Use the law to protect yourself in Australia

Pisco Sour

I wrote this blog a few weeks ago and have just realised that maybe it would be beneficial to people in Australia or moving there to have a read of it here. Theres a lot of dodgey chancers down here (like there is everywhere) who will try to illegally rip off backpackers. They cant be let get away with it. If you are being screwed over illegally use the law!!

Melbourne, Australia - Standing up to the Bullies

For the most part Australians are very friendly and welcoming people. They are usually always up for a bit of craic and are quite similar to the Irish in terms of their sense of humour and liking for a night in the bar. However this is not to say that everybody I have met in this wonderful country have provided pleasant encounters. What follows are two examples of how certain people down here try to con backpackers. But unfortunately for such people this particular traveller was not one to be fooled. Out of respect for the other parties involved I will not be mentioning their names here, not that they actually deserve such consideration.

First up, the landlords. Within a few days of arriving in Melbourne I found a place that I was happy to move into. The rent wasn't too expensive, I had my own room, all bills and Internet included, and situated very close to the trains and trams. However it didn't take me long to realise that the two landlords were not experts in the field of property management and were clearly on a get rich quick scheme. Anytime something broke in the house (a very regular occurrence) they were usually pretty slow about getting such problems rectified and would usually try to fob us off with some sort of nonsense. However regardless of the extremely poor maintenance I was starting to get nicely settled into my new accommodation and was prepared to put up with a lot of the landlords annoying habits. However, then disaster struck. During one February evening, out of absolutely nowhere, came severe flash floods which reduced Melbourne to chaos. Ok, it was nothing in comparison to the horrible scenes from Queensland that we have witnessed on our television screens, but at the same time it was the worst I had ever encountered personally. Three and a half hours were spent travelling home from work as a result of trams breaking down and after such a torturous journey I was greeted upon arrival with the most unwelcome gift of all - my room had got soaked!

Yes, while I was on my way home from work my room got flooded due to the heavy rain breaking through the extremely dodgy roof, soaking my bed and about 40% of the carpet in the process. The next morning I eventually got through to one of the landlords and proceeded to give him an earful and he quickly arranged for somebody to come around and fix the roof. However no consideration was given towards the wet carpet which was ever so quickly providing an ideal habitat for mould and bacteria to thrive. I made a request to have the carpet either cleaned or replaced, to which the landlord rather arrogantly stated that he fully intends to let the carpet dry naturally. Despite my many references to the room being unhealthy to live in under such conditions he stood firm and fully intended to do nothing about the problem whatsoever.

Enough was enough and I made the journey into Consumer Affairs Victoria to find out my rights with regards repairs. The very helpful lady informed me that I needed to fill out a non-urgent repairs request and if the problem wasn't attended to within 14 days then the landlord would be in serious trouble. I also found out that the deposit I had paid at the start of my lease had never been lodged with the Bond Authority, which is a serious offence under the Residential Tenancy Act. After I communicated this information to the landlord, he then proceeded to tell me that I would have to leave the premises within 28 days. He was basically trying to evict me simply because I was stating my rights. Something didn't seem quite right about all of this as a minimum of 60 days notice needs to be provided to a tenant when giving a notice to vacate for a lease of less than 6 months. Again I consulted Consumer Affairs, who informed me that everything they were trying to do was illegal. When I told the landlord this he then tried to evict me immediately "for my own safety" as the room was "not fit for human inhabitation". Unbelievable. This chancer kept changing his story every time I slapped him in the face with a piece of legislation.

At this stage I was well and truly sick of all the rubbish he was throwing at me and so I spoke with a representative in the complaints department. After informing him about the details of the case he then phoned the landlord regarding the various issues. According to the representative, the landlord was absolutely petrified and started to panic over the phone. He admitted that he knew that his reasons and methods for trying to evict me were completely illegal but that he was angry at the time and so wasn't thinking logically. To cut a long story short, within the space of a few days, I managed to turn an immediate notice to vacate into a brand new carpet and got my deposit lodged safely with the bond authority. Too many backpackers down here just accept what landlords tell them and are too afraid to state their rights and so settle for any sort of rubbish as a result. But in reality if people just stand up for themselves and use the law to their advantage, then chancers like these two guys do not have a leg to stand on.

