Highlights
- Experts say very few temporary migrants come forward to try and complain or recover their unpaid wages
- Those that do often find the litigation process full of obstacles
- On July 1, Victoria made wage theft a crime and new authoritative body Wage Inspectorate Victoria was created to investigate and prosecute cases
Fresh out of university and without signing a work contract, Jane thought she had begun work as an accounting associate.
The 26-year-old from mainland China worked unpaid for almost three months in Melbourne last year on a temporary migrant visa while questioning her pay conditions and job status.
Jane says her boss told her she had applied for an unpaid intern position that would only be converted to a paid, regular role based on “good” performance.
The original job advertisement has since disappeared from the internet. Without the evidence, a war of words ensued and for Jane, a seven-month long battle to recover her wage followed.
Only the beginning of a new legislation
New Victorian legislation made wage theft a crime on July 1.
Employers who deliberately underpay workers can be sentenced to a maximum of 10 years in jail or face fines of more than $210,000. Companies could be fined more than $1 million.
A new independent statutory authority Wage Inspectorate Victoria was launched on the same day giving it powers to investigate and prosecute cases of wage theft.
Jane says her former employer still owes her over $6,000 in wages. Source: AAP Image/Dean Lewins
But it was a little too late for Jane. She had decided to drop her lawsuit in July after months fighting for the $6,597 she believes she is owed and after receiving a stern message from her former employer.
The correspondence, seen by SBS Chinese, requested her to drop her small claim application from the Magistrates’ Court and stated she would have been liable for any costs, losses and damages suffered by them had she proceeded with court action.
“It just feels very unfair,” says Jane, who first reported the matter to the Fair Work Ombudsman after quitting.
Associate Professor at the University of Technology Sydney’s School of Law Laurie Burg says there are very few temporary migrants willing to come forward to try and complain or recover their unpaid wages.
Out of the few willing to speak up, such as Jane, they’ll often find the litigation process full of obstacles.
New Victorian legislation and authoritative body 'a step in the right direction'
Prof Burg doesn’t think the new legislation will be a silver bullet or provide an answer for every wage theft case.
“Certainly, I think it’s an improvement,” she says, “By making wage theft a crime, it shows how serious it is.”
It treats employers who don’t pay their employees the same as an employee who steals money from their employer.
Whether the Wage Inspectorate Victoria would have made a difference in Jane’s case remains to be seen.
“(The introduction of the agency) dedicates more resources into wage theft investigations, which is critical because the Fair Work Ombudsman at the moment does not have enough resources to assist enough temporary migrants,” says Prof Burg.
Energy and cost of litigation
In a letter to SBS Chinese, Wage Inspectorate Victoria commissioner Robert Hortle said to make a report, victims should include information that shows the employer has dishonestly unpaid the worker or withheld entitlements.
This may include payslips, contracts, bank statements, timesheets and text messages or emails between the employee and their boss.
“We may still be able to investigate your matter if you don’t have this information,” says Mr Hortle.
Jane says she worked full-time and sometimes overtime hours for her former employer without pay. Source: Getty
For non-English speakers, wage theft victims can contact the Wage Inspectorate Victoria via an interpreter free of charge.
Although steps have been made to stamp out wage theft, Prof Burg believes there is much more work to do.
“We need a wage theft system and possibly a new wage theft tribunal that would be quicker and less costly and easier for temporary migrants to access,” she says.
Jane and her boyfriend spent months collecting evidence for her lawsuit and navigating Australia’s court system.
She says too much time and money is spent “filing a case”.
Legal fees would have exceeded $480 per hour, making her financially worse off if she had engaged a lawyer.
She was told her evidence against her former employer was weak in an informal meeting with a lawyer.
Jane says temporary migrants could benefit if Wage Inspectorate Victoria helped them access a “reliable” lawyer.
The Fair Work Ombudsman says last financial year more than two thousand visa holders were helped with workplace disputes. Source: AAP
She also believes the onus should be on accused employers to disprove allegations of wage theft, rather than asking the employees themselves to handle the time-consuming matter with authorities.
Feeling belittled, cash-strapped and exhausted from the reporting process, Jane decided to settle her case outside of court without recovering a cent of the money she still believes she is owed.
“This is why the system is broken because it falls to the worker to prove they were underpaid rather than the employer to prove that they were paid the wages correctly,” Prof Burg says.
Victorians can or by calling 1800 287 287. Wage Inspectorate Victoria’s website has translated materials and information about contacting them through an interpreter, which is free of charge.
