Please note that this is general information and may not be relevant to your particular matter. This should not be taken as legal advice. 

National Employment Standards  

The National Employment Standards (NES) are 11 minimum employment entitlements that have to be provided to all workers in the national workplace relations system. All workers in Australia are national workplace relations system workers unless they are self-employed or work for a government body. Australian workers, including visa holders, migrant workers, and Australian citizens are entitled to the same National Employment Standards.  

National Employment Standards set out minimum entitlements in relation to the following: 

• Maximum weekly hours of work 
• Minimum rates of payment 
• Requests for flexible working arrangements 
• Parental leave and related entitlements 
• Community service leave 
• Annual leave 
• Personal/carer’s leave, compassionate leave and family and domestic violence leave 
• Long service leave 
• Public holidays 
• Notice of termination and redundancy pay 

You can find more information on each of the standards via this link: https://www.fairwork.gov.au/employment-conditions/national-employment-standards#nes-entitlements  

When you start a new job, your employer is required by Australian workplace laws to provide you with a copy of a Fair Work Information Statement, which is a document with important information about your rights at work.

You can find the Fair Work Information Statement via this link: https://www.fairwork.gov.au/sites/default/files/migration/724/Fair-Work-Information-Statement.pdf  

If you are a casual worker, your employer is also required to provide you with a copy of the Casual Employment Information Statement, which has important information about what it means to be a casual worker and how you can become a permanent worker.

You can find the Casual Employment Information Statement via this link: https://www.fairwork.gov.au/sites/default/files/migration/724/casual-employment-information-statement.pdf  
 

Visa Working Requirements 

It is important to check the requirements of your visa to confirm if you are allowed to work in Australia, and any conditions your visa may have. For example, some visas require minimum working hours to be completed each week, while some visas set a maximum of hours that can be worked each week. Regardless of what your visa requirements are, you are still entitled to the National Employment Standards.
 

You should contact a registered Migration Agent if you have questions about your visa conditions. The Office of the Migration Agents Registration Authority (OMARA) website has a list of registered Migration Agents at the following link:
https://portal.mara.gov.au/search-the-register-of-migration-agents/
 

You can check the working conditions of your visa at the following link: https://online.immi.gov.au/evo/firstParty?actionType=query  

Workplace Exploitation  

Migrant workers are at a higher risk of experiencing workplace exploitation. This is because of a number of factors including fear of loss of income, lack of knowledge about Australian workplace laws, and fear of possible immigration consequences if they report breaches of Australian workplace laws. Some high risk industries with high rates of migrant exploitation are construction, agriculture and hospitality.  

Workplace exploitation involves employers not complying with the minimum legal entitlements of their workers. Some signs of workplace exploitation include the following: 

• An employer putting pressure on you to work more than the conditions of your visa allow. 
• An employer asking you to pay them money to employ you, or to pay them for a Working Visa. This is against the law. 
• Withholding your passport or personal items. 
• Failing to provide you with payslips or pay your minimum entitlements. 

• Employers promising permanent residence in Australia. An employer cannot guarantee this. Only the Department of Home Affairs can grant permanent residency to a Visa Holder. 
• Requiring you to get an Australian Business Number (ABN) when you are not running your own business. You can find more information about when it is appropriate to have an ABN in our factsheet on sham contacts.  

What is the Assurance Protocol? 

Migrant workers are often concerned that they will lose their visa if they report their employer’s conduct when it falls below the National Employment Standards. The assurance protocol is an arrangement between the Department of Home affairs and the Fair Work Ombudsman (FWO) to support visa holders who approach the FWO for help if they have breached their work-related visa conditions because of workplace exploitation.  This protocol was set up to encourage migrant workers to seek help when being exploited without the fear of their visa being cancelled.
 

The following Visa subclasses are eligible for the Assurance Protocol: 

• Subclass 500 – (Student Visa) 
• Subclass 417 (Working Holiday Visa) 
• Subclass 462 Work and Holiday Visa  
• Subclass 457 (Temporary Work (Skilled) Visa  

• Subclass 482 (Temporary Skill Shortage (TSS) Visa 

Further Resources 

For more information on your rights as a Migrant Worker, please visit https://immi.homeaffairs.gov.au/visas/working-in-australia/work-rights-and-exploitation  

For more information on Wage Theft, please visit:
https://wwcsa.org.au/campaigns/ending-wage-theft/  

For more information about when it is appropriate for a worker to have or use their ABN in the workplace, please visit: How to spot a Sham Contract in a Job Advertisement. – Working Women’s Centre | Working Women’s Centre (wwcsa.org.au)   

Please note that this is general information & may not be relevant to your particular matter. This should not be taken as legal advice 

Superannuation may not be very exciting or seem like something you need to think about now,  but ensuring all your superannuation payments are correct could make a big difference when you retire. This factsheet will explain some of the basic rules around superannuation including how much you should get and when, and what you can do if you do not get paid all or some of your superannuation entitlements.

What is superannuation?

Superannuation (or ‘super’) is a compulsory system of placing a minimum percentage of your income into a superannuation fund which will become your retirement savings.

Most modern awards contain a superannuation clause requiring employers to make superannuation contributions to a superannuation fund for the benefit of an employee to avoid the employer having to pay the legislated superannuation guarantee charge.

Can I choose my own superannuation fund?

Under superannuation legislation employees can choose their own superannuation fund.

You can nominate your chosen superannuation fund by completing the Superannuation Standard Choice Form and proving it to your employer. You can follow the link below to find the form on the Australian Tax Office website:

https://www.ato.gov.au/Forms/Superannuation-(super)-standard-choice-form/

Employers will have a default fund that they use if you do not choose your own superannuation fund.

How much super superannuation should I be receiving and how often should payments be made? 

The minimum superannuation you should currently be receiving is 10.5% of your ordinary time earnings (see below for an explanation of ordinary time earnings). It is scheduled to progressively increase to 12% by 2025.

Superannuation should be paid by your employer into your nominated fund at least quarterly (i.e. at least every three months). The current superannuation guarantee percentage is the minimum required by law. You may be entitled to a higher amount under a modern award or an enterprise agreement.

Employees can also make voluntary contributions to their superannuation to increase their savings.

