Late last year, a survey conducted by The Migrant Workers Centre found that 65% of temporary visa holders surveyed had experienced wage theft, a rate more than three times higher than that of local workers. So-called WAGE THEFT can take many forms, including wages below the legal minimum, non-payment of overtime or various entitled allowances, workplace exploitation of all kinds, non-payment of superannuation, and being forced to accept cash-in-hand payments only, among others.

The industries where it most commonly occurs are retail, fast food, hair and beauty, and hospitality, which are also the main sectors that employ temporary visa holders.

Some respondents said they could only hope for fair and equal treatment once they obtained PR, yet the journey to permanent residency is far from easy.

Temporary visa holders are also protected

Even if you are not a permanent resident or citizen, you are still protected by law when working in Australia. If a dispute arises with your employer over pay and they threaten you with your visa, the Fair Work Ombudsman and the Department of Home Affairs have reached an Assurance Protocol: even if a temporary visa holder has breached their visa conditions, they do not need to worry about having their visa cancelled after seeking help from the FWO.

So if you encounter any of the following situations at work, you can lodge a complaint with the FWO:

– Wage disputes

– Unfair dismissal, disputes over leave and working hours, and issues with employment conditions

– Issues with vaccinations, and arrangements for work and leave after a positive diagnosis

– Workplace harassment, discrimination, and bullying

For disputes involving tax and superannuation, you can complain to or seek advice from the Australian Taxation Office (ATO).

Communicate with your employer on a clear, factual basis

First, confirm the wage arrangement that you and your employer have agreed on.

Next, go to the FWO’s Pay and Conditions Tool and look up the legal minimum wage that applies to your situation, at the following URL:

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

Then estimate how much you have been underpaid. At this stage, it is advisable to gather evidence such as working hours and records of each pay run.

Before negotiating with your employer, you may wish to obtain relevant legal advice.

Next, arrange a time to discuss the matter with your employer.

What if my employer believes the amount of unpaid wages I have calculated is incorrect?

The employer on their own, or together with the employee, can contact the FWO for advice.

Once you and the employer have reached an agreement on the amount and other details, it is best to keep written records and documentation. This is particularly important when the amount involved is large and cannot be paid in a single instalment — a written agreement is recommended.

Tougher penalties for employers who break the law

The long “dark history” of temporary visa holders being exploited and treated unfairly has prompted many organisations to call for reforms to the visa system, particularly to the employer sponsorship regime, to provide visa holders with stronger support.

On the legislative front, penalties on employers have also been strengthened.

Victoria formally brought its wage theft laws into effect on 1 July 2021.

The provisions that have attracted the most attention make deliberate employer conduct such as underpayment of wages a criminal offence, with individuals facing up to 10 years’ imprisonment and fines of nearly AUD 200,000; for companies, fines can reach nearly AUD 1 million.

Conduct that may constitute an offence also includes unreasonably withholding an employee’s wages or other entitlements.

The Wage Inspectorate of Victoria was established accordingly.

After receiving a report, the Inspectorate will investigate and provide general advice on the wage theft laws. Note that it only accepts matters involving Victorian employers or cases that occurred in Victoria.

Website of the Wage Inspectorate of Victoria:

www.wageinspectorate.vic.gov.au

Phone: 1800 287 287

Queensland has also made wage theft a criminal offence, with offenders facing up to 10 years’ imprisonment.

New South Wales also passed stricter laws last year to crack down on companies that evade their payroll tax obligations in wage theft cases.