Unpaid entitlements

Under the Fair Work Act 2009 (Cth) (Fair Work Act), your employer must pay you in full at least monthly unless a modern award or an enterprise agreement provides for payment weekly or fortnightly.

This covers all amounts payable in relation to the performance of your work, including:

  • wages
  • incentive-based payments and bonuses
  • monetary allowances
  • overtime or penalty rates
  • loadings
  • leave payments.

Failure to pay your entitlements is a breach of the Fair Work Act.

If your employer fails or refuses to pay you any or all of your entitlements, you can make a complaint by contacting the Fair Work Ombudsman on 13 13 94 or visiting www.fairwork.gov.au.

My employer is taking money out of my wages because they say I owe them money, can they do this?

Your employer can only make deductions from your pay if:

  • you have provided a written authority for the money to be taken and it is principally for your benefit
  • the deduction is authorised by an enterprise agreement, modern award or an order of the Fair Work Commission
  • the deduction is authorised by a law of the Commonwealth, state or territory or by an order of a court (e.g. income tax, garnishee orders).

Your employer may not deduct money from your pay if:

  • the deduction benefits your employer and is unreasonable in the circumstances
  • you are under 18 years of age and your parent or guardian has not agreed to the deduction in writing.

I have been overpaid, can my employer deduct money from my pay?

Your employer could inadvertently overpay you because of a miscalculation of your entitlements or an administrative error. If this happens, your employer cannot simply take money out of your pay to fix up a mistake or overpayment.

Your employer will need to discuss the overpayment with you and come to an agreement with you on a repayment arrangement. If you agree to repay the money, a written agreement will need to be made detailing:

  • the reason for the overpayment
  • the amount of money overpaid
  • the way repayments will be made (e.g. cash, cheque or electronic transfer)
  • how often repayments will be made (this has to be reasonable).

If you and your employer cannot agree to a repayment arrangement, your employer may be able to take legal action against you to recover the overpayment.

Taxation and superannuation

Taxation

By law your employer is required to withhold income tax from your pay and pay it to the Australia Taxation Office (ATO). A simple tax calculator is available on the ATO’s website.

Sometimes, your employer may not withhold the correct amount of tax from your pay and you may be required to pay more tax at the end of the financial year. If you are not sure whether your employer is withholding the correct amount of tax, you should contact the ATO on 13 11 42.

If you find out that your employer is not paying your tax, you should seek legal advice as well as talking to the ATO.

Superannuation guarantee

Your employer is legally required to pay a percentage of superannuation contributions (currently 9.5%) of your ordinary hours worked. Depending on the terms of a modern award or enterprise agreement, you may be entitled to a higher rate of superannuation.

Superannuation contributions must be paid by your employer at least every three months into the superannuation account you nominated when you started employment.

For more information about the superannuation guarantee, visit the ATO’s website or contact the ATO on 13 10 20.

If you still are uncertain whether your employer is paying the correct amount of superannuation, you can lodge an inquiry about unpaid super by using the ATO’s online superannuation guarantee calculator tool.

Alternatively, if you need assistance in recovering unpaid entitlements (including superannuation), the Fair Work Ombudsman may also be able to assist.

Making a claim for unpaid or underpaid wages and entitlements

If you think that you have been unpaid or underpaid, the first step is always to speak to your employer.

If you cannot resolve the issue directly with your employer, you should contact the Fair Work Ombudsman who may be able to assist.

If the Fair Work Ombudsman cannot help you solve the problem you can bring an action in the Federal Circuit Court to recover the money.

More information about this process including a really detailed self-help guide are available on the Fair Work Ombudsman’s website.

Payslips and record keeping

Record-keeping and pay slip obligations ensure employees receive correct wages and entitlements.

Pay slips

Under the Fair Work Act, your employer is required to provide you with a pay slip within one working day of when you are paid, even if you are on leave. At a minimum, your pay slip should include:

  • employer’s and employee’s name
  • employer’s Australian Business Number
  • pay period
  • date of payment
  • gross and net pay
  • your hourly rate and the number of hours at that rate
  • any loadings, allowances, bonuses, incentive-based payments, penalty rates or other paid entitlements that can be separated out from an employee’s ordinary hourly rate
  • any deductions
  • any superannuation contributions paid.

If you are not provided with a payslip, you should ask your employer for it. If your employer refuses to provide you with a payslip, you can contact the Fair Work Ombudsman to assist you in resolving the matter with your employer.

For further information on resolving workplace issues, refer to the Fair Work Ombudsman’s website.

Payment Summary

At the end of each financial year, your employer will need to provide you with a summary of your income for the past year. This is called a ‘payment summary’ or ‘Pay as you go (PAYG) payment summary’ and often referred to as a ‘group certificate’.

Visit the ATO’s website for more information on payment summaries, including what is included in a payment summary and what to do if it is late, lost or incorrect.