If you think these guys were bad then wait for the next story. Upon arriving in Melbourne I was shocked at how expensive everything was here. The Euro was struggling badly against the Australian Dollar and so I needed to start earning local currency as soon as I possibly could. For this reason I accepted a poorly paid call centre job so I could stop living off the Euro and in the meantime look for a proper form of employment. I ended up lasting 5 weeks in this place (much to my own amazement). The rate of pay was 17 dollars an hour, but even stranger was the fact that instead of being paid as an employee under a Tax File Number (TFN), I was actually hired as a contractor on an Australian Business Number (ABN). Something seemed odd about this but for awhile I didn't bother questioning it. However after a few weeks my patience started growing thin with how dishonest everybody who worked within the organisation seemed to be, with most of the sales representatives, who are based in India, full on lying to customers in a pathetic attempt to make sales. The whole operation was nothing but a scam and after 5 weeks I was happy to leave.

The following week, myself and a friend from home, who was also working in this organisation, took a journey into the Fair Work Ombudsman to make enquiries about the work practices that were being adopted by this business. After discussions with two representatives we were informed that we should never have been hired as contractors but rather casual employees. To be a contractor you usually are required to dictate the hours of work, the rate of pay, write up invoices and provide your own materials to the place of work. None of this happened during my 5 weeks. I was trained to do a job that I was supposedly being contracted to do, I was told when to go on lunch, where to sit, when I could leave, if I needed to stay longer, and provided no materials to my place of work except for my brain.

We gathered all sorts of complex information from the Ombudsman for Fair Work. As a casual employee I should have been entitled to a base wage (16.58 per hour in this instance) plus 25% casual loading for a casual employee + 15% shift loading when a shift finishes between 7pm and midnight (which was about 90% of my shifts), along with 9% superannuation added on top of all this for good measure. Including superannuation my hourly rate should have been $25.30, a far cry from the $17 dollars I was being paid. Once all the information was gathered, myself and my friend carefully drafted a professional looking email stating all the facts behind this "sham contract" and attached a spreadsheet calculating the total amount we were each underpaid. Over the course of just 5 weeks I was underpaid by $1,157 and my friend was shafted over 8 weeks by an amount just under $2,000. In the email we gave them 7 days to provide us with a satisfactory response and to credit our bank accounts, otherwise it would be necessary for the Ombudsman for Fair Work to intervene on our behalf and investigate work practices within their organisation further. Lets just say the money was sitting in my account within 48 hours!!

It is known fact that backpackers get dreadfully underpaid in Australia but for some reason people just seem to accept this treatment and not bother to do anything about such injustice. Again people are too afraid to state their rights and easily get scared away when such employers mention that they will get their lawyers involved. The fact of the matter is that what these guys were doing to the two of us was highly illegal and like the landlords above had no leg to stand on at all. Now I have $1,157 extra in my bank account which will go along way towards my trip around the West Coast later in the year. More people should do the same.

I hope that by writing this blog that people who are thinking of moving to Australia over the coming months and years will be made aware of some of scam artists that exist and to not be afraid to exercise the law for ones own protection. It is there for a reason.

That's all for now.

ballooba

Nice of you to put your full name to your avenging crusades for anyone who might engage you in the future.

Slunk

Interesting regarding the call centre work. Myself and my gf are owed money from a company. Previously have just been paid via bank transfer. No tfn involved. I suspect from talking to other previous workers i will have a hard time getting what I'm owed.
Also is there a legal base wage they have to pay and did you sign a contract or was it more casual arrangement?
Any advice, be it here or via pm.

Pisco Sour

Slunk wrote: »

Interesting regarding the call centre work. Myself and my gf are owed money from a company. Previously have just been paid via bank transfer. No tfn involved. I suspect from talking to other previous workers i will have a hard time getting what I'm owed.
Also is there a legal base wage they have to pay and did you sign a contract or was it more casual arrangement?
Any advice, be it here or via pm.

