• Seeking information on court/jurisdiction (I suspect QCAT but I may be wrong and Magistrates may be the proper option, I don’t know)?
• Seeking subsequent initiation protocols (forms, applications, etc. and cost) – I suspect it’s a question of filing the application with the fee in the proper jurisdiction and affecting service on the respondent? Is there a specific application that must be filed?
• Because two employers are involved (the business was sold in the course of employment but the same wage theft / same laws were violated) I suspect these are two separate legal actions?
Presumably each “Employer” will have to be named separately and pursued separately, a decidedly more complicated and costly affair but such seems to be my understanding.
Brief Case Notes:
My wife and I immigrated to Australia four years ago. My family has century old ties to Australia and we both have work rights. She is articulate, poised, bright and highly trustworthy. She is also from the Philippines and was decidedly profiled and discriminated against, by her employer, on the presumption she would not know better or could be easily exploited (supposition, perhaps, but also logical, rational and evidenced by conduct visited solely upon her).
As a service sector employee, working as a barista in a café (small business, “mum & dad” situation), she should have been paid in accordance with the federal Fair Work Act 2009 and her pay conduct governed by the subsidiary legislation the Restaurant Industry Award 2010. In broad strokes, and over the course of 2014 and 2015, she was cravenly underpaid between 40% and 70% of the wages due her every week. She worked 7 day weeks, was paid in cash (all documented by her in meticulous diarised hours) by the employer who operated the business the first year. She was the stand out, exemplary employee.
When the business was sold a year into her employment she hoped for corrective measure to her predicament. Whilst her value, as an asset, was surely a part of the sales appeal, the hoped for corrective wage conduct correction did not manifest. In fact, the new employer (operating the same trade name / same cafe name) merely instigated a new, more nuanced rort where he put her on payearoll/book for 20 odd hours a week at legal minimum and then paid her cash on all hours beyond the 20 odd hours put down as her week's work in the books (at the same 40%-70% underpayment as the previous owner).
I have calculated the wages /superannuation owing from both employers, though I suspect punitive and even discriminatory damages would not be unlikely or unreasonable here. The employer for the first year of her employment, "Employer One" affected wage theft of nearly $30,000 (zero super, zero penalties, zero holiday, zero anything but a scant small cash payment). We were highly vulnerable as we have a young disabled child and we were so fearful of lost income we endured the suffering far too long.
"Employer Two" was only the employer for some 5 months before the fear of job loss was less tolerable than the violation of law she was being subject to and FWO was notified, she left employment, “voluntarily” within weeks of the FWO notification. At the FWO mediation, the employer hid behind a senior partner in a firm and we were very much out of our depth. We were, in short overwhelmed by the affected conduct.
This party, "Employer Two" affected wage theft of approximately $13,000 (the cash envelopes, also in evidence and showing clear intent to defraud both her and the government) are existent and I suspect mean additional damages can be sought? Where the two employers may need to be legally pursued separately the sums may tend to make one advise two separate courts – but that would be a profoundly complicated affair for us as we are not lawyers and will be affecting process and conduct ourselves.
As noted, she approached Fair Work Australia with respect to "Employer Two" and was gravely disappointed with the outcome, so much so that she is inclined not to pursue the matter against either employer through FWO at all and go directly to court. These employers seem to know Fair Work has no enforcement authority so FWO becomes an abject lesson in discovery for them with no benefit to our position and only further marginalises us – clearly only a lawsuit will compel compliance or affect hoped for proper conduct.
My presumption is that QCAT is the appropriate jurisdiction against each employer – as I also presume each employer will have to be served and summoned as separate entities? The wage theft exacted by both parties cumulatively exceeds $50,000 though cumulative may have no legal merit in terms of court jurisdiction here?
We live in the Sunshine Coast so that would be Maroochydore for QCAT? The incident occurred in Brisbane and both employers continue to exist and conduct businesses in Brisbane. In fact, “Employer Two” still owns and operates the café in question. “Employer One” conducted under a family trust and “Employer Two” conducted under a Pty. Ltd. Additionally, will court application need to be made in the jurisdiction of Brisbane or can the employer parties be compelled to court in the Sunshine Coast? I presume we must file in the jurisdiction of the incident?
Are we to sue only for repayment of all wages, superannuation, etc. that were rorted by the two employers or are there grounds under employment law for other damages to be sought beyond the approximate and cumulative $53,000 in wage theft?
We are aware that justice is not free and comes at a cost. We hope only to better understand those costs and protocols, that we may be able to prosecute this ourselves.
