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Employer underpaying, not paying super

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Hi all.  Just after advice and past experience with an employer not paying award rate, not paying super and not paying for minimum work per shift. 

The situation currently is that I have been working at a private studio as a casual employee for nearly 18 months. They poked the bear 7 weeks back by taking shifts off me when they asked me to do them.   To do this I turned down other work,  then after 2 weeks doing this the shifts were taking off me no explanation and when questioned made a lame excuse.  So this lead to some investigation into the industry laws.   

This showed the following I am meant to be paid as a level 5 trainer $25.34 as base then as I am casual there is 25% loading for weekdays and 30% for Saturday's.   I was been paid $28 for first nine months then $29ph.  So it basically $2.50-4ph less then award rate.  

Also by the act I am required to be paid for 3hrs per shift that I start,  there are many occasions where I only get paid for b/n 1-3.  

The next one is they have not been paying super to me.  I earn more then the limit per month.  

I spoke to owner about the 3hr thing when discussing some shifts that were short and the new trainer was getting more then me.   He said "**** the law" as a response  

I have spoken to fairwork who advised me to work how much they owe me and put this to them.   I require work schedules from the past 18months so can calculate Saturdays, short shifts etc. Now if I ask the employer for this how are they going to respond.  

Fairwork also said contact ATO for super info.  

I signed an agreement which I mentioned to fairwork which the gym put together (they set own pay scale not by the law) .  Fairwork then asked me their ABN and they checked to see if they had acknowledgement of the agreement, they didn't,  it had not been lodged.   Seeing that they are not paying the award rate is the main reason why.  

If I approach them with this they will just reduce my hours to zero as if they sack me then it would be unfair dismissal.  

Any advice previous experience with this please let me know

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Shit position to be in, but you would be far from the only one to experience such practises.  Tonnes and tonnes do.  Many employers would be relying on the fact many need the job more than the employer thinks they need you.  Odds are they will give you no records of your employment shifts over the last 18 months.  That's up to you to keep a record of, including all your pay slips.  When push comes to shove they may dismiss you (or suddenly give you no shifts) and you can file an unfair dismissal claim, and they could be forced to take you back, but would you want to?

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They will continue to screw you for as long as you allow it, so you need to be looking for a new job while calling in the ATO dogs to sort them out on the unpaid super. Unpaid GST can be paid on a negotiated installment plan, but the ATO treat unpaid super as a serious issue and will leave the employer with few options other than pay it immediately.

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17 minutes ago, XCOM.! said:

They will continue to screw you for as long as you allow it, so you need to be looking for a new job while calling in the ATO dogs to sort them out on the unpaid super. Unpaid GST can be paid on a negotiated installment plan, but the ATO treat unpaid super as a serious issue and will leave the employer with few options other than pay it immediately.

Am looking for another place.   Have not mentioned it to them yet

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Ask if you can get a record of all your shifts since you started, because you have a tax audit.

The reaction to that, which I suspect will be negative will tell you all you need to know.

(Side note: As a casual, make notes on all your times personally, it sucks, but in a casual industry with easy access to labour, don't expect the boss to look after you.)

At worst, make an estimate of your times/amounts owing and submit that to fair work.

If you can put together an estimate, then figure out if it's worth chasing as you try to find alternative work.

From what you've posted, they will drag it out and it will be time consuming,  probably costly and emotionally hard for you to chase.

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This whole situation is one of my major gripes with the government. Scott Morrison goes on and on about creating jobs and this is a prime example of what some employers will do, knowing that people are desperate for employment and, especially the young, won’t even check there award or super fund thinking there employer is honest. If you say or question anything they just cut your shifts and hire someone else.

 I blame John Howard.

I hope you get a positive outcome, good luck.

Edited by fiftyplus
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The thing that's different with Superannuation Guarantee contributions and PAYG tax is that company directors are personally liable for any outstanding amounts. Directors can't just wind-up a company and walk away from these as they can with GST and unpaid wage entitlements - directors can be sent personally bankrupt the same as sole-traders/partners, and this is a financial threat most would want to avoid.

