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Employees are entitled to get the minimum rate of pay as required by law and defined in their employment contract.
What is the minimum rate of pay required by law?
The minimum rate of pay for many occupations is found in awards and enterprise agreements. These agreements set minimum rates for:
- ordinary hours of work
- penalty rates (including for weekend and public holiday work)
- casual rates.
The national minimum wage order sets the minimum rate of pay for national system employees not covered by an award or an enterprise agreement.
In addition to the above, all employees are covered by either the National Employment Standards or the Queensland Employment Standards if you are in Queensland.
What if my employment contract has terms different to an applicable award or enterprise agreement?
Your employment contract describes the terms and conditions of the employment relationship, but it must not have terms and conditions that are less favourable to you than minimum legal entitlements for employees as set by either the National Employment Standards or the Queensland Employment Standards.
In most circumstances, an employer cannot contract out of an obligation contained in an award or enterprise agreement. However, an employer may be able to pay an “all-inclusive” wage to cover an employee’s monetary entitlements under an applicable award or enterprise agreement.
If you’re thinking you are being paid less than you’re entitled to, speak with one of our employment lawyers today.
What superannuation is my employer required to pay?
Employers are required to pay superannuation contributions in accordance with superannuation guarantee legislation. Some contractors are also entitled to receive superannuation.
Information about your superannuation entitlements can be found on the Australian Taxation Office website. You can also make a complaint to the Australian Taxation Office if you think your employer has not paid your superannuation.
What is “sham contracting”?
The term “sham contracting” refers to an arrangement where a business attempts to disguise an employment relationship as a contracting relationship. Some employers do this to avoid paying the employee their legal entitlements.
Even if you agree to be called a “contractor”, you may still be considered by law to be an employee – and your employer may therefore need to pay you entitlements only paid to employees such as overtime, allowances and superannuation.
What are my rights if I have been underpaid?
You can make a complaint to the Fair Work Ombudsman if you have been underpaid. The Ombudsman can start legal proceedings on your behalf if your employer fails to pay your minimum entitlements under the relevant award or enterprise agreement.
If the Fair Work Ombudsman is unable to help you with your claim, you may be able to take legal action against your employer in the State or Federal Courts.