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This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not 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:
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.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Your employer may request you attend a disciplinary meeting to discuss allegations of misconduct or performance concerns. This is a reasonable and lawful directive; however, your employer needs to ensure they follow procedural fairness.
The toolkit below may assist you in navigating the process. If you have been called to attend a disciplinary meeting, you should take the following steps immediately:
Remember, your employer should provide you with at least 24 hours notice of a disciplinary meeting.
I have been stood down with pay, what does this mean & how long does this last?Your employer may stand you down with pay when they are investigating allegations concerning your performance or conduct. This does not mean your employer has decided to terminate your employment. Some workplaces have policies where they remove a person from the workplace while investigating allegations in order to prevent interference in the process and to minimise stress.
The stand-down period typically lasts until the investigation is finalised, and usually finishes when you are delivered with an outcome. It is important that you remain available to attend a disciplinary meeting during the stand-down period.
Can I reschedule a meeting?
It is not unreasonable to request a meeting be rescheduled if it falls on your rostered day off, outside of your working hours or if you are unwell and unable to attend. If you require more time to source a support person, this must be communicated as the reason why you are requesting to reschedule the meeting.
An employer may not agree to delay the meeting if they have already provided you with enough notice, or the allegations are very serious. If you are unwell and you cannot attend the disciplinary meeting, it is important that you obtain medical certificates and provide them to your employer.
Case Study:
Sarah works the night shift from 5:00pm to 5:00am. She is provided with a letter of allegation before her shift at 5:00pm, and requested to attend a meeting at 4:30pm the next day. Sarah is unable to contact a support person during her shift, and when she arrives home, must balance sleeping with calling a friend. Her friend is also unable to take time off from work on such short notice. Given Sarah’s circumstances, it would be unreasonable if her employer were to deny a request to postpone the meeting so that she can organise a support person.
What if my boss calls me in to talk but denies it is a disciplinary meeting?
Sometimes, employers call workers in for meetings but do not expressly use terms such as ‘disciplinary meeting’ or ‘allegations’. A useful way to find out whether a meeting is disciplinary in nature is to ask whether the meeting will have a disciplinary outcome. If your employer says it might, suggests they will let the Human Resources (sometimes called People and Culture) department decide or cannot give you a clear answer – there is a good chance you have been called into a disciplinary meeting. It is a good idea to treat it as such and take all the necessary precautions.
There is a list of allegations – How do I deal with them?
A disciplinary meeting is often held because allegations of misconduct have been raised with management. Your employer should provide you with clear allegations, preferably in writing to avoid misinterpretation. If the allegations are vague, you are entitled to request specific details such as the date and time of the alleged conduct, the nature of the conduct as well as which policies you are alleged to have breached. Generally, it is a good idea to ask for the allegations to be put in writing. This is best practice, but it will depend on the circumstances whether your employer will put the allegations in writing.
Case Study
Lin’s manager approaches her at work on Monday morning and asks her come into the office for a short chat. Lin finds out her manager is trying to hold a disciplinary meeting without any notice. Lin advises she will hear the allegations however will need sufficient notice to be able to respond and organise a support person. Lin’s manager schedules a meeting for the next day and provides her with the allegations in writing.
What happens in a disciplinary meeting?
Usually, your employer will read out the allegations and provide any additional evidence to you. They will then ask that you provide a response to the allegations. It is important that you hear all of the allegations before you respond.
What can my support person do?
Your support person can take notes and discuss the allegations privately with you. If you become overwhelmed and have trouble responding, a support person can clarify your responses for you. A support person’s role does not extend to answering the questions on your behalf.
You are entitled to respond to the allegations raised and your employer must consider your responses when determining the outcome of the meeting.
When considering your responses to allegations, ensure you provide clear answers and only address the allegations raised. You can request your employer view CCTV footage if you believe it supports your responses. If your employer has mentioned reviewing CCTV footage, you can also request to view this before responding to allegations.
Some employers prefer written responses to allegations. Similarly, to the above, make sure you respond clearly and concisely.
It is also good to highlight a record of good behaviour or raise any mitigating circumstances which may have led to the incident in question.
It is important to respond honestly to allegations. It may be unreasonable for your employer to terminate you if you were late once, however they can dismiss you for serious and wilful misconduct if you behave dishonestly and lie.
You can request a short break in the meeting if you need to discuss the allegations privately with your support person, or if you become overwhelmed.
If you have grievances to raise about workloads or other matters, it is best to address these separately and independent to this process.
