The issue of employer withholding pay in Australia is not uncommon. While employers have an obligation to pay their employees on time and in full, many end up underpaying or not paying employee entitlements according to their employment contract or registered agreement.
They may be deducting money from the employee’s pay or employee’s wages. This includes week’s wages or not providing entitlements owed.
If an employer or business withholds pay or makes no effort for paying wages, it can be a serious issue that parties can address through through legal channels. The National Employment Standards and Fair Work Act (see here) protect the rights of employees.
Under employment law, there are options that workers can take if their employee is withholding pay or other entitlements. This is regardless of whether it is hourly rate or minimum pay rates in Australia.
Generally, employer withholding pay in Australia refers to a situation where an employer fails to pay an employee the wages or salary they are owed for work performed. This can occur in various forms, such as:
- Deliberately not paying an employee for the work they have done wage theft (see here wage theft).
- Not paying an employee the correct amount of pay, such as not paying penalty rates, allowances or entitlements (for instance, if an employee worked on the weekend, or worked overnight shifts etc).
- Delaying payment of wages or salary to an employee without a valid reason.
It is important to note that employer withholding pay in Australia is a serious issue and is a breach of employment laws in the country. By law, employers need to pay their employees in full and on time for the work they have performed.
If an employer withholds pay, it can lead to financial hardship for the employee and may impact their ability to pay bills, rent or other expenses. Employees who are experiencing this issue should take action to protect their rights.
What Can I Do If My Employer Is Withholding Pay Australia?
Here are some steps an employee can take if their employer is withholding pay:
- Contact the employer: The first step should be to contact the employer and ask them why they have withheld the pay. It is possible that there has been an error or a misunderstanding that can be resolved through communication.
- Make a formal request for payment: If the employer is not forthcoming with payment, the employee should make a formal request for payment in writing. This can be in the form of an email or letter and should include the amount of pay that is owed, the dates of the pay period, and a deadline for payment.
- Contact the Fair Work Ombudsman: If the employer still refuses to pay, the employee can contact the Fair Work Ombudsman. This is a government agency that can provide advice and assistance. The Fair Work Ombudsman can investigate the matter and take action if necessary.
- Consider legal action: If all other avenues have been exhausted, the employee may need to consider legal action to recover the unpaid wages. This can involve lodging a claim with the court or the Fair Work Commission. It is important to obtain professional legal advice for such matters.
It’s important to note that employers who withhold pay are breaking the law and can face penalties. Employees who are experiencing this issue should seek advice. They should take action as soon as possible to ensure that they protect their rights.
Steps to Follow to Lodge a Claim
If an employer is withholding pay Australia, an employee can make a claim for unpaid wages with the Fair Work Commission (FWC):
- Check eligibility: Before lodging a claim, the employee should check their eligibility for making a claim with the FWC. To be eligible, the employee must have a modern award or an enterprise agreement, or be earning less than the high-income threshold.
- Gather evidence: The employee should gather evidence to support their claim. This includes pay slips, employment contracts, and any written correspondence with the employer.
- Complete the online form: The employee can complete the online form on the Fair Work Commission website to lodge their claim. The form will require information about the employee, the employer, and the details of the claim. It also includes the amount of unpaid wages and the dates of the pay period.
- Pay the lodgement fee: There is a fee for lodging a claim with the Fair Work Commission. The employee will need to pay this fee at the time of lodging their claim. They can pay the fee online with a credit card.
- Await response: After they lodge the claim, the Fair Work Commission will notify the employer and request a response. The employer will have an opportunity to respond to the claim and provide any evidence to support their position.
- Attend conciliation: If the employer does not pay the unpaid wages or there is a dispute about the claim, the Fair Work Commission may schedule a conciliation conference. The conference will be an opportunity for both parties to discuss the issue and try to reach an agreement.
- Decision: The Fair Work Commission will make a decision on the claim based on the evidence presented. This is if the matter cannot be resolved at the conciliation conference.
Obtaining Legal Advice from Lawyers
It’s important to note that making a claim with the Fair Work Commission can be a complex process. Employees may benefit from seeking legal advice to ensure they protect their rights.
Moreover, if you wish to opt for alternative dispute resolution processes with your employer, you should speak with our team. We have award-winning mediators and arbitrators. It is better to have legal representation when you approach employers who refuse to co-operate.
Commencing legal proceedings in the court is always more time-consuming and expensive. This is why it is better to engage the services of a lawyer. They can represent your interests and address this issue with your employer. For more information on other issues falling under employment law, you can read other blogs here.
If you are looking for more information on:
- employer withholding pay in Australia,
- minimum notice period,
- accumulated annual leave,
- or long service leave
You may consider speaking to our friendly and experienced staff. For more information on what to do if your employers deduct money, contact our team today.