Underpayment is the most common employment problem people describe to us, and the one they are least likely to get help with — because the amount often feels too small to justify a lawyer. That calculation is worth revisiting, because the numbers are usually bigger than people think once the whole period is added up.
What you might be owed
Underpayment is rarely one obvious shortfall. It is usually several small ones running for years. The common ones:
- The wrong base rate — paid under the award minimum, or classified at too low a level for the work you actually do. Misclassification is the single biggest source of large underpayments.
- Penalty rates not paid — weekends, public holidays, evenings, early starts.
- Overtime not paid, or absorbed into a salary that doesn't actually cover it.
- Allowances — tools, travel, laundry, first aid, meals, higher duties.
- Superannuation not paid, underpaid, or paid on the wrong earnings base.
- Annual leave loading, and leave paid at the wrong rate.
- Unpaid time — unpaid trials, handover, opening and closing, compulsory meetings, time spent in uniform before clock-on.
- Final pay — accrued annual leave, notice, and any redundancy entitlement.
Accrued annual leave is a debt, not a favour
One point worth knowing if your employment ended badly: accrued but untaken annual leave must be paid out when you leave, whatever the reason you left. It survives an allegation of serious misconduct and it survives the employer's belief that they were right to sack you. It has already accrued — it is a debt, not a benefit that can be forfeited.
How far back you can go
Six years of a $60-a-week shortfall is a little under $19,000 before interest. That is the arithmetic that changes people's minds about whether it is worth pursuing — the weekly number feels trivial, the six-year number does not.
Interest can be awarded on top, and separate civil penalties can be imposed on the employer — those are punishments for breaking the law, and are additional to paying you back.
The records rule — the thing that makes these claims winnable
Employers must keep prescribed employment records and issue payslips. Where an employer has failed to do that and cannot produce the records, the law reverses the position: if you make a specific allegation about what you worked and what you were owed, the employer has to disprove it.
The practical consequence: your own records matter enormously, and they do not have to be perfect. Diary entries, rosters, photographs of a whiteboard, text messages arranging shifts, bank statements showing what actually landed — all of it counts, and a specific, honest reconstruction is far better than a vague one.
Ask for your records first
You are entitled to your own employment records. Asking for them in writing is a sensible first step: either you get them, and can calculate the shortfall properly — or you don't, and the failure to produce them strengthens your position.
Who else can be on the hook
This surprises people, and it matters when a company has no money. Liability is not limited to the employing entity. Someone who was knowingly involved in the contravention can be personally liable — that can include directors, managers, HR staff, payroll providers and outside advisers.
If your employer has gone into liquidation, that changes the route but does not always end it. Some entitlements may be recoverable through the Commonwealth's Fair Entitlements Guarantee, and accessorial liability may reach people who still have assets.
Your options, and what each is good for
| Route | Good for | The catch |
|---|---|---|
| Ask the employer directly, in writing | Small, clear-cut errors | Only works if they agree; puts them on notice |
| Fair Work Ombudsman | Free; clear award breaches | They choose what to pursue; can be slow; won't run your case for you |
| Small claims procedure in the courts | Amounts under the statutory cap; quick and informal | Capped; limited procedure; less suited to complex classification disputes |
| Full court proceedings | Large or complex claims; penalties; accessorial liability | More expensive and slower — but costs protections apply to wage claims |
What to do now
- Work out which award or agreement covers you, and which classification level your actual duties fall under. This is where most of the money is.
- Gather what you have — payslips, bank statements, rosters, timesheets, contracts, any variation letters.
- Request your employment records in writing.
- Reconstruct the period as specifically as you can, week by week, even where records are missing.
- Add it up across the whole six years before deciding whether it's worth pursuing.
Do not let the weekly figure decide it for you. Work out the total first.
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