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Secret recording of my employer- legal?
Topic: Secret recording of my employer- legal?
Posted: 11/April/2018 at 04:47
I live in Perth, WA. I moved here about 1 1/2 months ago and I started a job at a fast food restaurant about 3 weeks ago.
The job is a family run fish and chip shop, ran by a husband and wife from china. They employ mostly high school and uni students. I just moved from America and this was the first job I could find so I took it.
Upon starting the job, my boss specifically said that she didn't want to discuss my pay yet and that I should work first. This seemed very sketchy to me, but to be quite honest I was just desperate for any kind of job so I didn't want to jeopardize the only job I had at the moment by arguing over why I wasn't allowed to discuss my pay yet.
I was told I needed to complete an unpaid trial with them- fine. They had me come the next day and had me work about 5 hours. I was doing actual work, not shadowing anyone. They quickly explained what was needed to be done and had me work on my own for the most part. I wasn't added on to the roster as an additional worker/trainee, but rather it was just me and one other employee working under the manager; so I was basically working a shift in place of another employee.
They tell me to come in the next day to work and I did. They said it would be another free trial. Not being from Australia, I thought the whole free trial thing was normal. It is apparently, but there are rules and regulations on it and one of the main ones is that a free trial is only one day, directly supervised, and shadowing an employee as opposed to working in place of one. At the time, I didn't know this so I just did what I was told and showed up for the second unpaid trial and worked that shift. I was told to come back again to work 2 days from then, and I was told it was actual work this time. I showed up to work, worked my shift and asked what my pay was. The boss said he had to talk to his wife and that he didn't know. When I asked the wife (my other boss) she said she would discuss it with me at a later time. They kept avoiding it.
The following Monday I was scheduled to work a shift. At the end of that I was given a clock in/clock out sheet. I asked why I wasn't told about/given it on the day I worked the week before and they said it was a third unpaid trial shift. That is NOT what they told me leading up to, during, or immediately after working that shift. I was really upset but I let it slide. I asked them when they needed to collect my information such as my TFN in order to pay me, and they said they don't need it because they pay me cash. I'm not sure how Australia works, but as an American that seems very sketchy "under the table" work to me. Not what I agreed to.
I started getting very frustrated and suspicious and I finally demanded to know how much I was getting paid.
The boss finally told me I am getting paid $12 an hour.
I am an over 20-year old, casual fast food worker in WA. The legal minimum wage for those conditions is $25.10 an hour. Not to mention that the bare minimum wage for any industry in Australia is $18.29. Regardless, I was getting very underpaid. I was very angry and after being told I was getting paid for working one shift and then found out I wasn't getting paid- I began researching a bit. I found out that the whole unpaid trial thing they did with me was unlawful- not just the conditions of it but also the length of it. An unpaid trial is only supposed to be one shift, but it's typically only an hour or so. I worked 3 shifts unpaid (which I didn't fully agree to.) and they even kept me after hours to clean up and everything. So not only was I getting underpaid but I wasn't even getting paid for days where I should have! Doing the math, I should've received a MINIMUM of $351 for the hours I worked in the two weeks, and they tried to pay me $36.
Yes, thirty six dollars.
I went to speak with my boss (the wife) today and addressed my concerns with her. She said that's simply how she pays, $12 an hour, and said that that's high considering she pays most of the people about $10. I told her that was illegal, and she back peddled and started to plead ignorance. She said how she's not from this country so she doesn't know and it's not fair that I'm "getting upset" with her and that it's not her fault. She then stated how me coming in to speak with her about this at her restaurant is "bad on her business and makes her look bad" when I never once yelled or caused a scene. She then changed her story up completely and said that I "agreed to work 2 weeks for free" WHAT? Never have I EVER or would I EVER agree to that! Who would? Not to mention its again, illegal. Unless I was volunteering instead of being an actual worker, but that's not the case.
Not to mention, she said I agreed to work 2 weeks for free, but my paycheck of $36 was for my second week of work since I wasn't paid for my first week. So if I allegedly agreed to work for free that week, why do I have a paycheck for it? (Albeit a very underpaid paycheck, but a paycheck nonetheless.)
