Unpaid Wages & Entitlements

2. Your employer under the National Employment Standards and the applicable award is required to pay your outstanding pro rata annual leave and in some cases leave loading. Furthermore, under the applicable state long service leave act, if after 5 years of employment, you were made redundant and or terminated except for serious misconduct you are entitled to pro rata long service leave. If your employer has not attended to the payment of these statutory entitlements, please contact Connect Legal for advice.

The answer depends on whether your employment is governed by a modern award, for example, the Clerks Private Sector Award, The Commercial Sales Award and or the Manufacturing Award, then you have a legitimate right to claim a kilometer allowance. It is also essential you keep a log book of all sites travelled to and the kilometers driven.

The answer depends on the applicable award, what is the quantum of your fixed weekly rate, and the wording of your employment contract. We have helped numerous clients in these circumstances at the Federal Circuit Court and recovered their award entitlements. Please contact Richard to further discuss your matter.

Connect Legal has helped numerous clients in recovering superannuation, but this is not a straightforward task. We need to review the applicable award and superannuation legislation and prepare a detailed court statement of claim. Please contact our office if you have outstanding superannuation.

If your employer cannot pay your entitlements because they have gone bankrupt or into liquidation, you may be able to recover some or all of your unpaid wages and entitlements by making a claim under the General Employee Entitlements and Redundancy Scheme (GEERS) or Fair Entitlements Guarantee (FEG).

A) Ordinarily, this would be a straight-forward breach of contract claim which depending on the value of the claim would be brought in any of the state jurisdiction courts. However, breach of contract claims can be very expensive to prosecute and there are significant risks whereby costs orders can be made against you if you are unsuccessful. Our advice would be to consider filing a claim under section 543 of the Fair Work Act 2009 which entitles a national system employee to apply to the Federal Courts to enforce an entitlement that is said to be in the Act, “a safety net contractual entitlement”. Given that your entitlement relates to redundancy, this is a right under the national employment standards and therefore can be prosecuted as a safety net contractual entitlement. In relation to the bonus payments, there are differing judicial views as to whether that is a safety net contractual entitlement, however, given that section 139(1) provides that an incentive-based payment or a bonus is a term that can be included in modern awards, our position is that indeed such a claim can be made under section 543 as enforcing a safety net contractual entitlement. In the alternative, you may be able to file an application under section 323 of the Fair Work Act, however, whilst your employer’s conduct may be a technical breach of section 323, there are competing positions as to whether section 323 is an operative remedial provision of the Act which entitles you to actually recover the outstanding contractual entitlements that may be owed to you.

Your employment is more than likely governed by the Commercial Travelers Award and yes you are required to be paid a kilometer allowance for all km driven. Hopefully, you have maintained a travel diary confirming your km and locations travelled and we can then confirm if the $10,000.00 car allowance compensates above the award. If not, then Connect Legal can help recover your award entitlements in the Federal Circuit Court and or the NSW Chief Industrial Court where we have substantial experience for over two decades.

A) Any entitlement to overtime is born out of either your common law employment contract or an applicable industrial instrument such as an enterprise agreement or modern award. Your first inquiry should be by reviewing your written employment contract to see what it says about overtime because it is likely that your employer has inserted a clause that sets off any entitlements you have to overtime by the fact that you may be paid well above the relevant modern award. If for example, you work out your minimum entitlement under the award including your minimum rates of ordinary pay per hour and your overtime rates and you compare that relative to your base salary, if the award rate turns out to be more than your base salary, you have almost certainly been underpaid and this is so irrespective if there is some common law contract agreement such as a set-off clause in circumstances where you cannot contract out of the minimum entitlements in a modern award. There may be further questions asked of an evidentiary nature, which includes for example you having to prove to a court that you actually worked those overtime hours and indeed that you had either authority to do so or that the nature of the work you perform requires the performance of those hours. For example, some industrial instruments provide that you can only work overtime if you are authorized to do so.

You may apply to a competent court to allege that the contract for services that you were engaged in was in fact a sham, and as an employee, your former employer is required under the Superannuation Guarantee (Administration) Act 1992 (CTH) to pay Superannuation contributions of 9.5% or on your ordinary time earnings. Alternatively, you may have a workplace entitlement under an applicable industrial instrument (modern award) to recover the unpaid superannuation in a court with competent jurisdiction in circumstances where clauses in that instrument require your former employer to make the same Superannuation contributions to a Superannuation fund. In the alternative again, if you maintain that you are a contractor and not an employee, and your arrangement or engagement with the principal contractor occurred in an “employment-like setting” where the labor component of your services contract could have been performed by an employee, then your work arrangement may fall within the extended definition of “employee” in section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (CTH) entitling you to the payment of Superannuation.

There is a six-year time limitation period to claim your entitlements such as annual leave, long service leave notice, and or redundancy. However, if you have been underpaid in relation to your hourly rate, weekly allowances, and overtime you need to act even more quickly. Please ring our office for a no-obligation complimentary discussion.

In February 2012 Connect Legal and Jake Boghossian secured a landmark judgement for three owner drivers in the Industrial Court of NSW regarding the General Carriers Contract Determination. Since its inception, the award that applied to NSW owner drivers was unclear how it properly applied regarding the standby and kilometer rate and it was through the efforts of our office we secured a landmark judgement for our clients.

In August 2017, Connect Legal, its solicitors Mr. Richard Aslanian, Mr. Jake Boghossian and Mr. Nick Furlan (Barrister) secured a landmark judgment for Linda and Shane Putland who had been engaged as call center operators and as so-called independent contractors for over 10 years. Pursuant to these diligent efforts, Justice Bromwich of the Federal Court made significant orders in relation to breaches of the Fair Work Act 2009 and the Clerks Private Sector Award.