Wage Theft

Issue 10, Semester 2, 2019

WILFRED HIGGINBOTHAM*

*Note: Author is using a pseudonym

In light of the current headlines about wage theft in the hospitality industry, I thought I’d add my two cents, in case it helps prompt anyone to take action. You should! 
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I finally quit hospitality work about two weeks ago. I’d been in the industry for roughly five years, and during that time not one employer had managed to pay me consistently and correctly. I received a payout from one of my previous employers around a month ago. Here’s how it happened.

Image: Wikimedia Commons

A year and a half into the job, I realised that I was being underpaid. By a lot. At first I was doubtful this was even possible—everything seemed totally above board, and I liked and trusted my employer. I remember thinking that surely they couldn’t be breaking the law—someone would realise and have done something about it, right? I mentioned my suspicions to another employee, and (in a slightly conniving way) I got him to raise it with our employer because I was afraid to rock the boat. He was fired. 

I gave up, staying on for another year and rationalising my choice by concluding  that having a job (that I enjoyed a fair bit) was better than being unemployed. 

I resurrected my attempts at getting what was owed after meeting with my dismissed coworker for a beer a few months later. He let slip that he’d signed a confidential settlement with our employer for a portion of what he had claimed. Armed with this new knowledge, I finally decided to face up to my employer and request my unpaid wages. I went through my payslips and transferring all my hours into an excel spreadsheet, calculating how much I had been underpaid. At the time I thought it would be simple – my employer had already paid someone out, the precedent was there, how could he refuse? 

He refused. He told me that if I chose to go to FairWork over this then I shouldn’t show up to my shift that Friday. He told me that my calculations were ‘bullshit’ and that I’d never get anywhere near that figure. He said the company would fight me at every turn, and spent twenty minutes defaming my friend who had received the confidential settlement. I was told that I had to decide whether or not I would pursue my claim then and there. 

I replied that I wouldn’t make that decision on the spot, and he gave me a deadline of 6pm that day. I requested that he place what he said to me during the meeting in writing, and he quickly back-pedalled. We met the next day and he offered me a third of what I requested and said that we could continue on as normal. I declined. That night I received a very lengthy email degrading me as an employee and an individual. It was not a fun time.

At this point I felt lost. I had little faith in being able to pit myself against the company as an individual with no backing. The intimidation and coercive tactics were already starting to wear me down. FairWork themselves offer very little guidance. Their attempts to remain even between employers and employees, despite obvious power imbalances, has left a very sour taste in my mouth (also recent Liberal appointments to the commission have been very employer-friendly)and JobWatch phone lines are far too oversubscribed. Luckily, another student at MLS clued me into the Young Workers’ Centre, a pro bono CLC that takes on workplace cases for young people. I basically knocked their door down in a panic and they agreed to take me on as a client.

They filed a protections form that prevented my employer from dismissing me, and ran the rest of my case. The entire process took months; it included several FairWork mediations and extensive negotiations with my employer’s lawyer. 

 I’m extremely grateful to the Young Workers’ Centre – I know I couldn’t have achieved the result I did without their help. The current system is far too favourable to employers. Employees who are underpaid and exploited are commonly young and unaware, migrant workers, or the most vulnerable. 

Not everyone has the time or the financial safety net available to allow them to contest these issues like I was able to. Protections offered to hospitality employees under the law lack enforceability and the (relatively) minor amounts usually being contested make protracted legal battles costly and unappealing. 

Criminalising wage theft is a start, but criminal prosecution of dodgy employers does not grant employees what they are owed. I am worried that the targeting of high-profile companies and industries, as well as political promises, may only be political manoeuvring. Colombaris’ restaurants and Chin Chin are well known examples, but spare a thought for the workers at your local fish and chip or Chinese takeaway getting paid fifteen dollars per hour, or less, in cash. As consumers we should be investigating and making ethical decisions about the businesses we frequent. Does the shop only accept cash payments? If so, they’re probably dodging tax and underpaying their employees. We should not be complicit in their practices. 

If you have been or still are being underpaid, try and get what you’re owed! It’s an arduous process, but the money in your bank account at the end of it is absolutely worth it. 

​Wilfred Higginbotham is the pseudonym of a Second-Year JD Student.