What if my boss raises other matters & allegations that I didn’t know about?
Your boss should stick to the allegations in the letter sent to you, or the allegations listed at the beginning of the meeting. If they raise anything else, you can politely flag that this was not brought to your attention and you will be unable to respond without further details.
Can my boss ask me vague questions?
Generally, your boss should ask specific questions instead of vague questions with open-ended answers.
Case Study
Priya is at a disciplinary meeting with her union support person, and knows only that the allegations concern a breach of company policy on acceptable standards of behaviour. Priya’s boss asks her to ‘take him through what happened on Tuesday’ and asks what she did at work that day. This is an unreasonable question because it could risk Priya further incriminating herself, and does not enable her to address any specific allegation. Priya’s support person reminds her boss that the question is very open-ended and that she is entitled to know the allegations before offering any response. Priya’s boss reconsiders his approach and provides her with the allegation of speaking rudely to a staff member, and asks her whether she interacted with her during her shift.
What will the outcome of the meeting be? Will I be fired?
A common myth is the ‘three strikes and you’re out!’ principle. There is no requirement for an employer to give three warnings before dismissing a worker, and similarly, there is nothing preventing an employer from issuing more than three warnings.
Each employer has a different approach to determining disciplinary outcomes. It is best practice for an employer to have a clearly defined disciplinary process to ensure both the employer and employee are aware of the processes in place when issues in the workplace emerge.
Employers may issue informal counselling for minor issues, and this outcome is similar to a verbal warning. Other employers operate on a written warning basis. You can dispute a written warning by writing to your employer, however this does not compel them to remove the warning from your file.
I have been asked to “show cause” – what is this?
Your employer may issue you with a show cause letter following a disciplinary meeting. This is common where the allegations are serious enough to warrant summary dismissal.
A show cause letter requires you to provide compelling reasons as to why your employment should not be terminated. This is usually provided once an investigation has been carried out and when you have provided a response to the allegations. This is a serious step and requires consideration when responding. It is important to draw on a record of good work performance and as well as any mitigating circumstances the employer should consider when determining the fate of your employment.
A show cause opportunity is an important step for the employer to take prior to terminating an employee, and if you have been refused an opportunity to show cause, it is important you contact the Working Women’s Centre as soon as possible.
I have been told that I will be placed on a performance improvement plan – what is it and what do I do?
If your employer has concerns about your performance, they may choose to issue you with a Performance Improvement Plan (PIP). This is a structured plan which aims at providing you with the support and training needed to successfully do your job, and should have clear performance metrics in place. For example, it would be unreasonable if one of the outcomes was to ‘be friendlier to colleagues’ because there is no tangible way to measure this. It would be reasonable if your employer required you to achieve a particular target which can be measured and examined.
You can request amendments to the plan in consultation with your employer and request further training if needed.
It is also important that your PIP includes catch-ups with your boss or manager – these should be a regular opportunity to discuss progress and any additional support you may need.
I don’t agree with the PIP – can I just ignore it?
It is very important that you follow your PIP – even if you disagree with the content. You can dispute your plan and work with your employer to change it to better reflect working conditions. The important thing is that you comply with the requirements.
If you have been asked to respond to a letter of allegations, refer to our Template for how to respond to a letter of allegations Fact Sheet.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
This is a strict time frame. You should ensure that you make the application within 21 days (that is 21 calendar days). The first day of the 21 days, is the day after your dismissal.
We are committed to providing advice that you can rely on however the information in this toolkit is general in nature. If you’re unsure about how it applies to your situation you can call your union.
To find out more about unions, please visit www.actu.org.au
If you are not a union member, then call us on 08 8410 6499.
You have been unfairly dismissed if:
You will not be dismissed if you were engaged by a contract of employment for a specific time period, or for a specific task or season.
For example, if you were employed on a 12 month contract and at the end of this 12 month contract, you are not offered a new contract, that decision will not constitute a dismissal.
Courtesy of the Fair Work Ombudsman.
In deciding whether a dismissal was unfair, the Fair Work Commission (FWC) will consider specific criteria for the harshness of the dismissal. The FWC will take into account:
If you are employed by a small business, then your dismissal will be considered with respect to the Small Business Code.
Definition: A small business is defined as an employer, who employs less than 15 employees.
If you have been dismissed by a Small Business then the Fair Dismissal Code applies. The Code can be found here:
https://www.fwc.gov.au/about-us/legislation-regulations/small-business-fairdismissal-code
You will not be eligible to lodge an unfair dismissal case if you were dismissed because of a genuine redundancy.