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Sorry to hear Andrew, that is really shit.

If it were me, I'd not be rocking the boat until you have alternative work lined up & try not to let on that you are seeking info to support your case (which might be tricky).  Look after yourself first. cos these dicks have not.

Once that is secure, I'd be burying the prick via Fair Work, the ATO etc.

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It’s pretty common to not pay sg, all you can hope for is an sg audit and that way you will get a voucher for unpaid contributions that you can give to your fund. Make a complaint to ato however if it sends your employer to the wall the. You may have no job and then no one really wins

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10 minutes ago, chris said:

It’s pretty common to not Make a complaint to ato however if it sends your employer to the wall the. You may have no job and then no one really wins

It's only common for dodgy businesses, and those that shouldn't be operating.

If you don't complain then you are not going to get paid, and if the concern is that if you do complain you will lose your job... then why should the employee give a f* if the ATO sends them to the wall for not paying SG?

As mentioned previously, directors are personally liable for SG and PAYG (sole-traders and partners are obviously also personally liable) so if the money is there, the ATO will ensure it gets paid, and if it's not there, you were never going to get it anyway.

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I'm sure @Prince will have some advice from an HR point of view.

I'll come at it from the other side as an owner a small business back in the UK we had an issue with a staff member who claimed he was owed extra holiday but wouldn't show us the calculations he had used to get to the point. We ended up going backwards and forwards for months with him just being difficult and seeming to want to make a point by making our lives complicated and raising all sorts of threats about who he was going to take us to etc.

I'm not saying that is the case here at all but if he had sat down with us, showed us his calculations and explained how he wanted us to rectify the situation (turns out we did owe him an extra three days of holiday) then we would have happily paid him and carried on from there. In the end the relationship broke down so far that he left, with his three days of extra holiday but then continued to cause issues moving forwards for a while. Additionally he got no character reference from us and this meant that he couldn't get a security clearance for a later role. 

If the employer has already taken the stance of "**** the law" then you have little room for manoeuvre but I would still say that your next step should be to lay out in a letter what you believe the situation to be, what information you need to sort it out and what your ideal resolution would be. 

Give them a reasonable amount of time to respond and only then would I escalate it further.

If they do reduce your hours to zero then I believe you would have grounds for constructive dismissal (i.e. they changed the terms of your employment to the point that you had no choice except to resign) but I'm not entirely sure how that plays in Australian law.

In the UK we have two services, the Citizens Advice Bureau which is there to advise people on money issues etc. but is not a statutory authority and also ACAS which is the Advisory, Conciliation and Arbitration Service which is designed to settle disputes between employers and employees. I'm not sure if you have the equivalent here but a similar option might be good as getting somebody like them involved is less confrontational than the ATO or Fair Work.

If it all fails though the director of the company is personally liable for SG.

Edited by monkie

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8 hours ago, Fitness Buddy said:

signed an agreement which I mentioned to fairwork which the gym put together (they set own pay scale not by the law) .  Fairwork then asked me their ABN and they checked to see if they had acknowledgement of the agreement, they didn't,  it had not been lodged.   Seeing that they are not paying the award rate is the main reason why.  

What was the agreement you signed? 

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9 hours ago, Fitness Buddy said:

Hi all.  Just after advice and past experience with an employer not paying award rate, not paying super and not paying for minimum work per shift. 

The situation currently is that I have been working at a private studio as a casual employee for nearly 18 months. They poked the bear 7 weeks back by taking shifts off me when they asked me to do them.   To do this I turned down other work,  then after 2 weeks doing this the shifts were taking off me no explanation and when questioned made a lame excuse.  So this lead to some investigation into the industry laws.   

This showed the following I am meant to be paid as a level 5 trainer $25.34 as base then as I am casual there is 25% loading for weekdays and 30% for Saturday's.   I was been paid $28 for first nine months then $29ph.  So it basically $2.50-4ph less then award rate.  

