Theft works both ways
Imagine if you took a stroll down to the cash registers at work, popped open the drawer and helped yourself to an amount as small as $5, writes Nina Hutchinson.
You would expect some pretty serious consequences, right? Perhaps an investigation based on CCTV or witness evidence? Perhaps the loss of your job? Not to mention the possibility of criminal prosecution - even for such a small amount of money.
What if the same principles of theft applied when an employer simply elects to deduct money from your wages which you have legitimately earned?
Great news! It does.
In one recent example Carolyn was accidentally overpaid approximately $300 in casual loading by her employer. Her employer’s payroll identified the error and unilaterally cut her pay in the following week leaving her with just $23 in her bank account. Carolyn was not notified of the error and the decision of the employer to recover the over-payment. She was not aware until the following pay cycle when she went to pay for her weekly groceries and, embarrassingly, her debit card was declined.
The money was legitimately overpaid, so that's legal, right? Not even close. Employees have rights and protection.
Money cannot be withheld from your pay without your express agreement or in accordance with the relevant laws.
Under the Fair Work Act an employer is only permitted to make a deduction from your wages if it is authorised:
- in writing by the employee and is principally for the employee’s benefit;
- by the employee in accordance with an enterprise agreement;
- by or under a modern award or an FWC order; or
- by or under a law of the Commonwealth, a State or Territory, or an order of a court (e.g. garnishee order).
In some enterprise agreements there is the capacity for the employer to recover overpaid wage. However, these are subject to very stringent conditions including the employee and employer must agree that there has been an overpayment and the amount to be repaid.
Anything else is not authorised by the law and is the equivalent of theft.
Does Carolyn’s story have a happy ending? Fortunately it does because she was a member of the SDA.
Carolyn contacted her Organiser and with our assistance she was not only reimbursed the $300 but she also received a gift voucher to compensate her for the default penalty she had incurred for a late payment of a bill.
So why did this happen? Deducting money without Carolyn’s authority was against the law, right?
Unfortunately, too many employers are trigger happy about your wages and Carolyn’s story is not unique. Unlawful deductions are far too common in the retail and fast food industries. Without support, many workers are forced to go it alone. In circumstances where employees are naïve to their rights and they have no representation employers ignore their workers and continue to break the law.
So what can you do?
Members of the union should not accept money deducted from their wages against the law. If this happens to you call us immediately so we can provide you with advice.
Many workers are fearful of making a claim or raising a dispute because of possible retribution. However, it is unlawful for an employer to take adverse action against a worker because they have exercised a workplace right.
Remember, the employer would never accept you helping yourself to the till without permission so never accept the employer helping itself to your pay without your authority.