I signed a contract but it wasnt legally binding as I should never have been a contractor on an ABN in the first place. Basically each type of job has an "award" which states the base wages that you are entitled to. For me that was the "Contract Call Centre Award 2010". It states what your base wage is supposed to be per hour and then if you are a casual employee you add 25% casual loading to that. If your shift finishes between 7pm and midnight then the entire shift gets charged at a further 15% on top of that.

How do you prove that you are casual rather than part time? Well if you dont get paid for public holidays, annual leave, sick leave them you are casual and so you should be paid casual loading to compensate for these lack of entitlements.

I'd contact the Ombudsman for Fair Work if I were you.

However if you are being basically being paid cash in hand with no TFN or ABN involved then that may complicate matters.

lg123

04072511, one of the best posts i have seen on boards.

Mellor

04072511 wrote: »

We gathered all sorts of complex information from the Ombudsman for Fair Work. As a casual employee I should have been entitled to a base wage (16.58 per hour in this instance) plus 25% casual loading for a casual employee + 15% shift loading when a shift finishes between 7pm and midnight (which was about 90% of my shifts), along with 9% superannuation added on top of all this for good measure. Including superannuation my hourly rate should have been $25.30, a far cry from the $17 dollars I was being paid. [/I]

Super isn't part of your hourly rate.
You shouldn't have been paid the 9% as wages, if got it afterwards congrats.

04072511 wrote: »

How do you prove that you are casual rather than part time? Well if you dont get paid for public holidays, annual leave, sick leave them you are casual and so you should be paid casual loading to compensate for these lack of entitlements.

The difference is part-time is a permanant position, casual isn't.

mandrake04

Mellor wrote: »

The difference is part-time is a permanant position, casual isn't.

Yeah I know a few people got stung by that, getting $40 PAYE on a WHV as casual and then after they got sponsored only got $28.

Not to mention all the lads who were getting good $40+ ABN and then went to PAYE for less that $30 ph because they got sponsored, of course they got paid holidays, RDO, Leave loading, sickdays, rained off days etc. But their bank balance was never the same.

Bit like that other thread where yer woman claimed the plumber was getting $1800 pw after tax, sounds really good .....but if theres no work, rained off, sick, holidays = NO PAY

Mellor

Just remembering that I had a casual job (which was basically 8 months full time) in 2009-2010 was never paid 25% casual loading. Too late to claim it back I'd say shame as its prob worth 7-10K or so

Pisco Sour

Mellor wrote: »

Super isn't part of your hourly rate.
You shouldn't have been paid the 9% as wages, if got it afterwards congrats.

The difference is part-time is a permanant position, casual isn't.

I'm well aware of that but as they werent paying superannuation on my behalf and due to the fact they should have been doing so, for the purposes of my underpayment calculation I included it, as it is something I am entitled to. I only included it in the hourly rate to show to people the "real" hourly rate I should have been getting, compared to the disgraceful 17 an hour they were giving me on an ABN.

mandrake04

04072511 wrote: »

compared to the disgraceful 17 an hour they were giving me on an ABN.

$17 hr ABN!!! At least Dick Turpin wore a mask.


Thanks for posting the warning, maybe other will avoid the same fate.

mandrake04

Mellor wrote: »

Just remembering that I had a casual job (which was basically 8 months full time) in 2009-2010 was never paid 25% casual loading. Too late to claim it back I'd say shame as its prob worth 7-10K or so

did you not get paid holidays, sick days/carers leave, 17.5 % leave loading etc? Then by law I think you should have got a casual rate as a compensation for not receiving your entitlements.

s.c

mandrake04 wrote: »

$17 hr ABN!!! At least Dick Turpin wore a mask.


Thanks for posting the warning, maybe other will avoid the same fate.

You think thats bad. Have a look at this one.

$80 a day ABN labouring. An absolute disgrace. You'd want to be fairly stuck for money.

mandrake04

was talking to a mate last night night who has been working in concrete for the last 8 years and he reckons that some lads came out on tourist visa's and gone illegal, he has been asked a few times lately does he know of any cash-in-hand work going.

