Underpaid as a Casual - Help Under Employment Law?

[Scotty101]

Hi,

So, I need some help on Employment Law before I proceed with anything. I have been employed as a casual by a company for the past 2.8 years. In this time, I have never signed an agreement stipulating OT penalties and allowances are or aren't applied. I've never been offered the opportunity to go fulltime, even though I am classed as a long term employee.

I have a verbal agreement of 8 hrs a day (can only be 12hrs by agreement) 38-hr-week and a verbal agreement of $25ph as a base rate. I'd never received a payslip but I do have all of my hours worked through a Timekeeper App.

In the time I have worked there, I have only ever been paid $25 an hour, regardless of the amount of OT after 8 hours a day, I have also never taken an actual unpaid break. I've always just worked until the day's job was done.

Please help me.

 

[Rod]

What do you want?

 

[Scotty101]

Well I checked the FWO and I fall under an award, and I haven't been getting paid under that award

 

[Scotty101]

Well I checked the FWO and I fall under an award, -and. I haven't been getting paid under that award

I have weeks where I've done 50+ hours and just been paid $25 an hour for those hours worked after 38 hrs and they weren't classed as OT

 

[Rod]

If you are not afraid of losing your job, lodge a complaint with the FWO and see how far they take it. They may decide not to pursue it because they are under resourced, leaving you to undertake your own legal action to recover underpayments.

I'd expect the employer is likely to let you go once you do this.

The other option you have, but with an equal risk of being fired is to say no to unpaid overtime. You need to work out what is important to you.

 

[Scotty101]

I'm talking 150k here.

Not just unpaid OT but unpaid Casual Loading and Industry Allowance according to award, I am also backed by a union.

Is there anything an employer can legally do to avoid paying OT loading and allowance?

 

[Scotty101]

If you are not afraid of losing your job lodge a complaint with the FWO and see how far they take it. They may decide not to pursue it because they are under resourced leaving you to undertake your own legal action to recover underpayments.

I'd expect the employer is likely to let you go once you do this.

The other option you have, but with an equal risk of being fired is to say no to unpaid overtime. You need to work out what is important to you.

If they let me go, wouldn't that be ground for unfair dismissal as I'm aware they can't fire you for asking about wages ?

 

[Rod]

Is there anything an employer can legally do to avoid paying OT Loading and allowance.

None that I know of.

If they let me go wouldn't that be ground for unfair Dismissal as I'm aware they can't fire you for asking about wages ?

They won't fire you for asking about wages. There will be 'a slowing down of business' or 'change in business practice' or <insert excuse here>.

Plus being a casual they don't need a good reason.

 

[Scotty101]

So I basically have rights to a claim of unpaid wages? But if there's evidence of me questioning wages then their "excuse" could be deemed a lie and grounds for misrepresention

The fact that I've been underpaid like this is already adverse and a means of financial deception

 

[Rod]

Yes, based on the limited information provided. You would need to prove misrepresentation. Good luck with that.

Not necessarily. Deception implies intent. Do you have proof of intent?