Dear Lifehacker, I am a software developer from India, working and studying in Sydney since 2015. I've run into a situation where my ex-employer refuses to pay my final paycheck and I want to know if I could get my dues cleared up quickly? I had been working for my Australian employer in his Indian firm for 1.5 years (I have all the necessary documents and salary slips to prove that). Last year, I decided to come to Sydney for higher education which is where the trouble started.
Shackled to laptop image via Shutterstock
My employer suggested that I work with him directly in Sydney, to which I agreed. He promised me that he'd make a new contract that would be valid in Australia, but until then he'd pay me via cash or do a direct bank transfer. Howeever, even after working for more than eight months with him in Australia I never got the new contract, and the worse part was that I was forced to work for more than 50-60 hours a week and was paid less than $5 per hour. Saddened and hurt, I decided to quit my job. The day I quit my employer owed me 1.5 months of salary. He also took away the laptop and the mobile phone that I was provided but didn't clear my dues. He now refuses to respond or even pick up my phone. It's been 2 months since I quit my job and I really need to get my money back. Please guide me. Thanks, Jordan
If your story is factual, your employer is about to enter a world of hurt. One thing Australian workplace laws are very strict on is employee exploitation; especially when it involves vulnerable overseas workers.
Just this week, the manager of a chain of Sydney-based sandwich shops was summoned to court for underpaying 16 Korean workers and falsifying records. In addition to paying back what is owed, the business will likely be slugged with hundreds of thousands of dollars in penalties.
We're going to assume that you hold a Temporary Work (Skilled) visa, in which case your employer has the following obligations under migration law, as stipulated on the Australian Department Of Immigration and Border Protection website:
Your sponsor must:
- provide you with equivalent terms and conditions of employment to those provided or would be provided to an Australian performing equivalent work in the same location
- ensure you work only in the occupation, program or activity for which you were nominated
- not recover, transfer or charge certain costs to you or another person (for example, recruitment costs, sponsorship/nomination fees, migration agent costs)
- if requested in writing, pay reasonable and necessary travel costs to allow you and your family members to leave Australia; tell the Department in writing when certain events occur (for example, changes to your sponsor’s address/contact details, if your employment with the sponsor ends, if your duties change)
- cooperate with inspectors from the Department or the Fair Work Ombudsman who are investigating whether your sponsor has complied with sponsorship obligations;
- keep records that show they are complying with their sponsorship obligations and provide those records and information to the Department if requested.
The fact that you were previously employed in India by the same company shouldn't matter: as an employee working in Australia, you are entitled to the same rights and conditions as any other worker.
You can lodge a complaint directly with NSW Industrial Relations here. (The national workplace relations system now covers all employers and employees in New South Wales.) You should also make a report with the Department Of Immigration and Border Protection.
Before you proceed, you can work out roughly how much you've been underpaid using the Fair Work Ombudsman's wage calculator. The Fair Work Ombudsman website us also a great place to get advice on how to resolve the issue and learn about relevant Australian workplace laws. (You can get the information in other languages, if that makes it easier to digest.) It's also worth calling the Fair Work Infoline on 13 13 94 or 13 14 50 if you require an interpreter service.
I'm no industrial relations expert but this sounds like a very serious breach of multiple Australian workplace laws. You should absolutely pursue this legally to get everything you're owed.
We're keen to hear from other readers on this one. If you've ever been in a similar situation or have expertise in the area of worker exploitation, please share your advice with Jordan!
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