This story describes my own experience, but has been backed up by a number of backpackers who I've hosted recently; one of them (on $14) reporting a thai workmate claiming she was on just ~$7/hr at a city takeaway. I fear Australian natives aren't taking this seriously and, unless we do, will find ourselves with a two-tier class system of different jobs and wages for the 'natives' and the 'foreigners'. The legal minimum for adult casuals in 2015 is over $22/hr.

Minimum Wage is not working

Work the job at whatever (illegal) rate you're offered then—after you've quit— reclaim the difference through the Fair Work Ombudsman. Even if you work there for years you'll get all the backpay of all the pay you never got but were legally entitled to. Perhaps think of it as an enforced savings plan...

You will be offered less than the minimum wage

To break up the work-from-home isolation, I went for a casual job at the Gloria Jeans franchise a block from home in Manly NSW. Just as it is illegal for an employer to pay less than the award, it is illegal for an employee to accept less than the minimum wage. Being unfamiliar with the industry and current award, I assumed that my potential employer would not ask me to be their accomplice in something illegal. At the interview I was told the hourly rate would be $18.18.

I was naïve. Apparently this is a common practice.

Asking for the minimum wage is a sackable offense

So after four shifts I received my first pay cheque. It's quite obvious that I'm over 20 years old yet the payslip described me as a 20 year old shop assistant. This prompted me to look up the award rate. It was a little messy but I fumbled through guessing at the things I couldn't be sure of. I found the relevant award Fast Food Industry Award MA000003 and that the minimum legal wage for a casual cafe assistant back in 2006 was $20.27; the 2012 rate could only be more.

So I emailed the franchise paymaster referencing the award and asking if my pay rate was thought to be correct.

The next day I got a phone call from the franchise owner—taking care not to put anything on paper. The phone conversation was a bit surreal as this, otherwise kind person, warily recounted that they'd told me what the pay rate was and that I'd accepted it. I responded that I'd assumed they were offering a lawful wage and did not agree to collude with them in an illegal arrangement. The call concluded with her justification that they "had to do this", laying blame on the high rent expense of their prime location at the wharf. She would not pay the award and, if I was unwilling to accept the rate on offer then, our engagement was at an end.

I agreed, and was asked to return my uniform.

Lodge a complaint with the Fair Work Ombudsman

I didn't consider this experience very "Australian" so next day I called the Fair Work Ombudsman, put the phone on 'speaker' and endured 90 minutes on hold.

The gentleman I spoke to was pleasant but very posh and technical and intimidated me with lofty ideas such as "engage a lawyer" and "take it to the Supreme Court". After a discussion, which I felt would terrify anyone who was not a permanent citizen, something twigged and between us we managed to work out that during the automated telephone prompts I must have selected 'unfair dismissal' which is a 'very serious offence' and had redirected me to a legal office in Canberra. He routed me back to the NSW Ombudsman. I only waited half an hour on hold this time.

The guy at the Ombudsman was very helpful although, like a lawyer, he was was at pains to express that nothing he might say 'could be taken as advice'. Reading between the lines I worked out that any whiff of 'unfair dismissal' leads nowhere useful, and that focusing solely on the money is the only progressive approach. He gave me case number and told me to fill out a complaint form and to mail it registered post (to Adelaide). Which I did.

In my complaint I also expressed a strong interest toward ensuring that all their employees were being paid to the award, and not just me. It was most apparent to me that the other employees, not Australian citizens, were not receiving award rates.

The paperwork would seem quite intimidating to a non-national. It took some time but wasn't difficult for an English speaker confident of their citizenship and rights.

Nip it in the bud

A few days after the dismissal conversation with the owner I received another pay. This one cited a "computer error" and included a bit more money. Clearly someone figured it was worth correcting their paper trail in retrospect.

Complaint Received

A few days later still I received a letter from the Fair Work Ombudsman stating that the complaint was received and that the employer would receive notice and be encouraged to resolve the complaint directly.

An email came through from the business owner stating their disappointment with the complaint, denying any wrongdoing other than an isolated computer glitch, and asking what more I wanted of them.

I responded by email that I was concerned about systemic disregard for the minimum wage and hoped a third party audit of their books would ensure that was not the case. No response.

The Ombudsman only works if you lodge a complaint

I received a call from someone at the Fair Work Ombudsman which made is clear how employers can get away with such obvious unlawful behaviour. So this is where the system is broken:

The Ombudsman is empowered to ensure that anyone who complains receives all that they're legally entitled to, but no-one else. To get their help, each and every employee must ask for it individually. They don't have the power to inspect the payroll of a business generally.