Also by the act I am required to be paid for 3hrs per shift that I start,  there are many occasions where I only get paid for b/n 1-3.  

The next one is they have not been paying super to me.  I earn more then the limit per month.  

I spoke to owner about the 3hr thing when discussing some shifts that were short and the new trainer was getting more then me.   He said "**** the law" as a response  

I have spoken to fairwork who advised me to work how much they owe me and put this to them.   I require work schedules from the past 18months so can calculate Saturdays, short shifts etc. Now if I ask the employer for this how are they going to respond.  

Fairwork also said contact ATO for super info.  

I signed an agreement which I mentioned to fairwork which the gym put together (they set own pay scale not by the law) .  Fairwork then asked me their ABN and they checked to see if they had acknowledgement of the agreement, they didn't,  it had not been lodged.   Seeing that they are not paying the award rate is the main reason why.  

If I approach them with this they will just reduce my hours to zero as if they sack me then it would be unfair dismissal.  

Any advice previous experience with this please let me know

ATO will look into all allegations of unpaid super and will not disclose to the employer  what brought about the review.

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Having been involved in undertaking tax due diligence reviews for heath clubs before, seeking to treat their trainers as “independent contractors” is not unusual either.

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13 hours ago, Turts said:

What was the agreement you signed? 

One they have made up.   I went through word for word it even has a section on superannuation as benefit working there. 

I spoke to fairwork regarding this and they said they need to sign off agreements employers make with employees.  They didn't do this because they want their own pay scale.  

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13 hours ago, trilobite said:

Having been involved in undertaking tax due diligence reviews for heath clubs before, seeking to treat their trainers as “independent contractors” is not unusual either.

They are still liable for SG if they primarily pay the contractor for their labour (I found this out to our disadvantage and had to make some back payments!).

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FB, there are 3 issues here:

If you have been "casual" for 18 months, you are not casual.  You should be permanent and getting paid for public holidays, sick leave, annual leave etc.

This then takes away the casual loading, so it affects the rate of pay you are being paid.  Look into this

The super is a big issue, this needs to be paid at a minimum 4 times a year.

As a permanent, they can't sack you over taking a fair work or asking about the super.  Most likely they will, however this will not be viewed favourably by the Fairwork Commissioner in an unfair dismissal claim.

So go to Fairwork, put in a claim about your employment status (trust me on this) and the rate of pay together.  Either way if your facts are spot on you will get money.  (Up to you if you want to do this now, or wait for another job, but read on)

Go to the ATO, put in about the super.  You should be paid the super and there will be interest and possibly a penalty.  The ATO will likely go through the books of the business looking for other non-compliance as a result.

If they sack you, go them for an unfair dismissal - or do it if you take on a lesser role in the meantime and say it was constructive dismissal.  If you can show regular and systematic hours over the 18 months, they don't stand a chance.  Fairwork will try for reinstatement, however most employees do not look for this.  In a case where you were sacked for blowing the whistle, they would likely be required to pay you lost wages.  If you have an income in the meantime this would reduce the overall amount they need to pay.

"Employers" like this shit me no end, and I hope you can go them so they realise they can't be treating others like crap.  I hope for every case publicised, 2 other employers decide the risk is not worth it.

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1 hour ago, Cottoneyes said:

FB, there are 3 issues here:

If you have been "casual" for 18 months, you are not casual.  You should be permanent and getting paid for public holidays, sick leave, annual leave etc.

This then takes away the casual loading, so it affects the rate of pay you are being paid.  Look into this

The super is a big issue, this needs to be paid at a minimum 4 times a year.

As a permanent, they can't sack you over taking a fair work or asking about the super.  Most likely they will, however this will not be viewed favourably by the Fairwork Commissioner in an unfair dismissal claim.