What are ordinary time earnings?

Ordinary time earnings are the amounts you earn for your ordinary hours of work which include:

• over-award payments
• commissions
• shift loading and penalty rates
• annual leave loading
• allowances; and
• bonuses

Ordinary hours

An employee’s ordinary hours are the normal hours they work. For a full-time worker, this may be 38 hours or a number of hours and for a part-time worker, this will be the agreed minimum hours as in an award or agreement.

If you can’t determine the normal hours of work the actual hours the employee works are their ordinary hours of work. For example, casual workers hours may vary and their ordinary hours are the hours they actually work.

However, payments received for working overtime are generally not considered ordinary time earnings and therefore do not attract a payment for superannuation.

Example:

Have a look at the example pay slip below:

Pay Slip Example

You can see from Jenny’s pay slip above, that she received payment in this pay period for her ordinary hours, an allowance, and overtime.

She is paid $71.19 superannuation which is 10.5% of payments received for ordinary hours (i.e. $600) and the allowance (i.e. $78), totaling $749.19.

She has not received superannuation on the $300 payment for overtime hours worked.

You can see the 10.5% superannuation is calculated on her gross ordinary time earnings of $678 (i.e. before tax is taken out). Her superannuation has been calculated correctly this pay.

Is there still a minimum amount I need to earn before superannuation is paid?

No. Previously, employees needed to earn at least $450 per month to attract superannuation payments.

However, there has been a change to the law and from 1 July 2022, employers will be required to make super guarantee contributions to their eligible employee’s super fund regardless of how much the employee is paid.

What can I do if my super has not been paid?

If employees are paid less than their minimum entitlements, including superannuation, they can make claims to be back paid.

The South Australian Employment Tribunal (SAET) is the jurisdiction to determine underpayment of wages and unpaid superannuation claims.

You can lodge a Money Claim for your unpaid superannuation. See their website for more information.

https://www.saet.sa.gov.au/industrial-and-employment/money-claims-monetary-claims/

It is also possible to report your employer to the Australia Tax Office (ATO) if they have not paid your superannuation. Here is a link to information about reporting your employer to the ATO:

https://www.ato.gov.au/calculators-and-tools/report-unpaid-super-contributions-from-my-employer/

Contact the Working Women’s Centre SA if you need advice about claiming outstanding superannuation entitlement.

About this event

Are you an international student doing a part-time/casual job in South Australia? Do you have questions about your work? Questions such as: 

• Should I be receiving payslips?  
• What are the legal pay rates?  
• Are cash-in-hand jobs illegal?  
• Do I need an ABN?  
• If I accept a cash-in-hand job, will my visa be cancelled?  
• What can I do if I am being underpaid or mistreated at work?  
• What is a trade union and should I become a union member?

Come along and we will unpack some of your questions about workplace rights. It’s okay if you don’t have any prepared questions, just come along and you may learn something you didn’t know before. 

This event will have 2 parts –  

1) Know your rights education session: We will take you through the basics of your rights at work. You will leave this session knowing more about your work rights in Australian workplaces.  We will also tell you where you can go if you have questions or problems in the future.   

2) Free Legal Advice Clinic: The Working Women’s Centre can offer free legal advice to international students, migrants, and refugees about work-related issues. Usually, one would have to go through an online or phone booking system but at our advice clinic you can simply walk up and ask our experienced advisors any questions you may have about your current or past working situations!  

Snacks will be provided!  

We acknowledge that this event is on Kaurna land and we pay our respect to the traditional custodians of the land, past and present . Sovereignty was never ceded.

Appointments will be held at the Legal Advice Clinic – City West Campus on:

• * Friday, 17 September

It’s Equal Pay Day today!  Can you believe we still need this day? 

Equal Pay Day was established to address the gender pay gap, the difference between women’s and men’s average weekly full-time equivalent earnings, expressed as a percentage of men’s earnings.

According to the Workplace Gender Equality Agency (WGEA), in 2021, the national gender pay gap is 14.20%, which means that Australian working women on average are paid $261.50 less than their male counterparts. What a disgrace!

WHEN

03 Sep 2021
2pm – 5pm

EVENT TYPE

Workshop

WHERE

69 Grote Street, Adelaide SA

Details on how to register here

Accessibility: Please note that this venue is not wheelchair accessible, there are volunteers who can assist with accessing the venue if required, but only upon request.

We acknowledge that this event is on Kaurna land and we pay our respect to the traditional custodians of the land, past and present. Sovereignty was never ceded.

Will you join us on 19th September for the fundraising Lumary City-Bay Fun Run ?

Registrations are open! Join our team & start fundraising for the Working Women’s Centre here:

https://citybay21.grassrootz.com/working-women-s-centre-sa

Do you need free, confidential legal & industrial advice about your rights at work?

Do you need free, confidential legal & industrial advice about your rights at work?

This interview was published by the Advertiser SA Weekend on July 31 2021

Read the full article on the Advertiser SA Weekend here.

The inside story of how thousands of Australians who have been the victim of wage theft are finally fighting back. Plus, the big corporate names dragged into the courtroom.

“When I graduated I wanted to find a job and get some experience,” the now 21-year-old says. “I feel this is suitable for me and I applied.”

The job she found was in advertising and sales for a wine business based in the city. Xiao An, not her real name, was there for two months and was never paid. The ­excuses started early. It was the end of the financial year, she was told. The company was being restructured.

“They even showed me the screenshot of the bank account of the company, saying they did not have enough money to pay so I have to wait,” she says.

“I feel like I am constantly being frauded. The boss kept making unrealistic promises to me that I’ll be promoted, getting a high ­yearly salary.”

All the while, Xiao An was working five days a week, sometimes weekends as well.

“I had to work full-time, and even overtime during weekends in that toxic, competitive environment but nothing was paid. Sometimes after working, I cried all the way to home. It was so stressful,” she says.

The issue of workers being underpaid, or not paid at all, was thrust firmly into the spotlight in February when a video of an assault at the Fun Tea store in Chinatown went viral. The video showed a young worker at Fun Tea being slapped and kicked after complaining she was only being paid $10 an hour, less than half the wage the worker was entitled to. The ­national minimum wage is $20.33 an hour.

