Legal Aid NSW has reported a notable surge in the number of NSW workers seeking legal assistance concerning wage theft. The independent government agency revealed a substantial 43 per cent increase in inquiries to Legal Aid NSW’s Employment Law Service from 2022 to 2023.

Wage theft encompasses various illegal activities, including underpayment of wages, non-payment of overtime, and denial of entitlements like leave or superannuation. Legally, these practices breach the Fair Work Act and other employment laws and often lead to significant penalties for the offending employers.

Giles Fryer, a solicitor in the employment law service at Legal Aid NSW, stated that common wage-related issues the team was asked to advise included “breach of contract and wage theft, including underpayment or non-payment of entitlements”.

Fryer also revealed that they frequently guide employees who have not received payslips from their employers even though such actions are illegal. This lack of documentation makes it increasingly difficult for employees to verify the accuracy of their payslips in reflecting the hours they have worked.

“We often see employees who are paid below award rates and not given payslips, despite this being a legal requirement. That makes it harder to identify if they are owed unpaid overtime and penalty rates, annual leave or superannuation.

“We help them calculate what they are entitled to, and we can help them to recover amounts they are owed from their employers,” he said.

Migrant workers, who represent 26.3 per cent of all jobs in Australia, according to the Australian Bureau of Statistics, are particularly vulnerable to such wage exploitation.

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They are often concentrated in industries such as retail, hospitality and agriculture and are more likely to be casual and seasonal workers, which can make them vulnerable to various forms of exploitation.

Fryer expressed that migrant workers are often hesitant to report exploitation, citing concerns about potential visa-related consequences. However, he underscored that they are inherently entitled to the same employment law protections as all other Australian workers.

“Many migrant workers don’t report exploitation because they are fearful they could lose their visa rights; however, we want people to know that there are new protections in place if they choose to take legal action.

“Migrant workers are now entitled to the same employment law rights and entitlements as other employees working in Australia. These changes are applicable regardless of migration status,” he said.

Legal Aid NSW expressed that a migrant worker approached them after being significantly unpaid at a rate of $19 an hour while employed at a small business in Sydney. They also “consistently worked 12-hour night shifts without breaks, including on public holidays, and were not paid penalty rates or superannuation and did not receive payslips”.

By being underpaid, the migrant worker revealed that he faced significant challenges. He struggled to meet his daily expenses and was told that their student visa may be cancelled due to his inability to afford university fees.

The worker said: “When I raised the underpayment with my boss, I was fired and left totally jobless with no savings, and I had to borrow money from a friend. I was very helpless. It was stressful.”

“In Australia, I noticed that if employers know you’re on a student visa, they will use you and throw you in the dirt.”

Upon receiving assistance from Legal Aid NSW, it was revealed that they were entitled to more than $60,000 and are currently working to seek recovery of these funds.

In light of this instance, Fryer said: “We encourage people to check their wages and entitlements like leave and loading by using the Fair Work Ombudsman’s online Pay and Conditions Tool to make sure they’re above board and to reach out for help if there are any red flags or they are unsure. There is a six-year time limit to commence a court claim. It is best to seek advice about your issues as soon as possible after they happen.”

The Australian government has recently taken steps to address workplace exploitation by passing the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 this year.

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