So go to Fairwork, put in a claim about your employment status (trust me on this) and the rate of pay together.  Either way if your facts are spot on you will get money.  (Up to you if you want to do this now, or wait for another job, but read on)

Go to the ATO, put in about the super.  You should be paid the super and there will be interest and possibly a penalty.  The ATO will likely go through the books of the business looking for other non-compliance as a result.

If they sack you, go them for an unfair dismissal - or do it if you take on a lesser role in the meantime and say it was constructive dismissal.  If you can show regular and systematic hours over the 18 months, they don't stand a chance.  Fairwork will try for reinstatement, however most employees do not look for this.  In a case where you were sacked for blowing the whistle, they would likely be required to pay you lost wages.  If you have an income in the meantime this would reduce the overall amount they need to pay.

"Employers" like this shit me no end, and I hope you can go them so they realise they can't be treating others like crap.  I hope for every case publicised, 2 other employers decide the risk is not worth it.

Thanks.  

I recently emailed then whether I was casual or part time.   Their reply was casual.   I have worked the same shifts for 18 months?  

On their pay rate scale part time is worth more per hour then casual and full time is more again.   Backwards to how it really works.   I think they have got away with it for 5 years.  

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15 hours ago, Fitness Buddy said:

Thanks.  

I recently emailed then whether I was casual or part time.   Their reply was casual.   I have worked the same shifts for 18 months?  

On their pay rate scale part time is worth more per hour then casual and full time is more again.   Backwards to how it really works.   I think they have got away with it for 5 years.  

you have to ask to be a permanent employee as they won't just make you one. Many employees often don't want to be permanent. AS for their agreement, when it goes to fair work, they assess it by the BOOT test (better of overall), which means the employee must be 'better off overall' under its conditions the the award.  Based on what you have said, it would be unlikely to pass this test, as i don't know how they can justify a lower rate for a casual the a permanent. 

If you ever put in a claim against them, the claim would be used on the award as no agreement has been ratified. 

 

as for Super, the tax office will definitely send your employer a please explain letter. 

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7 hours ago, Prince said:

you have to ask to be a permanent employee as they won't just make you one.

Time to update your knowledge Prince, Workpac V Skene demonstrated that if you work for an extended period as a casual with regular and systematic shifts, you are permanent.  The onus is on the employer to cease the employment relationship and keep the casual relationship of a short and irregular nature.  Anything over 12 months in ordinary circumstances is not going to pass the test

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7 hours ago, Cottoneyes said:

Time to update your knowledge Prince, Workpac V Skene demonstrated that if you work for an extended period as a casual with regular and systematic shifts, you are permanent.  The onus is on the employer to cease the employment relationship and keep the casual relationship of a short and irregular nature.  Anything over 12 months in ordinary circumstances is not going to pass the test

yes, the responsibility is for the employer to always review the employment relationship of a casual at all times, however,  if the employee wishes to be considered for full time or part time employment, they must request so in writing after the 12 months, or nothing will change. The employer could still refuse, however, if it is consistent hours and roster, over this period, they would be in breach.  The case you mentioned was only brought to fair work's attention due to this employees dismissal. 

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Young people should really join a Union for these sort of situations. My 19 year old daughter and her colleagues were shafted by a Newsagent owner who thought he could ignore penalty rates for sundays because "it's my business". When they complained he flew a relative in from overseas and had him work all the Sundays. The cousin was in his mid 30's compared to 15-16 year olds.

Now she works for a largish hotel group. She is working from 10am until 10pm today which they have split up into separate shifts so they don't have to provide a paid break. They also bung on 2 hour shift.

In 2/3 paid jobs she's had she has been subject to illegal employment practices.

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But unions are the big bad that will **** Australia!

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Ok so hows this one, then. My youngest daughter (17 yo) is doing some volunteer/work experience with a dog trainer. She has impressed the owner and has subsequently been offered dog minding work. First one was looking after 3 large dogs at owner's home from 8am to 6pm for $30. The other was 6pm, stay overnight at dog owner's house for $30.

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4 hours ago, goughy said:

But unions are the big bad that will **** Australia!

