In simple terms, wage theft occurs when an employer does not pay an employee or group of employees their correct wage and or entitlements.

Wage theft has recently become the focus of media attention with several high profile court cases making headlines in print media and on television news.

It is also currently generating headlines because the government of the day is attempting to create legislation that will assist, in part, to address this issue by allowing unions to access company payroll information through new industrial relation laws.

We await to see the outcome of that.

In the interim, what does wage theft currently look like for employees in the education sector?

Whilst many will automatically think in terms of underpaying an employee because of an incorrect salary calculation you should be mindful it can take other forms such as:

• failing to pay superannuation
• not paying entitlements such as personal leave, annual leave or annual leave loading
• failing to pay for breaks
• failing to pay overtime (particularly when it is known staff are working through meal breaks or starting early/finishing late to complete assigned tasks and ‘normalising’ this behaviour)
• withholding of wages without permission of the employee
• deliberate employee misclassification (that is, being under classified)
• not paying appropriately for higher duties
• failing to pay for ‘on call’ or ‘recall’ periods
• failure to pay allowances
• avoiding redundancy pay
• ‘milking’ employees, particularly graduates and those on fixed term contracts, through ‘voluntary work’

The most significant mistake IEU members can make regarding underpayment of wages is presuming the employer IS doing ‘the right thing’. Often, members’ trust in their employer is based on the fact that they work in a religious faith-based school and believe such behaviour simply would not or could not occur.

Recovery of underpayment of wages is limited by a 6 year statute of limitations

It is also not widely understood by employees that corrective action (recovering your underpaid wages) is covered by a statute of limitations. Underpayment claims can only be sought for the 6 years immediately prior to the date the claim is lodged.

Hence, any underpayment that has occurred prior to this period is generally not recoverable.

Members should be aware that employers are acutely aware of this fact and in the IEU’s experience, they will not demonstrate any sense of ethical or moral obligation to repay anything more than what is legally required.

The IEU has dealt with cases in which an employee or group of employees underpayment of wages and or entitlements has occurred for more than a decade because the ‘mistake’ is made very early in the employee’s career. As a consequence, the effect is compounded by time and the employee’s loss incurred may be significant.

How can you be sure your wages are not being underpaid?

The most effective solution is to be a member of the IEU and always contact the IEU should you have the slightest doubt about what you are receiving in salary or entitlements — whether or not it is correct. It is a simple as a phone call or email.

In the next edition of Class Action I will present some actual member case studies of wage theft.

Frank Bernardi
Industrial Officer