QLD Sham Contractor Arrangment and Wages Below Minimum Wage?

[Cornelius]

I'm currently working as a receptionist at a small gym. When I first started out (July 2014) my boss told me I needed to get an abn and to submit invoices in order to get paid. At that point in time I was working 12 hours a week and only getting paid for 7. For those 7 hours I was paid $20/hr which I believe is below minimum wage for a casual worker. My boss said he only paid me for those hours because I could earn a commission as well. He made it very hard to earn the sales commission and coming up with reasons why I hadn't earned it. Is this legal?

My friend pointed out the other day that it seems that he is sham contracting - hiring me as a contractor instead of as an employee. I am working the same hours every week and have set tasks to complete using equipment provided by the gym.

When I first started, he said that I had to get an ABN because he didn't like doing payearoll and if I insisted on doing it that way instead of getting an abn then payearoll tax would come out of my wages. I'm not sure what to do now as I feel that if I bring this up with him I am likely to lose my job.

What steps should I be looking at taking now?

 

[praxidice]

Did the events you describe occur on the Gold Coast ?? I had a couple of previous experiences comparable to yours albeit in completely different industries. Whilst the perpetuators were particularly experienced in this kind of con I did eventually win both cases. In both cases I had knowledge which could have been used to bring the businesses down, in the first with a reward payable to me sufficient to cover my outstanding money, and in the second with a property claim for well in excess of monies owed. Mind you I'd never again trust any business operating on the glitter strip.

 

[Cornelius]

Nope. It's in Brisbane inner suburbs. And yeah, there's a few things I know that could definitely harm the business. Just haven't yet decided if it's worth acting upon it - it would screw up a lot of people who attend the gym and it's not their fault that the boss/owner is being particularly dodgy.

 

[praxidice]

Ultimately only you can decide how best to proceed. I must admit I did have concerns about the effect of destroying the businesses however in my cases it was unnecessary in the end because both debtors paid up in full shortly before I got to the point of no return. Mind you there were several other sham contractors involved at the time and I was aware there had been numerous others in the past who had been 'had'. My thoughts for what they are worth were that I had something of a moral responsibility to put a stop to the serial conning. After my debts were settled I provided the background information I'd collected to those other victims I could contact so they could then make whatever decision they believed would benefit them the most. Unfortunately it didn't prove to be of assistance to the first mob of victims as the employer was far more shaky than I'd realized and the company was put into liquidation only days later. The odds were that my backup plan wouldn't have worked anyway as it was based on payment of reward money from Microsoft for dobbing in a very serious software pirate (in my case there were several thousands of dollars at stake). I doubt that Microsoft would have paid out if the company knew it couldn't hope to recover anything from a totally broke entity. The second employer was a somewhat different situation being a chronic abuser of trading entities but not exactly short of a dollar. This one was many years after the first and by that time I was somewhat older and wiser. To the best of my knowledge this particular turkey is still trading although there are quite a few victims now with more than sufficient dirt on him to permanently shut him down within hours. His enterprises are reasonably profitable so I presume the victims from my time feel they can exert sufficient pressure when needed to ensure they get paid on time. The glitter strip being what it is, jobs are few and far between and many wage slaves will put up with sub-standard conditions for lengthy periods rather than risk unemployment. In my case the work was merely a temporary diversion while other interests were on hold, consequently I was in a better position than most to take drastic action. That said, the industry has significant staff turnover so there must be plenty of new victims. I probably should take appropriate action, main reason why I haven't to date is that it would take time and resources I need to reserve for more pressing issues. I don't profess to know much about your industry but I wouldn't have thought the potential loss to clients would be significant. On the other hand, unpaid staff wages can easily run up to significant money over a few weeks or months. Entities I'd be talking to for backup would be the ATO (they have a specialist sham trading division), ASIC (although that tribe are a paper tiger unless megadollars are at stake), professional bodies of which the culprit is a member (often critically important to a business), and another mob whose name escapes me but which is charged with the responsibility for ensuring fair work practices (they might be related to the ATO). Do a google for 'fair work' and see what turns up and if you have serious problems get back to me and I'll have a poke around.

 

[Cornelius]

Thanks for your answer.

The reason that it could actually shut the gym down is that it's already very tight on money and on the verge of having to be shut down. And the other stuff that I have on the place is around blue cards and working with kids, which could cause quite a few problems if they were to be made known.

And I'll look into those groups thanks.

 

[praxidice]

Thanks for your answer.

The reason that it could actually shut the gym down is that it's already very tight on money and on the verge of having to be shut down. And the other stuff that I have on the place is around blue cards and working with kids, which could cause quite a few problems if they were to be made known.

And I'll look into those groups thanks.

Under the circumstances I think I'd be looking after my personal interests before worrying about the clients. After all I seriously doubt many of them would give a rats about your wages. Mind you I'm inclined to be cynical about stuff like that. For what its worth, I believe the fair work tribe might just be your best bet as I understand they will go after lost wages and the like before shutting a business down, whereas most if not all other official entities will wade in boots and all, full of their own authority and to hell with anyone else. That definitely applies to the blue card mob, one of the most inept quangos ever to be established..

 

[Rod]

Contact the Fair Work Ombudsman. Your job is at risk once you make a formal complaint so you be prepared to lose your job if you go down this path.

Steps I recommend if you are not afraid of losing your job:

1. Contact the FWO informally. Find out what you should have been paid since you started work.
2. Calculate how much you are owed.
3. Prepare notes for meeting with boss
4. Arrange meeting with the boss, preferably with a witness present (preferably male family member/friend if you are female, female family/friend if you are male) about not being properly paid and you want the situation fixed. Have your notes handy so you don't miss important points
5. If you do not get what you'll settle for, write up notes about meeting asap.
6. Wait day or 2, let things settle down, collect your thoughts and review what you want
7. ???? Depends on situation.

 

[PeanutLuver]

Try phoning or emailing the FairWork Ombudsman - just for advice initially. There is info in their website too about awards and sham contracting and about how to make a complaint.

There are awards for that type of work.

If you eventually decide, or later decide to make an official written complaint to FW for them to look it - it's important you have as much records as possible

- payment /pay slip records
- hours / time sheet records
- any position / duty statement
- anything about how you were appointed
- any superannuation payments which it sounds would be unlikely to be paid.

Other thing to consider - you can always make a complaint later, and once you have found some other work. You are correct in being concerned that a business / employee may terminate a genuine employee (or otherwise) if you make such a complaint while still working there - although this is unlawful under the Act for an employee.

Keep as much records as possible if you wish to make a complaint. The best records is written documents.

You may need to whey up what is best for you at the time.

If you make a complaint and the business / employer says there are no records much then it's harder for FWO to take action.

Bare in mind of the business owner goes bankrupt its much harder to get any unpaid wages or superannuation. There is also a federal body called GEERS (I think) which may be able to help some workers if this occurs. They are a Federal govern group too and would have a phone & web page too,

 

[Matthew Lynch]

Just some further information if you are interested. After contacting the FWO and making a written complaint they will arrange a response from your employer and a mediation.

It is possible the employer will refuse to respond, refuse to attend the mediation or refuse to make any payment at the mediation.

In those circumstances you will have to take the matter to the Federal Circuit Court court and prepare court documents.