I am a foreign worker and feel that I have been underpaid. What can I do?

Your rights as a foreign worker

Foreign workers include seasonal workers, ‘backpackers’ and international students. Foreign workers do not include Australia citizens or permanent residents.

In Australia, foreign workers have the same entitlements to pay and conditions as Australia workers do.

Your correct rate of pay may be determined by a legal document that contains your minimum rights and conditions. You may be covered by an award, an agreement or a contract of employment. These documents should contain a specific provision that sets out your rate of pay. If you are unsure which legal document is applicable, please contact your employer.

If there is no specific document which covers your employment, your minimum pay will be determined by Commonwealth laws. Along with the correct rate of pay, it is important to sure that you receive any applicable entitlements such as annual leave and sick leave.

What can I do?

You have 6 years to claim for underpayment of wages. It is important to know that you still have an entitlement to claim underpaid wages from a previous employer.

If you believe you are being underpaid contact your employer. It may be a genuine mistake on their behalf. You may resolve this matter by mutual agreement such as arrangement that involves back pay which may consist of a lump sum or a payment plan.

If your employer has been purposely underpaying you or will not remedy their mistake, you should submit a written request asking them to remedy the situation. If you do not feel comfortable writing this letter, you could contact a law firm and ask them to write this letter on your behalf.

If the written letter does not remedy the situation, you should contact the Fair Work Ombudsman (FWO). The FWO has the responsibility of ensuring that workplaces are complying with their legal obligations and that workers are receiving their correct entitlements.  The FWO can provide you with free information and advice.

Remedies

The FWO has the power to enforce your entitlement to the correct rate of pay. They may seek one or more of the following options:

• Your employer provides you with the correct rate of pay and/or any back pay.
• You and your employer may be required to attend mediation.
• They may provide your employer with an official causation letter and inform them that court action may be taken if they do not remedy the breach.
• Issue a fine.
• Obtain a court order against your employer to prevent future violations.
• Require your employer to enter into an enforceable undertaking. This is an agreement which admits liability and sets out the steps to remedy the contravention.
• Commence court action against your employer. This may result in your employer being liable for significant penalties.