A man called Lei Guo has pleaded guilty to the assault and will be sentenced next month. Guo was said to be a friend of then Fun Tea director Jason Duan, who later appeared on a video with a Sydney-based YouTube user and admitted he had only paid the victim $10 an hour.

The assault of the young student caused immediate backlash and brought renewed focus on to a dark part of the national economy – the exploitation of young and vulnerable workers by those who employ them. Often they are international students on visas with no understanding of their rights, with poor English skills and little support.

The federal government’s Fair Work Ombudsman started an investigation into Chinatown’s restaurants and a preliminary report found “very high” non-­compliance levels.

That investigation is ongoing but in April, the Ombudsman Sandra Parker said: “Our intelligence indicates that Adelaide’s Chinatown precinct employs many workers on visas who may also have limited ­English skills, which can lead to vulnerability and exploitation.” It is expected the Ombudsman will file charges year end.

Part of the solution may be for universities to provide more information to its students when they arrive in the country to tell them what their rights are and what support is available to them.

Meng Liu came to Australia in 2018 to study social work at Flinders. She, too, was ripped off by an employer.

“The first month I was here, I realised that everyone around me was doing an underpaid job, like all the international students I knew,” Liu says. “At that stage I didn’t know that was illegal.

The numbers are in, and here at the South Australian Working Women’s Centre SA we have recovered $622k of stolen wages, compensation and penalties for workers in the past financial year.

That means that over the past two years, we’ve won back $1.2 million.  

We are incredibly proud of all the workers that have taken a stand against injustice in the past year. With the support of our small team, they have fought for what they are owed.

Support the work that we do standing up for workers by donating to the Working Women’s Centre.

The Working Women’s Centre in collaboration with Fair Go SA, will co-host an educational workshop on worker’s rights and the Fair Work Act.

This will be followed by a confidential (one to one) advice clinic for any workers who need free industrial advice about work.

Our workshop will cover topics including:

• Workplace bullying
• Discrimination
• Sham contracting
• Unfair Dismissal
• Parental Leave
• Workplace sexual harassment
• Responding to domestic violence at work
• Labour Exploitation

At the Confidential Industrial Advice Clinic you can:

• Speak to an Industrial Officer who has a background in Employment law & qualifications in law
• Ask questions
• Get information and personalised advice about your workplace issues.
• Book a further free appointment with the Working Women’s Centre Industrial Officers for a follow-up & further assistance.

WHEN:

23 Jul 2021
2pm – 5pm

EVENT TYPE

Workshop

WHERE

69 Grote Street, Adelaide SA

If you cannot register for this event via the We Chat QR code, please email to register: reception@wwc.org.au

Accessibility: Please note that this venue is not wheelchair accessible, there are volunteers who can assist with accessing the venue if required, but only upon request.

We acknowledge that this event is on Kaurna land and we pay our respect to the traditional custodians of the land, past and present. Sovereignty was never ceded.

The Working Women’s Centre in collaboration with Fair Go SA, will co-host an educational workshop on worker’s rights and the Fair Work Act.

This will be followed by a confidential (one to one) advice clinic for any workers who need free industrial advice about work.

Our workshop will cover topics including:

• Workplace bullying
• Discrimination
• Sham contracting
• Unfair Dismissal
• Parental Leave
• Workplace sexual harassment
• Responding to domestic violence at work
• Labour Exploitation

At the Confidential Industrial Advice Clinic you can:

• Speak to an Industrial Officer who has a background in Employment law & qualifications in law
• Ask questions
• Get information and personalised advice about your workplace issues.
• Book a further free appointment with the Working Women’s Centre Industrial Officers for a follow-up & further assistance.

If you cannot register for this event via the We Chat QR code, please email to register: meng@wwc.org.au

Accessibility: Please note that this venue is not wheelchair accessible, there are volunteers who can assist with accessing the venue if required, but only upon request.

We acknowledge that this event is on Kaurna land and we pay our respect to the traditional custodians of the land, past and present. Sovereignty was never ceded.

This information is intended to assist with preparing and participating in conciliation conferences with the Fair Work Commission, South Australian Employment Tribunal, Equal Opportunity Commission, and the Australian Human Rights Commission.

What is a Conciliation Conference?

• A confidential meeting in which parties come together to try and resolve a matter with the assistance of an accredited conciliator.
• The conciliator is independent from the parties to the dispute and is trained and experienced in dispute resolution.
• A conciliation conference will be held on a specific date, usually via telephone. On this date the conciliator will call both you and your employer.
• You may choose to be represented by a lawyer, advocate or union official. However, it is not uncommon to be self-represented in conciliation conferences.

Note: There is no requirement to be represented.

What is the conciliator’s role?

• To facilitate communication between two parties and direct discussion around the issues. Conciliators may raise questions, make comments or recommendations to help the parties come to a resolution.
• Conciliators do not make decisions or decide who “wins” or “loses”. They assist the parties to come to an agreement to resolve the matter.
• These discussions are undertaken on a “without prejudice” basis, meaning anything said in the conference cannot be used later if the matter proceeds to a Hearing.

Note: You can have a support person with you during the conciliation conference. This could be a friend or family member. A support person may take notes on your behalf or help you if you feel overwhelmed.

How to prepare for a conciliation conference?

• Gather all relevant documents and forms in relation to your claim.
• Prepare an opening statement to read out at the beginning of the conciliation conference. This is your opportunity to tell your story and explain why you say the employer has broken the law.
• You will be asked what you are seeking to resolve the matter. You should prepare your ideal proposal for settlement
• Ensure you have considered what your first offer will be e.g. an amount of compensation, a statement of service, or conversion of your termination to resignation. Start with your best-case scenario, so you can compromise if necessary.

Opening Statements: This is a summary of your application. The purpose of this statement is to put forward your case in a concise way at the beginning of the conference.

What happens during a conciliation conference?