Redundancy can happen when an employer either:
The test for a genuine redundancy is:
If your redundancy does not fit the above criteria, then it is likely you will have a case for unfair dismissal on the basis that the redundancy is not a genuine one.
Restructure – Reduction in the number of positions:
Julie is working as a medical receptionist in a busy doctor’s surgery. Julie works with 4 other medical receptionists. Julie is the only medical receptionist to be made redundant. Julie’s duties are distributed among the remaining medical receptionists. This is very likely to be a genuine redundancy.
Downturn in Business
Lee Lin, is a print journalist and works for a major newspaper in Adelaide, South Australia. Over the last few years, there has been a significant reduction in sales of print newspapers and the board has decided to cut the newspaper from 40 pages to 30 pages. As a result, Lee Lin and another journalist have been made redundant. This is very likely to be a genuine redundancy as Lee Lin’s role is no longer required due to the downturn in business.
Reasonable redeployment & a lack of consultation.
Priya is working as a graphic designed for the state government. The state government decides to outsource of all of its web content to a private graphic design company. Priya is told that her job no longer exists with the state government and her job has been made redundant. Priya was never consulted about this change. It is likely that this will not amount to a genuine redundancy and Priya could lodge and unfair dismissal application.
Sham Redundancies:
Sam has been working with an electrical company as an electrician for 9 months. At the Christmas party, Sam’s boss tries to kiss them. Sam refuses the advance and leaves the party straight away. Sam was due to return to work after the holiday close down period but the next day, receives an email notifying them of a redundancy. Sam knew that the boss has work lined up for the next year and believes that the redundancy was due to incident at the Christmas party. If there has been no downturn in work and the reason for the dismissal was Sam rejected the boss’s advances, the redundancy will not amount to a genuine redundancy and Sam will be eligible to lodge an unfair dismissal application.
*If you experience sexual harassment in the workplace, contact us for further advice.
This is a strict time frame. You should ensure that you make the application within 21 days (that is 21 calendar days). The first day of the 21 days, is the day after your dismissal.
There may be times where you are notified of your dismissal, but your final day of employment is not for some time (say 4 weeks later). In this case, the dismissal will take effect on your last day of employment.
Example
If an employee is given 4 weeks’ notice that they will be dismissed, and they work through the 4 week period – then the date that the dismissal takes effect will generally be at the end of that 4 week notice period. HOWEVER, if an employee receives 4 weeks’ pay in advance in lieu (instead) of working and is NOT required to work through the 4 week notice period – then the date that the dismissal takes effect will generally be the last day worked unless the employer specifies a different date of dismissal.
Example: Courtesy of the Fair Work Commission.
Length of service The law provides that you need to have completed a minimum period of service to be eligible to make an unfair dismissal application.
If you have not been employed for at least the minimum period, you will not be eligible to make an unfair dismissal application. Time period Can I lodge an Unfair Dismissal Application?
If you are still confused as to whether you are eligible to lodge an unfair dismissal, please take the Fair Work Ombudsman Quiz.
https://www.fwc.gov.au/termination-of-employment/unfair-dismissal/eligibility
You will need to complete a Form 2 – Application for Unfair Dismissal.
This can be found on the FWC website. At this link:
https://www.fwc.gov.au/content/rules-form/unfair-dismissal-application
This form will need to be emailed to the FWC.
You can find directions in the Form 2 about how to lodge this application. You can also complete the form using the online lodgment service using this link:
Once you have completed the Form 2 you should email it to the FWC. Details for the FWC can be found here:
https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/commission-offices/south-australia
You should receive a confirmation email from the FWC saying they have received your Application. In a few days you should receive a listing advice from the FWC that will give you a time and date for a conciliation conference. It is likely this will be in 3-4 weeks time.
A filing fee applies for an Unfair Dismissal application. Check the current fee on the FWC website.
If you cannot afford to pay the fee, you will need to complete Form 80 – Application for Waiver of Filing Fee. You can find more details in the link or by contacting the Fair Work Commission.
The Fair Work Commission (FWC) will hold a conciliation conference between you and the employer to help both of you come to an agreement. You can use the information below to help prepare for the conciliation conference.
On the date of the conciliation conference, a conciliator will call you from the FWC. The conciliator will be an impartial third party. The employer will be on the phone as well.
https://www.fwc.gov.au/termination-employment/unfair-dismissal/about-conciliation .
