An employer has failed to pay an Adelaide woman super for months and she’s worried they’ll go out of business. Here’s what she should do.
An employer has failed to pay an Adelaide woman super for months and she’s worried they’ll go out of business. Here’s what she should do.

Furious Aussies caugh up in a wage rip-off

Welcome to Sisters In Law, news.com.au's weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to not being paid super.

QUESTION: My employer hasn't paid me any super contributions for months. Most weeks my wage is being deposited into my bank account many days late and they've asked us to stop doing overtime. I've seen the decline in sales since COVID hit. I'm not stupid - I've accepted I could be out of a job soon. But I'm worried about the business going under and them owing me money. Is there anything I should be doing now to protect myself? - Sally, Adelaide

ANSWER:

1. Speak to your employer

Your employer may have not realised that your superannuation had stopped being paid and will rectify the situation.

Keep a record of any conversations and correspondence with your employer in case you're required to take the matter further.

2. Lodge a complaint with the Australian Taxation Office (ATO)

If speaking with your employer doesn't work, the next step is contacting the ATO who can order your employer to make retrospective payments for you.

If the ATO takes this action, and your employer still refuses to pay, the documents from the tax office can be helpful evidence to support any future legal proceedings.

3. Speak to a lawyer

If your approaches to your employer and the ATO don't address the situation, then you should speak to a lawyer who can pursue these missed contributions for you.

If your employer does cease trading due to financial issues then it's still worthwhile lodging a complaint to the ATO and seeking legal advice.

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There are a few offers available if you think your employer is not paying you super.
There are a few offers available if you think your employer is not paying you super.

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If your employer does "go under" or ceases trading due to bankruptcy or insolvency, then you can seek help through the Australian Government's Fair Entitlements Guarantee.

This guarantee can help you get your unpaid entitlements, including:

• Up to 13 weeks of unpaid wages (capped at a maximum of approximately $2,400 per week)

• Annual leave and long service leave

• Redundancy pay of up to 4 weeks per full year of service

• Payment in lieu of notice of termination, capped at a maximum of five weeks

If your employer simply closes the business, or abandons it without placing it into liquidation then the Australian Securities and Investments Commission (ASIC) can step in and wind up the abandoned business so you can get help through the Fair Entitlements Guarantee.

For ASIC to step in, the business must be registered with them and usually this means the legal name of the business will end with 'proprietary limited' or 'Pty Ltd'.

If you're concerned that your employer isn't paying you correctly, such as not paying you the minimum wage or not paying your penalty rates, then you have rights here too.

You should:

• Check your pay slips (your employer is obliged to provide these to you)

• Check your employment contract

• Check the Award that covers you at www.fairwork.gov.au

If after checking the above it does seem like you're not being paid correctly, then take the following steps:

1. Raise your concerns with your employer, and keep a written record

2. Write a letter of demand to your employer, setting out the amount you are owed, how you calculated that and a time frame for them to pay you

3. Complain to the Fair Work Ombudsman if your employer doesn't rectify the issue

Strict time limits apply, so you should seek assistance quickly.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email stories@news.com.au

Get more from Alison and Jillian on their Facebook page

 

Originally published as Furious Aussie's wage rip off



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