I think there’s a middle ground somewhere between making sure people get their super payments and getting train drivers paid 6 figures for operating a vehicle that you can only accelerate or stop...

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9 hours ago, Parkside said:

Young people should really join a Union for these sort of situations.

In my experience, it is the union delegates in the workplace that help the most with these, the paid union officials are next to useless for individual cases  

Having said that Retail and hospitality are some of the worse for workers to be taken advantage of, and also the worse paid to be asked to fork out over $1000 a year in union fees.

Possibly the solution is instead of say Religious education and other equal wastes of time, schools actually taught some real life skills to educate the workforce of their rights and responsibilities - who knows they might actually work out how not to get ripped off by the financial institutions as well in the process

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33 minutes ago, Cottoneyes said:

In my experience, it is the union delegates in the workplace that help the most with these, the paid union officials are next to useless for individual cases  

Having said that Retail and hospitality are some of the worse for workers to be taken advantage of, and also the worse paid to be asked to fork out over $1000 a year in union fees.

Possibly the solution is instead of say Religious education and other equal wastes of time, schools actually taught some real life skills to educate the workforce of their rights and responsibilities - who knows they might actually work out how not to get ripped off by the financial institutions as well in the process

SDA is $350 if you work 10-20 hours a week.Max is about $500. Tax deductible but even still would not be that attractive to an 18 year old Uni student. I remember we had compulsory membership when I worked at Woolies in 1985.

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38 minutes ago, Cottoneyes said:

Possibly the solution is instead of say Religious education and other equal wastes of time, schools actually taught some real life skills to educate the workforce of their rights and responsibilities - who knows they might actually work out how not to get ripped off by the financial institutions as well in the process

Exploitation of junior and casual employees is an epidemic. My daughter educated herself and stood up for herself. She was constructively dismissed by getting inadequate shifts and found a better job. Unfortunately this employers behaviour is now playing out on newer, younger staff. 

It's all well to now your rights and responsibilities person as a young, but when your boss blatantly takes the piss out of Fairwork rules and threatens your employment a lot of young employees just shut up and don't rock the boat. Heaven forbid you were an international student or here on a work visa. Then the unscrupulous employers can just about enslave you and hold your passport, visa or job over your head.

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Tax deductible is not an attraction (or benefit) for those with income in the low $20Ks or lower.  Compulsory unionism is gone in all but the construction sector, and there is a reason why it is lower than 8% participation rate in some industries.  The union guys come to our work and want to bleat on for an hour about domestic violence and freeing the refugees, no time at all spent discussing the issues that directly affect the members in the room

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Not compulsory in construction either, certainly not in NSW anyway. 

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2 minutes ago, Parkside said:

Exploitation of junior and casual employees is an epidemic.

It's not just the juniors and casuals.  I see cases in senior work as well, told the AMNF about a nursing home where my wife worked for a few weeks before getting out.  The staff there were told to stand next to the aged home patients while they smoked, not just to take them to the smoking area, but explicitly directed to stand within an arms reach of them while they smoked.  The AMNF still has done nothing despite it being a clear violation of OH&S laws, and having a number of members working at the home. 

So tell me again how paying money to a union helps?

PS, I hate these employers immensely as well, everyone of them causes tightening of the laws which makes it harder for everyone.  And that's on top of the injustice issue...

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3 minutes ago, roxii said:

Not compulsory in construction either, certainly not in NSW anyway. 

There are sites in Vic where it is, not all of them but some tradies who are employees need to have it to work on certain sites

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Latest update.   Have secured a new job possibly two.   

Now the next is to present them with a letter.  

Any advice on how to pen it 

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My advice would be an email (trackability) to them asking them to review your remuneration.  Keep it dot point after that stating that your research from https://www.ato.gov.au/business/super-for-employers/ shows you should have been getting paid super for hours worked, that from the award you believe you have been underpaid by x, y and z (most of your points from your original post will be fine).

