Explainer: Can your boss sue you for fighting for proper wages?

A Melbourne cafe made headlines last week for alleged underpayment of staff and threats to sue. It may be common in hospitality, but what laws are at play here?

Last week a Melbourne cafe, Barry, joined the long long list of employers under fire for accusations of underpayment.

To recap: it was revealed that employees at Barry were underpaid by around $5/hour and didn’t receive any penalty rates. A picture of the, shall we say, spartan contract circulated which detailed the agreement:

The employees who came forward now claim they have had their shifts indefinitely cut, and after protests followed, the cafe owners have reportedly threatened to sue their workers for harassment. The circumstances are not unique — as a glance at the Fair Work Ombudmsan media releases will tell you — but for workers, Barry is a particularly useful box-checking exercise, for figuring out your rights at work.

Can I sign away my minimum wage?

Nope. Under the Fair Work Act any agreement to conditions below those set in the National Employment Standards or the applicable award has no effect.

A workforce (usually with the help of a union) can negotiate a collective agreement that varies those conditions but it must be assessed and registered with the Fair Work Commission, who assess it against the relevant conditions and makes sure the affected employees are not worse off. Although, the last few years has shown this system to be far from foolproof.

Can I get paid in food?

Nope. You can’t be paid “in-kind” — not in goods, services, lodgings, food, nor fawning or flattery. It has to be those real-life dollarydoos, that hardcore scratch, that real-time moolah.

Can I get fired, or lose shifts if I ark up about my pay?

Nope! The Act sets out certain protected workplace rights and you can’t be disadvantaged if you exercise them. They are wide and varied (taking in freedom of association, freedom from discrimination) but they include “the capacity under a workplace law to make a complaint or inquiry”.

Thus Barry staff have the right to enforce their minimum conditions without suffering what the Act calls adverse action — for example losing shifts, or being fired, or being coerced with the threat of legal action. Like a lot of employment law, it’s great in theory, but hard to prove; how can you illustrate what was in your employer’s heart when they cut back your shifts?

But can they sue you?

Harrassment, the word used in Barry’s email to their staff, is like bullying — there is a colloquial understanding that doesn’t necessary reach the legal definition. Whether this is a clumsy misuse or not, as it happens there is currently no Commonwealth harassment act, nor an established civil cause of action for harassment established by the courts. That a harasser has trespassed, or committed assault or nuisance has to be established.

The email says the “harassment” is hurting and devaluing the business — however as a company, Barry cannot sue for defamation.

This is an edited version of an article that was first published by Crikey.

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