VIC Can my employer decide to keep a deposit from my pay undiscussed?

[deepgan]

Hi
I was working as a cleaning contractor in Abn for a company. No contracts have been made, nth signed. Something emergency regarding family health came up and I had to take an emergency leave for around 8-10 days. They were supposed to pay my share of money 2 weeks ago, but in the name of being busy and unclear track of records of the works I have done for them, they were delaying the payment . Around 4000$ is what I need to get from them and now when I ask them for the money I should get, they came up saying because of you taking sudden off, company had to face some loss and had to put time to sort things out which raised the cost even more. And rather than cutting the loss from my pay of share, they said they will put 1500$ as a security deposit and pay that back to me when I leave the company with 3 weeks notice. Such a thing was never discussed in ever before and just because they own me now, they are saying such. So what should I do??

 

[Rod]

As an employer - no they can't withhold wages.

I am unclear though whether your relationship is employer/employee or business/contractor.

If a business/contractor relationship they likely have no basis for withholding payment for work done. There is not enough information to know if they are entitled to claim damages because you could not fulfil contracts.

 

[deepgan]

The relation is as a business and contractor . It’s a 50-50 % share and the amount they are trying to hold is of my 50% share

 

[Rod]

It seems unlikely they are legally entitled to do what they have done but not enough information to be certain.

 

[deepgan]

The situation is
I’ve been working as a cleaning contractor for them. They provide us work every single day, we work on the places they have provided and the money earned is shared 50-50. What happened was, before 10 days, my partner’s health deteriorated and I had to take a sudden leave from then. Yesterday, I then reached out and told them about the situation of now and then I will be joining pretty soon. As the money of my share ( the money that I have already earned as my 50% share before I took the leave) was to be provided to me 2-3 weeks back, I asked them yesterday that I’m in need of it , and that is when they said me taking such a sudden leave brought stress to them and caused loss to them. And this is what exactly they said in text as in the picture I have attached with this post .
“ I haven't looked at the accounting since I was super busy.

How much money do you need?

We have had a major loss over last 10 days, so rather than deducting that from your payment, we will keep $1500 as a deposit payable when you leave with 3 week's notice”

 

[Rod]

Your reply is:

"No, I do not accept that arrangement, pay me what is owed before Christmas."

 

[Tim W]

It seems unlikely they are legally entitled to do what they have done but not enough information to be certain.

Whereas my starting (rebuttable) presumption, given that it's the cleaning industry,
is that it's sham contracting.

 

[deepgan]

Your reply is:

"No, I do not accept that arrangement, pay me what is owed before Christmas."

I did told them that. But then again This is what they said
“
Deep, I understand that health comes first and didn't disturb you once you told me about the hospitalisation.

However, you should also acknowledge that as a business there are costs associated with each job. That cost actually increased when I spent hours to settle each customer as they were furious about last minute cancellation.

And that's why we are not deducting any amount to cover our loss. We are keeping it as a security for future”.

 

[deepgan]

Whereas my starting (rebuttable) presumption, given that it's the cleaning industry,
is that it's sham contracting.

Yes
Now when I checked what’s shams contracting is , it is that.

 

[Rod]

"You are on notice to pay me $X. Should you not pay me before Christmas I will likely seek legal advice, and that is in neither of our interests."

I agree sham contracting is a possibility, but at a practical level you may lose your job if you seek to enforce your rights as an employee. What is more important to you - working (albeit temporarily till you find alternative work)? or being paid according to the award?

Suggest you keep working till you find alternative employment then go after what is owed.