It is not up to you to work out how much they owe you at this stage.  The requirement is on the employer to keep records of your time (it pays for you to keep these records as well though to make sure they are not short changing you) and to accurately work out the correct payments in line with the legislation.  

When they reply, ask them to put it in writing or email. Advise them any verbal response that is unsatisfactory for these matters and will be taken as not replying.  Going to higher authorities is not a threat now, it is a real course of action and the Ace in your pocket 

Give me a yell if you want any help

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On 25/04/2019 at 7:40 PM, Cottoneyes said:

Tax deductible is not an attraction (or benefit) for those with income in the low $20Ks or lower.  Compulsory unionism is gone in all but the construction sector, and there is a reason why it is lower than 8% participation rate in some industries. 

I've been a member of two different unions and was screwed over by both of them. The first threatened to black-ball me when I raised some obvious disparities in wages, the other threatened to black-ball our company because we wouldn't go on a general strike for a wage increase our company had already paid.

The concept of unions is great and it would be nice to think they really care for the workers. I wouldn't count on it though, far too much self-interest in the leaderships to ever worry about the actual workers.

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On 22/05/2019 at 10:57 AM, Cottoneyes said:

My advice would be an email (trackability) to them asking them to review your remuneration.  Keep it dot point after that stating that your research from https://www.ato.gov.au/business/super-for-employers/ shows you should have been getting paid super for hours worked, that from the award you believe you have been underpaid by x, y and z (most of your points from your original post will be fine).

It is not up to you to work out how much they owe you at this stage.  The requirement is on the employer to keep records of your time (it pays for you to keep these records as well though to make sure they are not short changing you) and to accurately work out the correct payments in line with the legislation.  

When they reply, ask them to put it in writing or email. Advise them any verbal response that is unsatisfactory for these matters and will be taken as not replying.  Going to higher authorities is not a threat now, it is a real course of action and the Ace in your pocket 

Give me a yell if you want any help

What employer wouldn’t love an impending ATO review of their employment tax obligations???

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35 minutes ago, Parkside said:

Just another day in small to medium enterprise. I wonder how they'll get around this when single touch pay goes live

https://www.smh.com.au/business/workplace/sushi-outlets-fined-more-than-383-000-for-underpaying-workers-20190601-p51tjl.html

Single touch pay is already live for most businesses.  From my understanding they won't pick up on this type of stuff as they don't capture the number of hours being paid, just $ amounts.

It would be good to see it come in down the track later though, just to make compliance and audits that bit easier

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4 hours ago, Cottoneyes said:

Single touch pay is already live for most businesses.  From my understanding they won't pick up on this type of stuff as they don't capture the number of hours being paid, just $ amounts.

It would be good to see it come in down the track later though, just to make compliance and audits that bit easier

we're just going online with it this week so haven't seen it yet. My bookkeeper is all over it for me and will brief me next week. Tracks super and payg instalments though so can't delay or non-pay super right?

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1 hour ago, Turts said:

We win

 

Wow - you even have a time machine in Mildura. 

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6 minutes ago, Bosco said:

Wow - you even have a time machine in Mildura. 

Mildura is ahead of the times

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18 minutes ago, Bosco said:

Wow - you even have a time machine in Mildura. 

 

12 minutes ago, -H- said:

Mildura is ahead of the times

On average.......  

I think we have one of the highest teen pregnancy rates too. Setting the scene for the future ! Plus other things like illegal immigrant workers, illegal employment and underpayment of itinerant workers. 

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The date on the newspaper....

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10 hours ago, -H- said:

The date on the newspaper....

They put tomorrows cover on social media so we will all rush out and buy!

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12 hours ago, Parkside said:

we're just going online with it this week so haven't seen it yet. My bookkeeper is all over it for me and will brief me next week. Tracks super and payg instalments though so can't delay or non-pay super right?

Yeah much more instant tracking....including those avoiding child support...

Been a nightmare for us to get onboard systems wise last 2 years...hopefully ok for smaller guys like you

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