To work out if you have been paid incorrectly or not received your due entitlements you need to know:
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the name of your award or agreement
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your classification under the award or agreement
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your employment status (full time, part time or casual)
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your pay rate under the award or agreement
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the entitlements owing to you under this award or agreement (for example, annual leave, penalty rates, overtime, etc).
For more information about your award, visit the Office of Industrial Relations (OIR) website or telephone the OIR information line on 131 628.
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Step 2: Write to your employer about outstanding payments
If you believe you have not received the correct pay and entitlements, you should write to your employer about the problem. They may have made a genuine mistake that can be easily rectified by discussing the issue with you. There is a sample letter on the back page to help you complete this step.
Step 3: Take further action if the issue is not resolved
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contact your union for assistance, if you are a member
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take your own court action through a small claims application
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take your own legal action through a solicitor.
If you are unable to do any of the above, you may lodge a formal industrial complaint with the OIR.
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The OIR investigates alleged breaches of NSW industrial relations legislation, awards and enterprise agreements. The OIR may prosecute an employer under these laws.
If you lodge a formal industrial complaint about an employer, the OIR may investigate your allegations if your employer is unincorporated (for example, a sole trader or a partnership), as it is likely that your employer operates in the NSW industrial relations system.
The OIR may also investigate if your complaint relates to non-payment of long service leave under the NSW Long Service Leave Act 1955.
If your employer is incorporated (for example, Pty Ltd is part of the employer's name), then in most cases, the OIR can only assist in investigating your complaint to recover money up to 27 March 2006. Alleged underpayments from 27 March 2006 will be forwarded to the Department of Employment and Workplace Relations or you can contact them directly on 1300 363 264.
The OIR does not represent you or your employer when investigating an industrial complaint.
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When can the OIR investigate your industrial complaint?
Generally, the OIR can investigate your industrial complaint when:
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you meet the OIR's assessment guidlelines
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you have already tried to resolve the matter with your employer
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the underpayments relate to work you have undertaken in the last six months
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your yearly pay does not exceed $95,000 gross
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your employer is unincorporated
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your employer is incorporated and your claim relates to long service leave or includes underpayments prior to 27 March 2006.
Important information about OIR investigations
Usually, the OIR will investigate your most recent six months of employment. If it is considered that your employer breached a law, the OIR may extend its investigation to an earlier period of your employment.
If no breaches of NSW industrial relations laws are found, the OIR will terminate our investigation of your industrial complaint.
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When lodging an industrial complaint with the OIR you must make sure that:
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you obtain and fill out an industrial complaint form available from an OIR office or by calling 131 628
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all parts of your industrial complaint form are completed as accurately as possible
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you sign and date the industrial complaint form
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you include any relevant documentation and information with your complaint form (for example payslips, group certificates etc.)
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you include a copy of your letter to your employer and any response received as well as copies of any emails and notes of any telephone conversations with your employer.
The OIR's assessment of your industrial complaint
The OIR can only accept industrial complaints that relate to your last six months of work and if your gross salary is less than $95,000 per year.
The OIR will not investigate an industrial complaint if another organisation is also investigating your complaint (eg a solicitor or union).
If you have lodged an unfair dismissal application concerning your employment, the OIR will not investigate your industrial complaint until the unfair dismissal claim has been finalised. Similarly, the OIR may not investigate industrial complaints where allegations of criminal activity remain unresolved.
What if my former employer is in liquidation?
If your former employer is in liquidation, the OIR is unable to assist you. You should proceed with your claim through the appointed liquidator. The Federal Department of Employment and Workplace Relations may also be able to assist in this situation. You can find out more by contacting the General Employment Entitlements Redundancy Scheme on 1300 135 040.
What happens after I lodge an industrial complaint?
When an industrial complaint is accepted, the OIR will inform you and your employer that you have 28 days to mutually resolve the matter. If these attempts at resolution fail, an OIR inspector may investigate your complaint.
