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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5357
Experience:  Dip Law LPAB - Sydney based lawyer
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My previous employer loaned me approx. $9000 to pay off a

Customer Question

Hello
My previous employer loaned me approx. $9000 to pay off a debt for uni.
It was agreed in an email to her and her accountant that I would pay this amount back at $300/month, with the potential of it increasing in Jan 16 depending on circumstances. This was the only agreement put in place.
I have just receive an email from her stating that she wants to withhold my last months pay, and wants the remaining debt to be paid off by the end of today.
My questions are:
1. Can she withhold my last pay to pay this debt off?
2. If there was no agreement besides the $300/month repayment does she have any other legal standing in terms of repayment?
3. Can you get paid/owed overtime on a salary? I worked overtime and quite late at night on numerous occasions.
I left the job due to duress and her threatening me, not due to termination in Jan 2016.
Submitted: 10 months ago.
Category: Australia Law
Expert:  Patrick H. replied 10 months ago.

Hello and thank you for your question.

1. An employer may not withhold your pay to satisfy a loan, unless you give your consent, even if the loan is to the employer itself. Sections 323 and 324 set out what the employer must pay and what they are antitled to deduct:

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s323.html

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s324.html

2. Where a loan agreement is not well defined, it is possible to apply to the court for orders regarding repayment, or interest, but that would likely only vary the current repayment arrangement IF you have stopped making your regular payments or either of you otherwise breach your agreement in some way. Working out whether a breach has occurred is of course quite difficult absent a written document, so if the agreement was only verbal, it is hard to predict how a court will deal with such a case. The wisest thing to do is simply comply with the existing repayment arrangements until the debt is cleared.

3. If you are on a salary you are expected to work reasonable overtime, however, if you are just working back because you decide to and without the employer's requesting it, then you won't be entitled to be paid for that time. If you employer has asked you to work overtime, beyond your normal hours, then you are legally entitled to get paid for it.

The common problem that arises is that employers rarely actually ask for overtime, but tend to either load up workers with more work than their workers can do in a normal working day and thus build pressure and a climate of 'voluntary' overtime, which can result in a workplace where all the staff are effectively pressured to work overtime without the employer ever actually asking them. If that is your situation, then had you still been working there, you should firstly discuss the issue with your employer, or if your concerns are not met you should consider keeping a diary of all the hours you are working, and a record of any other issues you think demonstrate that your workplace is creating an environment that pressures you to work. You should also discuss the issue with other staff, and your union if you have one. What you are trying to do by keeping such a diary is establish that your employer is essentially forcing you to work overtime by setting unrealistic work expectations. Once you have established such a record, you can then consider re-raising the issue with your employer, and if they are still unwilling to either reduce your workload, order you not to work overtime, or pay you for your overtime, then you can consider bringing a claim before the Fair Work Commission, which is a cheap and effective process, or alternately simply refuse to work any further additional overtime unless it is paid. It is against the law for your employer to take disciplinary action or to sack you for refusing to work unpaid overtime, and if they do you can again bring a claim or further claim before the Fair Work Commission.

As you have already left your employer, you can still consider making a claim for unpaid overtime, but it will be much more difficult to gather the evidence that you would require to convince the Commission, or ultimately a court, that you are entitled to overtime pay.

Overtime aside, also be aware that if you resigned because she effectively forced you to quit, then you may be able to argue that your resignation was a constructive dismissal (the commission can treat a resignation as a dismissal if it was effectively forced by the employer's improper conduct). If it was forced by improper conduct or for reasons that do not justify the dismissal, then you could bring a claim for wrongful dismissal before the Commission.

However, you only have 21 days from the date of resignation to lodge a claim so you must act quickly.

The cost of making such a claim is very modest, and it is geared so that parties should not need legal representation, so it is something you can do yourself. I suggest you read the following link where your options are explained:

https://www.fwc.gov.au/

Good luck and PLEASE RATE MY ANSWER.

Patrick

Expert:  Patrick H. replied 10 months ago.

I have tried to assist you but have received no feedback.

PLEASE RATE MY ANSWER as I am only paid for my time and effort if you give a positive rating.

Thank you,

Patrick