Really any bloke in that situation could be taken advantage of.

Mellor

mandrake04 wrote: »

did you not get paid holidays, sick days/carers leave, 17.5 % leave loading etc? Then by law I think you should have got a casual rate as a compensation for not receiving your entitlements.

Nope.
It was a casual position. When I started I knew the workload was unknown, after 6 weeks, we got soem more, after 3 months some more. so i ended up there for 8 months.

I knew I wasn't getting sick days or holidays as I was casual. I accepted that tbh. I was never aware of the casual loading element.
At the same time, what's in place to stop the company reducing my base pay by 20% so that when the 25% is applied it is the same as the original offered? I wasn't near min wage so that could of happened tbh.
I was getting super obviously

brendansmith

lg123 wrote: »

04072511, one of the best posts i have seen on boards.

The best ever post on boards?.........Probably
The worst ever username on earth.............Very possible

mandrake04

Mellor wrote: »

Nope.
It was a casual position. When I started I knew the workload was unknown, after 6 weeks, we got soem more, after 3 months some more. so i ended up there for 8 months.

I knew I wasn't getting sick days or holidays as I was casual. I accepted that tbh. I was never aware of the casual loading element.
At the same time, what's in place to stop the company reducing my base pay by 20% so that when the 25% is applied it is the same as the original offered? I wasn't near min wage so that could of happened tbh.
I was getting super obviously

The award .......thats if your occupation comes under an award.

http://www.lawlink.nsw.gov.au/lawlink/irc/ll_irc.nsf/pages/IRC_procedures_legislation_awards_index_all

of course if you are a backpacker on a WHV its likely you dont know what the award is. The employer could offer you anything and you would just accept it.

mandrake04

Mellor I reckon you probably come under this award

http://www.lawlink.nsw.gov.au/irc/ircgazette.nsf/webviewdate/C6390?OpenDocument

with ammedment last year

http://www.lawlink.nsw.gov.au/irc/ircgazette.nsf/webviewdate/C7415?OpenDocument

4.2.3 Casual Employment



A casual employee is one engaged and paid as such. A casual employee for working ordinary time shall be paid one thirty eighth of the weekly award wage prescribed herein for the work which he or she performs, plus 15 per cent.

The award is determined by agreement within the industry, in your case the casual rate is +15%.

Mellor

Thanks mandrake, can't believe i never knew about that.
But what you said above is basically right, it was my first job, I was after doing 2 months travel and just took what they offered.


edit: I've had a look at from what i can see my hourly rate was higher then the base rate plus 15% for casual.
So prob didn't lose money, they likely took account if that in the casual rate. Kina glad too as I wasn't going to get it back over a year later. Luckily, i'm getting more in new job, inc leave, sick days, holidays*.


*Worth mentioning now, gettign 5 days off work because public holidays clash is great
Getting paid for it is even better

Pisco Sour

Moving away from the employer situation for a moment and back to teh landlords.

In early march I was given a 60 day notice to vacate. Its the minimum they could legally give me and if I wanted a reason I could request one, but I didn't bother as I am happy to find somewhere else. They blatently wanted me out because they are threatened by me and how much I know and how fragil their dodgey establishment is.

Anyway the notice to vacate ends on the 29th April by which time I need to be out.

Yesterday I found this amazing place. 650 a month (as opposed to 695 in this current hole), no bond required, all bills and internet included, and foxtel included. The place has basically everything you need, is clean, wooden floors, modern and my own fully furnished double room. Have no idea how I managed to find this place. I guess I was due a lucky break. I am filling in for a girl who needs to leave early so I am taking her place until the lease runs out in July (I plan to go travelling in July anyway so its perfect).

So I texted the landlord asking could I move out on the 18th. I have paid rent up until the 23rd and the last day I can possibly stay here is the 29th. To this he replied...

Hey, we can definetely try and find someone for that date but if we're not successful then we'll require rent until the 29th..
I then told him that I only have to give 14 days as the lease is periodic now that the original 3 month lease is up. To which he pathetically replied....