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What happens if the complaint is not resolved in the 28-day period?
Most industrial complaints are resolved during the 28-day period. If your industrial complaint remains unresolved at the end of this period, the OIR will check that you have made a genuine attempt to resolve your industrial complaint.
If the OIR, on the information obtained, considers your industrial complaint justified, your employer will be contacted and requested to provide evidence that shows you have received your correct pay and entitlements. In most cases, you will also be interviewed by the OIR and required to produce additional information.
If, as part of this investigation, the OIR finds breaches of the award, agreement or NSW industrial relations legislation, the OIR may issue fines or prosecute your employer before a NSW court.
Preparing for court proceedings takes considerable time as sufficient evidence needs to be obtained to prove your case successfully. You must be willing to attend court as a witness. If your employer is convicted, the court may order them to pay you your outstanding entitlements.
For further assistance on how to resolve an industrial complaint call the OIR on 131 628.
If you decide to take your own action through a small claims application, a free guide is available from the OIR website or by calling 131 628.
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Office of Industrial Relations
Ph: 131 628
TTY: 1800 555 677
Australian Taxation Office
Ph: 132 861
Superannuation Infoline: 13 10 20
Federal Department of Employment and Workplace Relations
Ph: 1300 363 264
General Employment Entitlements Redundancy Scheme, if your employer is in liquidation: Ph: 1300 135 040
Industrial Registry
NSW Industrial Relations Commission
Unfair Dismissal claims: (02) 9258 0866
www.lawlink.nsw.gov.au/irc
Chief Industrial Magistrate's Court Registry
Office of the Clerk of the Local Court
Ph: (02) 9287 7832
Level 4, 1 Downing Centre
Corner Elizabeth & Liverpool Streets
Sydney NSW 2000
Unions NSW
Ph: (02) 9264 1691 and 1800 688 919
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Telephone 131 628 to contact your nearest office
Sydney City
Ground Floor McKell Building
2-24 Rawson Place
Sydney NSW 2000
Western Sydney
518 High Street
Penrith NSW 2750
(PO Box 4004, Penrith Plaza NSW 2750)
South-Western Sydney
Suite 1a, 41-45 Rickard Road
Bankstown NSW 2200
(PO Box 3096, Bankstown Square NSW 2200)
Southern NSW
Level 2, Block F, 84 Crown Street
Wollongong NSW 2500
(PO Box 887, Wollongong East NSW 2520)
Northern NSW
Jetty Village Shopping Centre
Suite 49, Corner Orlando & High Streets
Coffs Harbour NSW 2450
(PO Box J115 Coffs Harbour Jetty NSW 2450)
Newcastle
Level 3, 97 Scott Street
Newcastle NSW 2300
(PO Box 803, Newcastle NSW 2300)
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Please retain a copy of this letter.
If you lodge a complaint with the OIR you MUST ATTACH a COPY of this letter and any response recieved from your employer.
|
(Your name)
(Your address)
(Today's date)
(Your employer's name)
(Your employer's address)
Re: Outstanding Pay
I refer to my employment with your organisation as a (your job title) on a (full-time/part-time/casual) basis unfer the (name of award or enterprise agreement).
I believe that the following entitlements are owed to me:
(List each of your outstanding entitlements, how much you think you are owed and how you have calculated this)
|
Entitlement |
Calculation |
Amount Owed $ |
|
Underpayment of
Wages for the period
(date) to (date) |
(number) Weeks/hours x (your rate of pay) |
|
You are requested to pay the outstanding amount within seven days of this letter. If I do not receive a response from you within this time, I may lodge a complaint with the Office of Industrial Relations.
Further information about these entitlements is available from the Office of Industrial Relations website or by telephoning 131 628.
If you wish to discuss this matter further, please contact me on (your contact details).
Yours sincerely
(Your signature)
(Your name) |
Phone: 131 628
| Award Enquiries
©Office of Industrial Relations, NSW Department of Commerce
Rights & Responsibilities