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Every day we receive phones calls from workers who have resigned from their employment because they genuinely could not face another day. We completely understand this situation; however, when a worker resigns from their employment, it can significantly impact on their ability to address the unfair, discriminatory behaviour that is causing the workplace issues.
There may be ways for you to address your issues internally and we can provide with you advice about this.
There also may be ways for you to address the unfair treatment through an external process, but there are occasions where resignation can bar you pursuing a remedy for the unfair treatment. That is, you may have an unfair dismissal, discrimination, workplace bullying or workers compensation claim. If you resign, it might be more challenging to pursue these types of claims.
If you are unable to attend your workplace, you might consider seeing your General Practitioner and discuss taking some time off work. It is generally important to obtain a medical certificate from your doctor certifying that you are unfit for work.
The National Employment Standards provide that full-time employees have ten days of Personal Leave each calendar year (pro rata for part-time workers). If you have run out of personal leave, then you might consider applying to access your annual leave or long service leave. You might also consider using unpaid leave if you do not have any personal leave days left. Generally, a worker will need to apply to access unpaid leave, annual leave or long service leave. An application can be done formally (through a proscribed workplace form) or be a simple email making the request.
You do not need to apply for personal leave.
In most cases, it is better to take some time away from the workplace than it is to resign rashly.
There is a practice in many workplaces where a manager or human resources representative will advise and employee that they can either resign or face dismissal.
If you resign, you may be prevented from making an unfair dismissal claim.
If this is happening to you, ask your employer for some time to consider the ultimatum and get some advice immediately. In most cases, this is a reasonable request, and if reasonable, your employer should agree. In some cases, it might be better that you resign. In other cases, your employer might be trying to avoid any consequences for their unfair treatment of you. It is very important that you seek advice before making this decision.
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.
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.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
You have the right to be treated with respect and to be protected from stress and trauma at work.
Your job is one of the most important parts of your life. If you are not respected and protected at work it can make you unwell. You might notice feeling tired, withdrawn, easily upset, less interested in things you normally enjoy, nauseous, irritable, panicky, short of breath, or teary. You might find new difficulties in your personal relationships, or experience difficulty sleeping, a racing heart, a lower appetite, headaches, or stomach pain. Sometimes these feelings add up to what is called a psychological illness – like depression, anxiety, adjustment disorder, or post-traumatic stress disorder.
These are all very normal and common reactions to feeling disrespected or threatened at work. If you feel this way, you are not alone. Where can I get help?
Find a supportive General Practitioner (GP) if you do not already have one already and make them your regular GP. You should feel comfortable with and believed by your doctor. If you don’t, try seeing someone else.
You can talk to a GP in a language other than English. All GPs have access to phone based interpreters and some GPs consult in languages other than English. If you’d prefer to see a GP who speaks a language other than English, ask family and friends if they know of a doctor who consults in your preferred language or search online to find someone.
Make an appointment with your GP and tell them about your issue, keeping in mind that doctors are very used to talking with patients about stress, trauma, and problems at work. Talking with your GP can help you get better, and might also help with a workers’ compensation claim in future.
When you see a GP, ask about getting a mental health plan. As well as providing a pathway to better mental health, a plan can offer you access to cheaper psychology appointments.
Speak with a psychologist or counsellor. Your GP can help you find someone suitable or you can search online to find someone.
Find out if you have access to free counselling or medical treatment through an Employee Assistance Programme (EAP) at work and use it if you do. Information about and EAP might be posted on a notice board at work, in documents you were given when you started work. You can also ask a colleague, your manager, or Human Resources.
If your issue involves sexual harassment, abuse, or domestic or family violence, you can call 1800RESPECT (1800 737 732) any time to speak with an experienced trauma counsellor.
Join your union if you are not a member already. There is a union for every worker in Australia. Like insurers, unions may not be able to help with a pre-existing issue when you join, so it’s important to be in the union before you need help.
A union is an organisation made up of workers in your line of work. Unions are funded by workers, who pay membership fees, and they help workers to fight for and protect their work rights.
You can find out what union covers you by calling Australian Unions on 1300 486 466.
Reach out to friends, family, and colleagues. Tell trusted people about your issue and ask for their support. Be specific about what you need – like help caring for children while you attend counselling, or someone to take a walk with once a week.
You can also access a caring voice over the phone between 5pm and 11:30pm any day by calling the Lived Experience Telephone Support Service (LETSS) on 1800 013 755.
Take sick leave if you can and use the time to recuperate.
Make plans to take annual leave and allow yourself a total break from work.