I'll have to have a read and get back to you on that

What follows is the remaining text dialogue. It is the best way of communicating. In person or over the phone he would try to bully me. Just a bit of extra information: The other night it rain heavily and again water cam ethrough the roof and dripped on my face at 5am waking me up. Not happy obviously with this situation I texted both landlords at this time telling them. Hope you enjoy :-)


Me: I can write up a letter for you now stating my notice to vacate if you want that? The letter will be dated 12th april 2011.

Me: Forget the last text. Section 274 - a resident must give the rooming house owner at least 2 days notice of intention to vacate the room occupied by the resident. S.3. - A rooming house means a building in which there is one or more rooms available for occupancy on payment of rent, in which the total number of people who may occupy these rooms is not less than 4. I believe there are 6 people here...

Me: Section 275 - a resident who vacates a room without giving notice must pay to the rooming house owner the rent for the lesser of the following periods a) 2 days after vacating the room or b) until another resident takes up occupancy of the room... no such worries as I will make sure to give you my 2 days notice as per previous text. I trust I will receive a refund for overpaid rent on the day I vacate and you will see the last of me. Just to let you know that a rooming house owner must not require a resident to pay rent more than 14 days in advance (s99) nor must not demand or accept a bond that exceeds 14 days rent (s96).

Me: Further to my last 2 texts yesterday, I was also never given a condition report when I paid my bond which is highly illegal. I have just called consumer affairs to verify all this information from these 3 texts. I didn't give them your name or anything but if I am not refunded all rent overpaid on the day I vacate the premises then I will be forced to report you. I trust you will deal with this matter using the sensible option.

Landlord: Mate both of us and your housemates would be happy to see you leave on the 18th and we will refund all rent and bond that is owed. Please make sure your room is vacuumed and free of all belongings by 10am on Monday so that we can do a final inspection. Furthermore can you please refrain from messanging me at all hours of the night and morning. Thanks

Me: Will have the room spotless. I'll provide you with the 2 days notice in the coming day or 2 when everything is finalised with my new place. If you provided a proper roof then there would be no need for me to text at such crazy hours. Or you could keep your phone off when you sleep (ok fair enough, this was a little cheeky, but pales in comparison to what they have said to me over the last 4 months). And I get on fine with the housemates, except ****, who steals everyones food.

Me: I am giving you at least 2 days notice that I intend to vacate my room on monday 18/04/2011. Please confirm that you have received this notice. If you requier this notice to be in writing please let me know. I cant meet you at 10am on monday as I have to work but am willing to begin work early if you would like to meet earlier in the evening at which time I will give you back the key, get you to sign the bond claim form, receive my overpaid rent back and tie up any other loose ends.

Landlord: This is sufficient notice. Unfortunately checkout has to be at 10am, unless you want to pay for an additional day. We have a paying tenant moving in that morning and he will require access to the room and keys..

Me: I'm pretty sure thats illegal and nowhere does it say you have to be out before 10am. However if you are willing to meet at 8.30am then I wont bother proceeding further with that.

Landlord: Yeh thats fine

Me: Thanks

So now instead of paying rent until the 29th, I only pay until the 18th, saving myself 11 days rent, equaling just over 250 dollars. This along with the 1157 dollars I got back for being underpaid at work shows clearly that using the law pays Seriously guys, dont let them mess you around.

P.S. No comments please saying that he could find all this written about him on the internet. Of course he wont!!

scouser82

04072511 wrote: »

Landlord: This is sufficient notice. Unfortunately checkout has to be at 10am, unless you want to pay for an additional day. We have a paying tenant moving in that morning and he will require access to the room and keys..

This is my favourite bit. Its like they are running sort of hotel establishment!

Pisco Sour

scouser82 wrote: »

This is my favourite bit. Its like they are running sort of hotel establishment!

Ha yeh! And they are still showing the room to people so saying that they had somebody moving in that morning is obviously such bullsh1t, along with everything else they have ever said!