Many employees under 30 years old do not know their workplace rights. McDonald Murholme lawyer Bianca Mazzarella comments on sham contracting and how young workers are getting trapped.
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How to make sure you’re not getting ripped off at work – News.com.au
IF YOU’RE under 30 and employed in hospitality or retail, you’re probably pretty annoyed by the recent cuts to Sunday penalty rates.
But reducing Sunday rates isn’t the only way young people are being squeezed. Many of them are blatantly being ripped off.
A survey released last year by the ACTU found that 50 per cent of young respondents said they were not getting paid the right amount, and 56 per cent said they were not receiving the right training at work. One-third were worried they were not being paid enough superannuation.
So how do you ensure you don’t get ripped off at work?
The answer is knowing what your rights are, according to employment lawyer at Maurice Blackburn, Kamal Farouque, who says young people are easily exploited in their desperation to get some experience under their belt.
“They are a vulnerable group of people, many of whom do not know their workplace rights, and they are entering their first jobs,” Mr Farouque said.
Here is what to watch out for:
Recently, Crust Pizza was accused of paying delivery drivers less than one-third of the legal minimum wage at one of the NSW franchises, through a per delivery payment system rather than an hourly rate.
Similarly, in a Fairfax media investigation, a number of Domino’s franchisees were allegedly found to have deliberately underpaid workers and short-changed them on entitlements.
Last month, seven Pizza Hut franchisees were found guilty by the Fair Work Ombudsman for classifying delivery drivers as independent contractors rather than employees, meaning proper entitlements were never paid.
This kind of practice, dubbed “sham contracting”, is a trap for young workers, according to Bianca Mazzarella, a lawyer at employment firm McDonald Murholme.
“I have a few cases going through the county courts now in which people have been hired as contractors when, for all intents and purposes, they are employees,” Ms Mazzarella said.
“The employees are made to set up an ABN and invoice the company like they are a contractor, but they’re actually an employee and they’re missing out on all of their entitlements, such as annual leave, sick pay and so on.”
BEWARE OF UNFAIR ‘TRIALS’
Some unscrupulous managers may request a free trial prior to employment. This should be an alarm bell, according to Mr Farouque.
“Often what happens in this situation is that the trial is unpaid and this is illegal,” he said.
“You should get paid for your time.
“More often than not, these so-called trials don’t amount to a fulltime position, and you have to wonder about a boss who offers these kinds of trials anyway.”
UNPAID WORK REQUESTS
Most of the industries that hire young people — cleaning, security, retail and hospitality — are covered by awards that stipulate a set of conditions.
Superannuation, a basic award rate, penalty rates, allowances and so on, will all be laid out in the award.
This includes receiving overtime if a worker exceeds what is termed “ordinary hours”.
“If you are required to work more hours than your set ordinary hours each week, then under your award you will be entitled to payment, but many workers don’t pursue it,” Mr Farouque said.
Many employers also ask workers to turn up to work 15 or 20 minutes early to prepare for opening time.
“It is illegal for them to not pay you for this time, as it is work time,” Mr Farouque said.
Be wary, too, of those employers who wish to pay you in cash, as if you’re being paid off the books you’re unlikely to receive superannuation and other entitlements.
CASUAL WORK THAT ISN’T
In some instances, employees will be branded as “casuals”, which means they are not entitled to sick leave, carer’s leave or annual leave.
“However, if you have been working regular hours for a regular period, then the law may very well deem you fulltime,” Mr Farouque said.
There may even be a provision within the award that obliges an employer to shift a casual employee into fulltime employment after a certain amount of time.
Be aware, however, that shifting from casual to a fulltime position will result in a loss of casual loading so, in effect, a pay cut.
It’s not unheard of for employers to dock workers’ pay for some trifling error, according to Ms Mazzarella.
“A client of mine was asked to pay $1500 out of her pay because an important document went missing,” she said.
“This is completely illegal.”
In some cases, workers will be dismissed within the first six months of employment, which prevents a worker from launching an unfair dismissal case.
“But they could still file a claim under general protections if they have been wrongly dismissed or bullied,” Ms Mazzarella.
“The most important thing for young people is to speak up so there is a record of their grievances and to put as much of it as possible in writing as they will have a much higher chance of success in seeking some justice later on.”
Reference: How to make sure you’re not getting ripped off at work, News.com.au, 10th March 2017.