Grateful for any and all learned legal opinion on the matter at hand.
• Seeking subsequent initiation protocols (forms, applications, etc. and cost) – I suspect it’s a question of filing the application with the fee in the proper jurisdiction and affecting service on the respondent? Is there a specific application that must be filed?
• Because two employers are involved (the business was sold in the course of employment but the same wage theft / same laws were violated) I suspect these are two separate legal actions?
Presumably each “Employer” will have to be named separately and pursued separately, a decidedly more complicated and costly affair but such seems to be my understanding.
Brief Case Notes:
My wife and I immigrated to Australia four years ago. My family has century old ties to Australia and we both have work rights. She is articulate, poised, bright and highly trustworthy. She is also from the Philippines and was decidedly profiled and discriminated against, by her employer, on the presumption she would not know better or could be easily exploited (supposition, perhaps, but also logical, rational and evidenced by conduct visited solely upon her).
As a service sector employee, working as a barista in a café (small business, “mum & dad” situation), she should have been paid in accordance with the federal Fair Work Act 2009 and her pay conduct governed by the subsidiary legislation the Restaurant Industry Award 2010. In broad strokes, and over the course of 2014 and 2015, she was cravenly underpaid between 40% and 70% of the wages due her every week. She worked 7 day weeks, was paid in cash (all documented by her in meticulous diarised hours) by the employer who operated the business the first year. She was the stand out, exemplary employee.
When the business was sold a year into her employment she hoped for corrective measure to her predicament. Whilst her value, as an asset, was surely a part of the sales appeal, the hoped for corrective wage conduct correction did not manifest. In fact, the new employer (operating the same trade name / same cafe name) merely instigated a new, more nuanced rort where he put her on payearoll/book for 20 odd hours a week at legal minimum and then paid her cash on all hours beyond the 20 odd hours put down as her week's work in the books (at the same 40%-70% underpayment as the previous owner).
I have calculated the wages /superannuation owing from both employers, though I suspect punitive and even discriminatory damages would not be unlikely or unreasonable here. The employer for the first year of her employment, "Employer One" affected wage theft of nearly $30,000 (zero super, zero penalties, zero holiday, zero anything but a scant small cash payment). We were highly vulnerable as we have a young disabled child and we were so fearful of lost income we endured the suffering far too long.
"Employer Two" was only the employer for some 5 months before the fear of job loss was less tolerable than the violation of law she was being subject to and FWO was notified, she left employment, “voluntarily” within weeks of the FWO notification. At the FWO mediation, the employer hid behind a senior partner in a firm and we were very much out of our depth. We were, in short overwhelmed by the affected conduct.
This party, "Employer Two" affected wage theft of approximately $13,000 (the cash envelopes, also in evidence and showing clear intent to defraud both her and the government) are existent and I suspect mean additional damages can be sought? Where the two employers may need to be legally pursued separately the sums may tend to make one advise two separate courts – but that would be a profoundly complicated affair for us as we are not lawyers and will be affecting process and conduct ourselves.
As noted, she approached Fair Work Australia with respect to "Employer Two" and was gravely disappointed with the outcome, so much so that she is inclined not to pursue the matter against either employer through FWO at all and go directly to court. These employers seem to know Fair Work has no enforcement authority so FWO becomes an abject lesson in discovery for them with no benefit to our position and only further marginalises us – clearly only a lawsuit will compel compliance or affect hoped for proper conduct.
My presumption is that QCAT is the appropriate jurisdiction against each employer – as I also presume each employer will have to be served and summoned as separate entities? The wage theft exacted by both parties cumulatively exceeds $50,000 though cumulative may have no legal merit in terms of court jurisdiction here?
We live in the Sunshine Coast so that would be Maroochydore for QCAT? The incident occurred in Brisbane and both employers continue to exist and conduct businesses in Brisbane. In fact, “Employer Two” still owns and operates the café in question. “Employer One” conducted under a family trust and “Employer Two” conducted under a Pty. Ltd. Additionally, will court application need to be made in the jurisdiction of Brisbane or can the employer parties be compelled to court in the Sunshine Coast? I presume we must file in the jurisdiction of the incident?
Are we to sue only for repayment of all wages, superannuation, etc. that were rorted by the two employers or are there grounds under employment law for other damages to be sought beyond the approximate and cumulative $53,000 in wage theft?
We are aware that justice is not free and comes at a cost. We hope only to better understand those costs and protocols, that we may be able to prosecute this ourselves.
Grateful for any and all learned legal opinion on the matter at hand.