• The first phase on a conciliation conference is called a “joint session”. A joint session is where all the parties are on the same conference call.
• The conciliator will usually commence the conference by introducing the parties and explaining the how the conference will proceed. They will usually advise of the ground rules or guidelines which always involves confidentiality and respectful behaviours.
• Each side is given an opportunity to present an opening statement or comments. This outlines key facts which have led to the conciliation.
• Each side then has an opportunity to identify and explain key issues in their submissions.
• Following this, there may be some general discussion and a chance to clarify issues raised and ask questions about what has been said. The Conciliator may also ask questions of the parties.
• Each party will have a chance to say their side of the story.
• The conciliator will usually close the joint session and then speak with each side privately, in separate sessions, and ask for suggestions on how they wish to resolve/settle the matter.
• The offer will then be taken to the other party. The conciliator facilitates a negotiation and may go back and forth between the parties exchanging offers several times.

Another example of a guideline during a conciliation is that only one person may talk at a time. A conciliator will ensure the conversation remains polite and on topic.

What next?

• If the parties come to an agreement the conciliator will help draft the “Terms of Settlement” document for both parties to sign. Terms of Settlement are documents that outline what the parties have agreed on and may include a clause that requires the terms to be kept confidential.
• If an agreement is made, it is binding, and the complaint will be closed. If no agreement is reached, the next stage is a Hearing. A Hearing, or Trial, is a more formal process which requires giving evidence and submissions, and a binding Decision is made by a Member of the relevant Tribunal.

Note: Parties are under no obligation to reach a settlement.

For more information, read our Top 10 Tips for Self-Representing in the Fair Work Commission fact sheet. 

Please note that this is general information & may not be relevant to your particular matter. This toolkit should not be taken as legal advice.

When applying for a new job it is important to understand exactly what type of employment relationship you may be entering. There can be serious legal consequences if the employment relationship is incorrectly labelled. For example, some job advertisements might state the position available is for an independent contractor when the true nature of the position is really an employee. Independent contractors and employees have different obligations and rights in relation to the work they perform. It is important to know the difference between the two so you can ensure you are receiving all your legal entitlements and that you are complying with any legal obligations.

What’s the difference between an independent contractor and an employee?

There are a number of factors that assist in determining the difference between an employee and an independent contractor. In general:

Independent Contractors work for themselves and are their own boss. They set their own fee for the work that they perform and have control of when and how they work. They usually create and supply invoices to receive payment for their work based on the completion of a job. Independent contractors arrange and pay their own taxation and are required to have an Australian Business Number (ABN).

Employees work for someone else and are not running their own business. The employer controls how, where, and when the employee does their work. Employees are often paid by the hour and receive a wage or salary. Employees are not required to pay their own taxation and their employer will deduct taxation and pay it to the Australian Taxation Office (ATO). Employees are entitled to certain types of leave (i.e. long service and parental leave) and superannuation.

Sometimes the true nature of the relationship will be obvious but sometimes a more fulsome analysis of all the circumstances of the working relationship is required.

It is important to note that no single indicator can determine if a person is a contractor or an employee. Each assessment is based on the individual circumstances of the work arrangement in place. Courts always look at the totality of the relationship between the parties when determining the status of a person’s working relationship.

What is sham contracting?

How can you spot a sham contract in a job advertisement?

1. The requirement to “follow instructions” and start early points to an employment relationship. A true independent contractor running their own business would not be expected to follow instructions and should be able to negotiate when the work commences.
2. The requirement to have an ABN does not necessarily point to an independent contractor. Some employers will say you need an ABN but all the other elements of employment are present
3. The requirement to work a certain number of days per week and certain number of hours per day points towards an employment relationship. It demonstrates the worker does not have control over when the hours are worked.
4. Stating that the position would suit someone with a background of “baker, florist, pastry chef etc” indicates the position does not require any particular expertise. This points towards an employment relationship because someone truly running their own business would likely specialise in a particular field.

It is unlawful for an employer to pretend that they are offering a person a job as an independent contractor when the position actually involves entering into an employment contract. Before accepting a position like this, you should ask more questions about the true nature of the position and get some advice.

Case Studies

Have a read through these case studies for further guidance on how to spot a sham contracting arrangement:

CASE STUDY 1:

Stevie was offered a job in a beauty salon as a Beauty Therapist. Stevie is qualified to provide a full range of beauty treatments. Stevie was told she needed an ABN and would need to arrange to pay her own tax. Stevie was told she would be paid $25 per hour and would be given four shifts per week. Her shift times were in line with the salon’s opening hours which were 9am to 5:30pm. She was given a uniform with the Beauty Salon’s logo which she was required to wear. Stevie was told to book and perform nail treatments only. The beauty salon owner told her she would need to bring in her own customers and generate patronage.

Employee or independent contractor?

Stevie is an employee. She has no control over where, when and how she worked. Even though she was told she needed an ABN and was required to pay her own tax, she was not running her own business and had no control over her work. Stevie may be entitled to a higher rate or pay and superannuation.

CASE STUDY 2:

Asma is an Electrician and performs work on a residential building site for a large building company called BuildPro. BuildPro engages Asma to wire the new house they have built. Asma gives Buildpro a quote for the job and says she will invoice BuildPro when the work is complete. BuildPro asks Asma to finish the job in three months. The job is too big for Asma to complete alone so she engages another worker to do the job with her. Asma has an ABN and has undertaken to work six days per week from 7am to 3pm to get the job finished.

Employee or independent contractor?

Asma is an independent contractor. She determined her fee for the work and invoiced BuildPro accordingly. Although BuildPro requested the work be done within three months, Asma was able to determine her hours of work and was able to employ someone else to delegate work to. Asma is running her own business and had control over many aspects of the job which all indicate she was an independent contractor.

Please note that this is general information & may not be relevant to your particular matter. This toolkit should not be taken as legal advice.

Who is an arts worker?

The term “arts workers” encompasses a hugely diverse range of workers. People working in the arts may be visual artists, they may work in the literary arts or the performing arts of dance, music, and theatre. There are even more types of workers when you consider all the roles supporting the arts including arts administration, production crews, ticket sellers, ushers, spruikers, and festival workers. The length of the list of arts workers is only confined to the limits of human creativity.

Working out your rights and entitlements in the arts can therefore be like finding your way in a labyrinth. Because of the diversity in the nature of work performed, there are many workplace laws that govern working in the arts.

Here are some questions and answers to common issues for arts workers.

Am I an employee?