I'd already received backpay for the underpayment but, the officer pointed out that some "unpaid trial" hours I'd done were illegal. She could ensure that I was paid for those 3 hours.

An unpaid trial, or "training", is illegal

For the others working there, the Ombudsman is powerless unless they make their own complaint. Of course, making a complaint effectively guarantees that you'll be removed from the roster and asked to return your uniform. So what to do?

How to fight back

  1. bide your time, keep quiet, and don't give the employer a reason to sack you
  2. ensure you get payslips—with names and dates on them—and store them all safely
  3. work the job until you don't need it anymore
  4. leave the job
  5. lodge a complaint with the Ombudsman providing copies of all the payslips
  6. receive a big lump of juicy backpay

If enough people did this, more small business employers might elect to stay ahead of ombudsman attention and hefty backpays by actually paying the minimum wage. Maybe? But at least you get both the work and the pay.

Shorting your workers of a fair pay for a fair day is not a fair way to run your business.


History

The minimum wage was first established in Australia via the Havester Case in Victoria in 1907 to expressly provide a 'fair and resonable wage' that meets 'the normal needs of... a human being in a civilised society'. It has the specific intention of providing the minimum of food and shelter for employees in the face of an owner struggling to keep a business afloat. It was never intended to set a socially-acceptable-minimum point for profiteers to reference.

The Havester Case
Minimum wage is more than a safety net, it's a symbol of Australian values

Complain to the Franchisor

In this instance the business was a franchise. Franchisee's are often contracted to avoid doing things which might damage the franchise. I contacted the head office of Gloria Jeans and received some very sympathetic sentiments about my experience. However, aside from that one conversation, every follow-up was ignored and nothing ever happened.

I'm very disappointed in the Gloria Jeans head office response, as their reaction confirmed they are aware this practice is occuring, yet they did nothing to demonstrate, or even reassure, me they are active in preventing it. Do they turn a blind eye? Are they complicit?

I have many Christian friends and whenever I mention Gloria Jeans they always say something like "did you know they're a Christian organisation" and often relate it to Hillsong Church. Personally, I question whether the company, or their franchisees, are behaving as Jesus does.

In August 2015, Four Corners reported on widespread systemic underpayment to employees, within the 7-11 chain of convenience stores, alledging that the franchise owner has implemented a system which makes it impossible for the franchisee to make money—and not only encourages, but facilitates, the underpayment of workers.

In the Media

If all your friends jump off the Harbour bridge, will that turn it into a healthy decision? Australians need to wake up to the fact that this is not an isolated incident:

Thousands of restaurant and cafe workers underpaid $1.2m
Slaving away: The dirty secrets behind Australia's fresh food
Pharmacists accused of underpaying worker
Golden Farms chicken factory worker discovers underpayment
Trucking operator confesses: I ripped off driver to stay competitive

Call the Union?

I'm not a political activist nor member of any political party. However, at various times, my wages have been garnished for compulsory union fees. In particular, in another experience around 1999, I started a shelve packing job for a local Franklins supermarket. It was the opening of a flagship new "Franklins Big Fresh" store at Brookvale. I witnessed some concerning abuses so attempted several times to contact the local branch of the relevant union. Despite the size and scale of the opening hiring, I was unable to get any union representative to come onsite, or to talk to me, or to talk to any management staff; or even to give me a contact name. The best I could get was a copy of the award in the mail.

I took that document to my supervisor and pointed out some serious departures they were implementing. For example failing to issue itemized paychecks—we were receiving cash in envelopes with names written on them and no other documentation—there were ommissions of the minimum rest breaks, disregard for minimum hours and penalty rates, freezer work provisions were ignored. The supervisor I approached, quite literally, threw the document at me then made various threats. I found myself off the roster. If I rang chasing work I would be given a single shift here, or there. It was clear I was no longer wanted.

I do believe unions are a valuable concept, but I have never experienced them being effective on the ground. That night-filling experience I witnessed a systemic whittling away of workers who would stand up for themselves until there remained a core of broken and marginalized folk who simply did not have the confidence, character, or situation to defend against a steady erosion of conditions. They just did whatever they were told and accepted each new misery. Such people will always be in society and, I believe, it is the duty of the strong to defend them.

Is the Health Services Union expenses affair representative of the union movement in NSW?