Take your work breaks and leave the workplace during lunch if you can.
Try to minimise your access to work emails and phone calls after hours. Keep work screens out of the room you sleep in.
Consider whether or not any flexible work arrangements could help and might be agreeable to your employer. Changes might include a temporary reduction in hours, agreement to work some hours from home, or different start and finish times. Ask your union for help in seeking changes like these.
Apply for new jobs and ask to catch up with any friends or contacts who may be able to connect you with new work opportunities.
Check out the resources about mental health and work available at headsup.org.au. Use the exercise that deals with helpful and unhelpful thoughts whenever you feel confronted by something that happens at work.
Try some relaxation exercises. Breathing exercises, muscle relaxation, guided visualisation, and mindfulness meditation can help. There are many free phone apps that can help you to try relaxation exercises for the first time, as well as resources at beyondblue.org.au.
Take time every day to do one or more pleasurable things like going for a walk, taking a bath, reading in the sun, watching you favourite TV show, sitting under a tree, or calling a friend to talk.
If you have an illness that is caused or contributed to by your work, you can claim lost wages, treatment costs, and in some cases, lump sum compensation. This is called a workers’ compensation claim. In South Australia, workers’ compensation claims are generally dealt with by Return to Work SA.
You can make a claim whether you are a part-time, full-time, casual, or labour hire worker. Sometimes you can even make a claim if you are a contractor or self-employed.
We encourage you to strongly consider making a claim about a work injury if it has already caused you to take sick leave, or if you feel your only option is to leave your workplace.
You should also consider whether or not you have access to income protection through, for example, your employer or superannuation fund, or if you have access to Centrelink payments.
Your employer will know about and see your claim. If you have time off work or are noticeably unwell, your colleagues will know something is wrong but they will only know you have made a claim if you or your employer tells them. You can ask your employer to honour your privacy by not telling colleagues about your claim.
Future employers will only know about your claim if you or your current employer tell them about it; there is no publicly available register of past claims. In Australia is unlawful to refuse to give a person a job because they have made a workers’ compensation claim in the past.
Your claim might be rejected. If this happens, you can challenge the decision. Your union or one of the services listed in this factsheet can help you with this. You can also talk with a lawyer.
When you make a claim, Return to Work SA will most likely ask for more information about your illness and its cause. Providing this information can be difficult and for some people, it will also bring up past difficulties or trauma.
If you want to speak with someone about a personal crisis or thoughts of suicide, call Lifeline on 13 11 14 any time of day.
If you need an interpreter, call TIS National on 131 450 (local charge applies) and ask to talk with Lifeline on 13 11 14.
The Mental Health Triage Service 13 14 65 can also help with mental health emergencies, any time.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
These factsheets have been designed & translated to help women better understand the worker’s compensation scheme and navigate the psychological work injury claims process.
Find a claim form here: https://www.rtwsa.com/media/documents/claim-form.pdf
Return to Work SA is an Insurer and Gallagher Bassett and Employers Mutual are claims agents. Your claims manager works for them.
Only you and your representative work for you.
Keep an up to date work capacity certificate
Keep seeing your doctor regularly to update your certification
Get advice before signing anything
Respond to reasonable requests
If you’re not sure if a request is reasonable, ask for it in writing by email and seek advice.
Communicate how it suits you
You have a right to an interpreter if you need one. You can also ask to communicate with your claims manager by email if you find speaking by phone stressful or to be contacted only via your representative. You have a right to refuse to be recorded.
Choose your doctor
You have a right to see your own GP or other doctors for treatment. Don’t agree to have your employer attend medical appointments or speak with your treating doctor. You may be asked to see an unfamiliar doctor for assessment but can seek a second opinion if you disagree with them. You have a right to receive a copy of any medical reports made about you.
Prioritise self-care
The workers compensation claims process is stressful. Care for yourself by seeking counseling, support from family and friends. And taking time to do things you normally find enjoyable.
Prepare for claim rejection
Most stress claims are rejected in the first instance. Seek advice when you receive your rejection as the decision can be reviewed.
Speed up your claim
The insurer will attempt to make a decision within 10 days however complex claims can take longer. If you are not receiving interim payments and you are unhappy with the delay, seek advice about expediting their decision.
Helpful services
The Working Women’s Centre SA
Young Worker’s Legal Centre
Your Union
There is a union for every worker in Australia. Unions can help you with a workers compensation claim and in many cases, offer you access to a workers compensation lawyer.
Call unions Australia on 1300 486 466 to find your union if you’re not a member already.