Workers in the arts are commonly engaged as either employees or independent contractors. It is important to understand the nature of your engagement as a worker because there are different legal rights and obligations depending on the working relationship. For example, some workers are entitled to minimum rates of pay and leave, while others set their own pay and must organise their own leave arrangements.

How can you tell which is which?

Employees work in someone else’s business. The employer controls how, where and when they do their work, and pays them a wage or salary. Employees are entitled to superannuation and they have payroll tax deducted from their pay by their employer. Most employees are entitlement to minimum wages and conditions from an award.

Examples: Full-time arts administration worker, an usher at a theatre, casual sound engineer at a theatre company, or a food and beverage attendant in an outdoor bar at a festival or event.

Independent Contractors work for themselves and are their own boss. They are free to set their own fee for the work that they perform and have control of when and how they work. They should have an ABN, invoice for their work, and organise payment of their own taxation. They may invoice for completion of a job rather by the hour. There is no minimum rate an independent contractor can rely on, rather they set their rates according to the free-market.

Examples: a visual artist engaged to paint and complete two large murals, or a musician playing a three hour set at a particular event.

Sometimes the true nature of the relationship will be obvious but sometimes a more fulsome analysis of all the circumstances of the working relationship is required. There are a full range of factors to be considered in determining whether a worker is an employee or an independent contractor.

Some employers treat their workers as independent contractors when they are really employees. For example, the employer might require the workers to have an ABN and invoice for their work, yet they are paid by the hour and directed to work certain days and times at the employer’s discretion.

It is unlawful for an employer to misrepresent employment as an independent contracting arrangement. This is known as sham contracting and it is against the law.

If a worker is in a sham contracting arrangement, they may be entitled to claim unpaid wages, superannuation and leave entitlements, and the employer may be required to pay a penalty for breaking the law.

If you think you are in a sham contract arrangement you should contact the WWC for advice.

Where do employees find their minimum entitlements?

Awards or modern awards are legal documents that outline employees’ minimum pay rates and conditions.

There are more than 120 awards that cover most people who work in Australia. Awards apply to employers and employees depending on the industry or occupation they work in and the type of work they perform.

Here are some of the Awards that might apply to workers in the arts and some examples of the types of work they cover:

Amusement, Events and Recreation Award 2020:
Animal attendant, Ride attendant, Tour guide, Customer Service Officer, Meet and Greet/Concierge, Photography Attendant, Host/Presenter, Admissions/Entrance attendant, Usher, Ticket seller, Security Officer, Receptionist, Programme seller, Cashier

Broadcasting, Recorded Entertainment and Cinemas Award 2020:
Television Broadcasting, Radio Broadcasting, Cinema and film production, screen actors, Musicians for film and TV, Motion Picture Production, dancer, mime artist or puppeteer

Graphic Arts, Printing and Publishing Award 2020:
Creation of designs, concepts or layouts used in the advertising, marketing of commodities or services, commercial and industrial art including illustrations, borders, retouching of photographs, photographic reproportioning and lettering by hand

Live Performance Award 2020:
Producing, staging, audio/visual, presenting, performing, administration, programming, workshops, set and prop manufacture, operatic, orchestral, dance, erotic, revue, comedy, or musical performances; includes sale, service or preparation of food or drink; and selling tickets

Textile, Clothing, Footwear and Associated Industries Award 2020:
Fashion and Textile design

Travelling Shows Award 2020:
Travelling shows including the operation by an itinerant employer of any stand, fixture or structure for the purpose of providing amusement, food and/or recreation, carnival, rodeo, community event or festival

For a full list of all the moderns award and to access your award you can visit: https://www.fairwork.gov.au/awards-and-agreements/awards/list-of-awards

If you need help working out which award applies to the work you perform call the WWC.

Do I get breaks? How long should my shift be? – Common conditions in Awards

For specific information about your rights and entitlements you should find out the modern award that covers your employment. However, there are some common conditions within the awards that might apply to your work in the arts:

Breaks: Most awards stipulate that workers get a break after five hours. Some awards provide for paid breaks and others provide that breaks are unpaid. Some awards also provide for rest breaks as well as meal breaks.

Casual loadings: Most awards will provide a loading of 25% for casual workers to compensate them for not receiving sick leave, annual leave or paid public holidays.

Penalty rates: Most awards provide penalty rates which provides a higher hourly rate of pay for working unsociable hours like public holidays, late nights or early mornings and weekends.

Minimum engagement: Minimum engagement periods require that the minimum shift length must be a certain number of hours. The minimum engagement period is usually between two and four hours.

Overtime: Many awards provide that you get paid extra after working a certain number of hours in a day i.e. more than 10 hours in one shift.

We re-iterate that the conditions outline above are general and if you would like advice on your award entitlements contact the WWC.

What can I do if I’m being underpaid?

Claim the money back! There is no lawful basis for an employer to pay you less than the minimum wage in your award or contract.

You can calculate what is owed and request they pay you the difference between what you were actually paid and what the minimum entitlement should have been.

You have up to six years to follow-up wages owed to you as a result of wage theft. You can make a claim to the South Australian Employment Tribunal.

Our Industrial Officers can give you advice about claiming wages if you think you may be owed wages from a current or previous job. We also have other fact-sheets that can assist with drafting a letter of demand to your employer.

Sexual harassment in the arts is NOT OK!

The #Metoo Movement was born out of the art world and we know sexual harassment is a problem across the industry. The Media Arts Entertainment Alliance, the union that covers many arts workers in Australia, conducted a survey of sexual harassment, criminal misconduct, and bullying in the Australian live performance industry. The results showed that 40% of the respondents had experienced sexual harassment.

Sexual harassment is any unwelcome conduct of a sexual nature. If a reasonable person would anticipate that the behaviour might make you feel offended, humiliated, or intimidated, it may be sexual harassment.

Sexual harassment can include:

• Sexually suggestive comments, insults, or “jokes” or imagery.
  • Requests for sex or to perform sexual acts.
  • Unwelcome touching or physical contact.
  • Intrusive questions or comments about your private life or appearance.
  • Inappropriate staring or leering.
  • Sexually explicit or harassing messages (including text or social media), phone calls, emails, or images.

Sexual harassment does not have to be ongoing and can be one, single incident.