The turning point of this entire conversation was when her husband started yelling at me and said that this was all my fault (go figure) and saying "go ahead and report us, I don't care. This is your fault! You agreed to 2 weeks for free!" Which, again, I never did. Not to mention that I never was given/signed any sort of papers WHATSOEVER.
At this point, I pulled out my phone and started recording without them knowing. They were constantly changing their story and making excuses so I wanted to have a recording so I could have proof in case I needed it. I started with a video recording and showed my boss and our surroundings (this occurred in the restaurant lobby and also outside the restaurant in front of the mall parking lot area). After my phone ran out of space I proceeded to just record audio only.
My boss then indirectly fired me(?) by saying something along the lines of "I was excited to have you here and thought you'd be employed here for a long time but now I'm not so sure that we should do that."
My boss said she is getting a lawyer, but It's their word against mine. I know that the recording I have would help because it has them admitting to underpaying me, them making many excuses, them saying it's my fault, saying I agreed to 2 weeks of free work (when that wasn't their story to begin with AND I had them confirm very clearly that the paycheck I was given was for the second week of work, which means I was infact meant to get paid.)
I recorded all of this without their knowledge and I'm positive it's more than enough to prove their fault, but I have just been informed by a friend that he thinks it may not be allowed to record others.
I did a brief Google search but I cannot find any clear answers so I thought it would be good to explain the entire story and ask what the law is for recordings in this case scenario. Also, if anyone has any legal feedback on the situation as a whole I would also appreciate that. Being new to the country I'm not extremely familiar with the laws. Things seemed a bit sketchy from the beginning but being a 21 year old who just moved across the world on her own, I needed to take any job I could get, no questions asked, to afford my rent. Also, I didn't assume that they would break the law so I reassured myself that my skepticism was just me being silly.
Thank you for reading, I apologize for the massive novel. I just wanted to provide all the details so you all could get the best possible understanding of the specific situation. Thank you.
|Quote Reply Posted: 11/April/2018 at 22:55|
It appears your employer was clearly breaching the law in a number of areas..
You can contact fairwork.gov.au...
There you can see if there are any options to pursue the underpayment or you can make an Anonmunous Report
The ATO would also take a very dim view of off the book cash payments if you want to report the business to them..
As for the recording, there is nothing wrong with recording a conversation for the purpose of making a written transcript of what was said. That is what you recorded it for right?
Don't publish or share the recording except with a legal representative or someone in authority involved with the case should they ask..
Any opinion given should not be accepted as legal advice.
Please post your legal questions in a forum rather than sending a PM. Thanks
|Quote Reply Posted: 12/April/2018 at 15:27|
Great advice from jaazz.
Go get em Raine - what they are doing is illegal. Fairwork will chase up unpaid money to you, as well as issuing fines to the owners.
|Quote Reply Posted: 13/April/2018 at 14:31|
How many people present when you made the recording ? If more than two persons then i think it it is deemed not to be a private conversation [thats in NSW ] so you should be o.k. there
Your employer said she is getting a lawyer.....he he ...good because she will need one..
Edited by henri - 13/April/2018 at 14:33
|Quote Reply Posted: 15/May/2018 at 12:01|
A little late but may still be of assistance:
The WA legislation regarding the recording of private conversations is covered under the Western Australia SURVEILLANCE DEVICES ACT 1998.
(You'll need to copy and past this into your browser as I cannot figure out how to make the URL tags work?)
Under Section 5(1)(b) you we read that unless an exception applies then you are NOT permitted "to record a private conversation to which that person is a party".
However,there is an applicable exception. . .
Section 5(3)(d) states a principle party to a private conversation IS permitted to record the conversation without the other parties consent if:
" reasonably necessary for the protection of the lawful interests of that principal party".
Since you only started recording 'after' you became aware a lawful interest needed protecting you would appear to have a sound reason for having made the recording.
It would be hard to imagine you having any issues in using your recording as evidence against your former employer.
Assuming you have not already then I sincerely hope you take the matter to FairWork as this type of treatment is simply not acceptable.
Edited by Diesel1 - 15/May/2018 at 12:05
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