alerted to their earlier issue.  The Worker’s “unlawful hourly rate of pay did not change, he was still not being paid any allowances or overtime, and unknown to him at the time, superannuation contributions based on the unlawful paid rate were not being made in full”.

By the time the matter was heard by the South Australian Employment Tribunal the total amount owing to the Worker was over $140,000.00.

The South Australian Employment Tribunal concluded that

“The respondent’s explanation for the contraventions is entirely lacking. The respondent was aware into 2018 of underpayments and yet did not rectify the ongoing underpayments. At least from then on, the contraventions were deliberate exploitation.”

The Worker was awarded $146,000.00 in compensation for the loss he had suffered as a result of the Employer’s conduct.

The Employer was ordered to pay a further amount of $33,050.00 in penalties, personally, for their breaches of the Award that covered the Worker’s employment.

How to prevent this happening to you

I encourage all workers to ask for as much information as possible when starting employment.  For a start, I would ask at least the following:

  1. When will I start?
  2. How many hours will I be expected to work each week?
  3. Will I be paid per hour, per day, per week, or per year?
  4. Does and Award or Enterprise Agreement apply? If yes, can you send me a copy?
  5. Can you forward me a copy of my contract please?

If the answer to any of those questions is “no”, “I don’t know”, “don’t worry about it”, “mates rates”, or anything else vague or ambiguous, you can contact the Fair Work Ombudsman for advice.

If after starting employment you are concerned that you are not being paid correctly, turn to Turner Freeman for advice.  Please contact our team today on 13 43 63.