Some instances of sexual harassment can also be criminal offences, including physical or sexual assault.

Employers should have a policy for how to deal with sexual harassment in the workplace. It may involve a complaints process and an outline of how a complaint with be dealt with. Some workplaces may not have a policy and making a complaint of sexual harassment can be difficult. For example, making an internal compliant of sexual harassment may not be helpful in a small business, where the perpetrator is also the boss or the responsible for resolving complaints.

The Equal Opportunity Commission and the Australian Human Rights Commission can hear complaints about sexual harassment and victims can make claims for compensation.

The WWC Industrial Officers can give advice you further about sexual harassment in the workplace.

Random Questions from arts workers

Here are some RAQs (i.e. randomly asked questions) that we have received from people working in the arts:

Is it ok to be paid in tickets to shows, drinks, food, discounts, or other perks?

No. Additional perks are great, but these must be in addition to your minimum wages.

Can I have several jobs at the same time?

It is possible to work for different employers at the same time. However, some employers do not allow it, especially if the second job is for a competitor. They may have a policy prohibiting it. If that’s the case you should ask for permission before applying for that second job.

Is it ok to drink alcohol or take drugs at work?

No. Drinking alcohol or taking drugs at work can be characterised as gross misconduct and could result in termination of your employment, even if your supervisor or other staff are doing it and there is a culture condoning it. It is also a work health safety issue.

Is there are union for workers in the arts?

YES! The Media, Entertainments and Art Alliance (‘MEAA’) is the union that covers many workers in the arts sector. MEAA is the union for actors, entertainers, journalists and many more workers in the arts industry.

MEAA provides members with information on their workplace rights and advocacy to defend, promote and advance members’ rights at work.

MEAA membership also includes discounts plus benefits like journey insurance as well as professional development opportunities.

You can learn more about MEAA or join online here:

https://www.meaa.org/

Contact the WWC for specific information and advice about your rights and entitlements at work.

Where can I get advice?

If you are a union member, call your union.

If you are not a union member, then please feel free to call the Working Women’s

Centre on: 08 8410 6499

or using our toll free number: 1800 652 697.

You can also submit an online enquiry on our website.

https://wwcsa.org.au/contact-us/

Please be aware that we may not be in a position to respond to your enquiry within 24 hour’s, but we will advise you of the waiting period when you first telephone or email us.

Listen to the recording of our panel event ‘Working in the Arts’ featuring arts workers based on Kaurna land.

Our Panelists:
Gemma Beale
Letisha Ackland
Emma Webb

You’ll also hear from an Industrial Officer from the Working Women’s Centre about how you can protect your workplace rights in the Arts.

The Working Women’s Centre has teamed up with National Union of Students Welfare Department, (FUSA Flinders University Student Association, USASA UniSA Student Association, Adelaide University Student Representative Council, Adelaide Young Christian Workers – YCW & The Young Workers Legal Service to present:

Your Rights at Work – Free webinar training for International Students in Australia

This free webinar is designed for international students studying in Australia, providing them with skills and resources to better equip them to assert their rights in the workplace and to fight exploitation.

We recognise that many international students are working casually, often well below the minimum wage and can be at greater risk of exploitation by their employer.

We also know that as the South Australian economy opens up, there will be greater competition for jobs and employers trying to cut corners.

Our team of experts will leave you with a better understanding of the Australian workplace laws and some ideas about how to address unfair treatment in your own workplace.

• The webinar will help answer some of your questions such as:
• What are my basic workplace entitlements?
• What should I expect from my employer?
• I am being underpaid, what do I do?
• What rules does my employer have to follow? What about me?
• Where can I get more information?
• I have been working more than 20 hours a week, can I still complain?

Wage Theft in South Australia is an epidemic. The McKell Institute estimates that wage theft is costing South Australian workers $500 million a year.

The Working Women’s Centre SA recovered over $500,000 for workers in just one financial year. While this is a great achievement, it is only a fraction of what is owed to hard working South Australians. We know, more than most, that wage theft is hitting women and migrant workers the hardest.

Wage theft extends to the non-payment of base wages, penalty rates, superannuation, loadings, and the non-payment of entitlements that workers should be receiving by law. In some sectors of the economy, wage theft has transitioned from a fringe activity to a business model.

This is an issue for workers and the government. In fact, the South Australian Parliamentary Wage Theft Interim Report confirms what we already knew: wage theft is rife in South Australia and it affects the most vulnerable workers in our community.

We gave evidence to the Wage Theft Inquiry about one of our clients who was only paid $14 an hour. How can you live on $14 an hour? You can’t. It isn’t a living wage.

In response to the Interim Report, we are holding a community discussion about the prevalence of wage theft to kick start South Australia’s response to this issue.

There are big questions at hand:
• Should we follow Victoria’s lead and criminalise wage theft?
• Is our industrial system is too complex?
• How does wage theft impact on working women? And is this impact due to a common business model?
• What are trade unions doing about this issue? And how do we campaign for a living wage?

We are thrilled to host Irene Pnevmatikos MLC, Edward Cavanough from the McKell Institute and Angas Story from SA Unions to tackle those issues and more.

We acknowledge that this event will streamed from Kaurna land and we pay our respect to the traditional custodians of the land past, present, and emerging. Sovereignty was never ceded

Instructions
Do not include this first page of instructions in your letter of demand. Delete this section after reading it.

This letter sets out how to write a letter of demand for underpayment of wages, as well as annual leave or notice.

Insert details relevant to your underpayment in the highlighted sections, and delete the parts that aren’t relevant to your claim.

Send the letter to your employer via post or email and keep a record of when you sent it. The letter can be used as evidence to help your underpayment claim, as well as a claim for penalties, in the South Australian Employment Tribunal. 

This is a template and might not cover the extent of your underpayment issue. That is, this template talks about very specific breaches and in your case, there might be other breaches that you need to allege.

This letter is a guide and should not be taken as legal advice. 

[date]

[employer’s address or email]

Dear [name of owner of business]

RE: – Underpayment of wages 

I write regarding my employment with [name of business]. I have been underpaid by you as follows:

[List the different types of underpayment. For example:

1. Underpayment of wages: $XXX 
2. Underpayment of superannuation: $XXX
3. Unpaid annual leave: $XXX
4. Unpaid notice: $XXX

[Explain how you calculated these amounts. For example if you were paid at the incorrect classification under your Award:]

You did not pay me at the correct award rate. For the period of [start date] to [end date], you paid me [the rate you were paid] an hour. However I should have been paid at [classification level] of the [your Award], as my duties included [list the higher duties you performed]. The total amount owing for underpayment of wages is $XXXX. 

[Example if you were underpaid notice or annual leave]

You also did not pay my [annual leave / notice] of [X number of] weeks. The total owing to me for annual leave is $XXXX. My entitlement to [ annual leave / notice ] can be found in the National Employment Standards.

The total amount that should have been paid to me was [$XXXX your correct total payment].  You paid me [$XXXX what you were actually paid].   There is a total amount of [$XXXXX amount of underpayment] owing to me.

I request that you make the total payment of [$XXXX amount of underpayment] to me within 14 days of this letter.  

If I do not receive payment within that time, I put you on notice that I will be commencing proceedings for unpaid wages against in the South Australian Employment Tribunal (SAET) without further notice. 

If I am forced to commence proceedings against you, I will be seeking an order from the SAET that you pay pecuniary penalties for your various breaches of the civil remedy provisions of the Fair Work Act 2009. 

It is hoped that this will not be necessary, and I look forward to a quick and amicable settlement of the outstanding unpaid wages. 

Regards,

[your name]

[your contact details]

Please note that this is general information & may not be relevant to your particular matter. This should not be taken as legal advice.

What is wage theft?
Wage theft is the failure of an employer to pay a worker their wages or entitlements, such as superannuation, penalty rates, loadings or allowances under workplace laws. It impacts up to 170,000 South Australian workers and collectively costs more than $500 million a year.

Findings from “The Economic Impact of Wage Theft in South Australia” published by The McKell Institute, in March 2019.

If you feel your current or former employer has underpaid you by:

• Not paying you at the correct award rate;
• Not paying you penalty rates or the incorrect rate;
• Not paying you allowances or other loadings;
• Not paying your superannuation
• Not paying the correct notice upon termination of your employment
• Not paying the correct amount of redundancy pay
• Not paying out your long service leave or annual leave entitlements correctly
  

Then you may be able to lodge a Money Claim in the South Australian Employment Tribunal

(SAET). You may also be able to lodge a small claim in the Fair Work Division in the Federal Circuit Court.

You have six years from the date of the underpayment to make a claim.

Part 1: Figuring out what you are owed
You will need to find out the wage to which you are legally entitled. This will either be set out in a Modern Award, in your contract of employment or in an enterprise bargaining agreement. These are explained below. All employees, as a minimum, are entitled to the National Employment Standards.

The National Employment Standards set out the 10 minimum employment entitlements that must be provided to all employees, including the national minimum wage, and other entitlements such as leave, and flexible working arrangements. Casuals and permanent employees have different entitlements. Find out more on the Fair Work Ombudsman website:

https://www.fairwork.gov.au/employee-entitlements/national-employment-standards

Modern awards
Most employees are covered by an award. There are 122 modern awards in Australia. An award is a legal document that sets out the minimum pay rates and conditions of employment for an industry. Awards are not specific to your employer but rather specific to your industry/sector. The Fair Work Commission sets the conditions and rates found in the modern awards. The Fair Work Commission reviews all 122 awards every 4 years. Different awards apply for different industries and job types.

You can find your award and your correct pay rate on the Fair Work Ombudsman site:

https://calculate.fairwork.gov.au/findyouraward

If you are unsure if the award applies to you, check the coverage clause (usually clause 4)

and the job classifications (usually in the pay clause or a schedule) to read more about the

types and levels of jobs it covers.

All awards are available in full on the Fair Work Commission website.

Enterprise Agreements
Enterprise bargaining agreements (EBA), and other registered agreements such as individual flexibility arrangements, are negotiated between employees, employers and most often unions. They set out minimum employment conditions for employees of an employer. The law says that an EBA must leave an employee better off overall when compared to the relevant award. EBAs are voted on by the workforce and there should be a copy of your EBA made available to you, if one applies.

If your workplace has an EBA, you should check it first to find the wage to which you are entitled. Some agreements state that the award doesn’t apply, and provide better entitlements than the award. The base pay rate in the agreement can’t be less than the base pay rate in the award and the National Employment Standards still apply.

Other agreements may say that the award applies, where the agreement does not include detail about your entitlements. In this case, refer to your award.

Find your agreement on the Fair Work Commission site. https://www.fwc.gov.au/search/document/agreement

How to calculate your underpayment
Examine your payslips or other records (like rosters, bank statements, cash receipts) to figure out how much you were paid, and how much you should have been paid for the hours you worked under the award or your workplace’s registered agreement. The difference in these two figures is the amount you can claim as an underpayment.

You may find it helpful to use an Excel spreadsheet or table to calculate the underpayment per pay period. If you do not have full records of your hours worked, you can use a reasonable estimate.

Remember that you can claim other unpaid entitlements, such as superannuation, annual leave, long service leave, and notice. If you are claiming unpaid wages, you can add superannuation of 10.5% (or the amount listed in your registered agreement) of the underpayment amount to your claim.

Your underpayment is calculated as follows: (legal entitlement) minus (actual wages paid) = (underpayment figure).

Case Study 

Phuong’s underpayment
*This case study is fictional, and is not based on a real person or  business.*

Phuong is a permanent part-time employee in a restaurant. She works 20 hours a week. She is paid $15 per hour.

Phuong’s duties include taking reservations, mixing and serving alcoholic drinks, waiting on tables and helping to supervise junior staff. She examines the Restaurant Industry Award 2010, and realises that her duties are classified at “Level 3 – food and beverage attendant”. Under the Award, she should have been paid at $26.93 per hour during the day, $32.31 per hour on Saturdays and $37.70 per hour on Sundays and public holidays.

She goes through her payslips and her time sheets and calculates that over the period of her employment, she was paid $15,600. However, if she had been paid at the correct award rates, she should have been paid $26,603.

Phuong’s underpayment of wages is $26,600 (legal entitlement) minus $15,600 (actual wages paid) = $11,000 (underpayment figure).

She adds an additional 10.5% ($1155) of this amount to her claim as unpaid superannuation.

Other entitlements
When Phuong was fired, she was not paid out her annual leave or given notice. She is owed 3 week’s annual leave and should have been paid one week’s notice. She adds an amount for annual leave ($1534) plus notice ($511.60) to her claim.

Total underpayment Phuong adds up these amounts to calculate the total amount she can claim as an underpayment.

Her total underpayment is:
Unpaid wages: $11,000
Unpaid superannuation: $1155
Unpaid annual leave: $1534
Unpaid notice: $511.60

TOTAL: $14200.60

Part 2: Negotiating with your employer
If you have not already raised the underpayment with your employer, you should do so. If your employer is cooperative, this is the easiest way to rectify the underpayment.

If your employer refuses to pay you what is owed, you should formally request that the money be paid in writing. This is called a letter of demand. By putting the employer on notice that you intend to pursue the underpayment through the relevant tribunal (SAET) or court (Federal Circuit Court) they don’t pay, they may be liable to pay additional penalties if your claim does not settle.

An example letter of demand is set out below. This letter of demand threatens a claim in the SAET. List the amounts you are owed and explain why you think you are owed these amounts, with reference to the correct rate. You can attach your calculations to show how you arrived at the underpayment figure.

Letter example

Dear Mr Boss,

I write regarding my employment with your business. I have been underpaid by you as follows:

1. Underpayment of wages: $11,000
2. Underpayment of superannuation: $1155
3. Unpaid annual leave: $1534
4. Unpaid notice: $511.60

You did not pay me at the correct award rate. For the period of 1 July 2019 to 30 June 2020, you paid me $15 an hour. However I should have been paid at Level 3 of the Restaurant Industry Award 2010, as my duties included working in the bar serving alcohol, and helping to train and supervise junior staff. The total amount owing for underpayment of wages is $11,000.

When you dismissed me on 30 June 2020, you did not pay me notice. You owe me one weeks’ notice which is $511.60. My entitlement to notice can be found in the National Employment Standards.

You also did not pay out my annual leave of 3 weeks. The total owing to me for annual leave is $1534. My entitlement to annual leave can be found in the National Employment Standards. The total amount that should have been paid to me was $29,690.

You paid me $15,600. There is a total amount of $14200.60 owing to me. I request that you make the total payment of $14,200.60 to me within 14 days of this letter.

If I do not receive payment within that time, I put you on notice that I will be commencing proceedings for unpaid wages against in the South Australian Employment Tribunal (SAET) without further notice.

If I am forced to commence proceedings against you, I will be seeking an order from the SAET that you pay pecuniary penalties for your various breaches of the civil remedy provisions of the Fair Work Act.

It is hoped that this will not be necessary, and I look forward to a quick and amicable settlement of the outstanding unpaid wages.

Regards,

Phuong

Part 3: Lodging a Money Claim
If the employer does not pay by the date set out in the letter, you should lodge a claim.

There are two places which can deal with an employee’s claim to underpayment of wages.

The South Australian Employment Tribunal (SAET) is South Australia’s forum for resolving underpayment of wages, and other work-related issues.

You can lodge a Money Claim for your underpayment. See their website for more information.

https://www.saet.sa.gov.au/industrial-and-employment/money-claims-monetary-claims/

In some circumstances, you may instead wish to lodge a small claim in the Federal Circuit Court. The Federal Circuit Court also has the power to deal with these disputes. If your claim is under $20,000, and you wish to claim money against the director personally as well as the business, you can consider lodging a small claim in the Fair Work Division of the Federal Circuit Court.

Seek advice from us or a lawyer if you are considering taking this option.

READ THE FULL ARTICLE HERE

The social services organisation claimed the women earned between $10 and $12 an hour as casual employees when the legal minimum rate in a restaurant is $25.51.

“International students are often the victims of wage theft in the workplace,” the WWCSA said.

READ THE FULL ARTICLE HERE

READ THE FULL ARTICLE HERE

This article was published by ABC News 4th Feb 2021.

Read the full article on the ABC’s website here

Protesters have rallied outside of a cafe where a young woman was allegedly assaulted last week.

Footage of the incident, at Fun Tea in Adelaide’s CBD, went viral on social media and has sparked a conversation about alleged wage theft among the international student community.

It showed a verbal dispute between a man and a woman who makes claims about wage theft.

The man can be heard denying the claims.

Today, protesters claimed wage theft was a problem in businesses in Adelaide’s Chinatown district.

Jackie Chen, from the SA Labour Info Hub, said many people working within the district were paid less than $15 an hour, and some as low as $5 an hour.

“Especially with the background of workers, international students, they are not fluent in English and they don’t know how to find support,” he said.

“We urge the Australian Government to look into these issues.

“We must sort this out, it’s a disaster. It’s been going on for decades.”

He has organised another rally for Saturday to be held in Chinatown.

READ THE FULL ARTICLE HERE

The Working Women’s Centre SA recovered over $500,000 for workers in just one financial year. While this is a great achievement, it is only a fraction of what is owed to hard working South Australians. We know, more than most, that wage theft is hitting women and migrant workers the hardest.

The Working Women’s Centre has teamed up with National Union of Students Welfare Department, (FUSA Flinders University Student Association, USASA UniSA Student Association, Adelaide University Student Representative Council, Adelaide Young Christian Workers – YCW & The Young Workers Legal Service to present this webinar.

We recognise that many international students are working casually, often well below the minimum wage and can be at greater risk of exploitation by their employer.

The webinar will help answer some of your questions such as:

 What are my basic workplace entitlements?

 What should I expect from my employer?

 I am being underpaid, what do I do?

 What rules does my employer have to follow? What about me?

 Where can I get more information?

 I have been working more than 20 hours a week, can I still complain?

The Working Women’s Centre (WWC) was established by the SA Trades Union Movement in 1979, in order to provide specialised assistance to vulnerable women in the workplace. Over the years the WWC has fought hard, through being de-funded, funding cuts and re-funded, to maintain its role in providing vulnerable women and workers assistance for 40 years.

The Victorian Productivity Commission says 13% of people have done ‘gig work’ in the last 12 months.