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I have been provided a release of wages that was

Customer Question
I have been provided a...
I have been provided a release for payment of wages that was owing to me from underpayment of penalties rates, the payment is 12,000 plus super.. my boss has agreed to pay but sent me a release to sign... alot of my family says do not sign until someone has sen it. can anyone help me on here
Submitted: 1 year ago.Category: Australia Law
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Customer reply replied 1 year ago
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Customer reply replied 1 year ago
RELEASE – WITHOUT PREJUDICEIN CONSIDERATION of Scope Protective & Data Solutions Pty Ltd (Scope) agreeing to pay to Chris Benson of 16 Rivoli Close, Plumton VIC 3335 (the releasor) the amount of $13,919.80 (Gross) as full and final settlement of all claims, cause of action, proceedings, suits and demands by or on behalf of the releaser in any way relating to or arising out of his employment with Scope which payment the releaser has agreed to accept in full settlement as aforesaid, the releaser DOES RELEASE and forever discharges Scope from any claim, cause of action, proceeding, suit or demand by or on behalf of the releaser in any way relating to or arising out of his employment with Scope and DOES FURTHER AGREE to do all such things which Scope may reasonably require (at the expense of Scope) to put into effect the undertakings which it hereby gives to Scope and which are set out hereunder.UNDERTAKINGS The releaser will not disclose, and will not permit to be disclosed, whether directly or indirectly, any of the terms of this release or of the settlement referred to in this release, save that disclosure may be made to the releaser’s legal representatives and financial advisors, if any, and if required by law or to the extent necessary to defend or pursue any claim made on the parties which arises from a breach of the terms of that settlement. The releasor will not contact Scope or any of its employees, servants and/or assigns, whether directly or indirectly by means of any third person. The releasor will not contact any client of Scope, whether directly or indirectly by means of any third person. The releasor will not defame or make any slanderous, malicious or defamatory comments against Scope or any of its employees, servants and/or assigns, whether directly or indirectly by means of any third person. The releasor accepts that Scope Protective & Data Solutions Pty Ltd are not tax agents and by accepting the $13,919.80 as Gross monies undertakes the responsibilities relating to tax liabilities.
Answered in 1 hour by:
5/8/2016
Solicitor: Patrick H., Lawyer replied 1 year ago
Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5,422
Experience: Dip Law LPAB - Sydney based lawyer
Verified

Hello and thank you for your question.

You have said that the payment is $12,000 plus superannuation for underpayment of penalty rates. Obviously I cannot comment on whether the amount in question is correct or not, however, I do note that the amount you are being offered does not include a superannuation component, which strictly speaking should be paid directly to a superannuation fund. If the money is right but you are receiving funds that ought to be paid to the super fund, then that may result in you being force to pay the amount that reflects the unpaid super to the super fund, so be aware of that possibility.

That issue aside, the release is fairly standard but obliges you to keep the settlement confidential and to have no contact with the employer's clients, staff, contractors or agents, and to attend to any tax liabilities yourself arising out of this late payment (i.e. presumably you should have paid income tax on this money if it had been paid in the first place, and you likely now will be obliged to pay some portion in your return once you declare this new income). These conditions are ones that if you fail to comply with them, the company could sue you to get the money back, so be sure you can comfortably comply with them. In particular, if you have friends who are employees, agents, contractors or clients of this employer, then you either need to cease having contact with them or if you want to maintain the relationship, you should press them to agree that any such restriction is only applicable in the sense that you cannot discuss this settlement with them. Anything beyond that is not a reasonable restriction.

Strictly speaking, if you are confident that you can indeed prove you are entitled to the claimed amount, then you could just proceed with litigation and assuming you win, you will receive the money without any such restrictions, though the reason you may agree to them is to avoid the expense and delay of pursuing your entitlements in court, but if you are really uncomfortable with any particular restriction, you should think twice before simply settling.

I trust the above assists.

If you wish to have a phone call, you can post a request for me tomorrow and I will try to get back to you, but the reality is that experts are not always available on short notice.

Otherwise, please rate my answer.

Patrick

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Customer reply replied 1 year ago
Patrick,so its pretty standard? another lawyer advised me not to sign as its alot for unpaid wages which i shouldn't have needed to sign anyway.. also the fact im still employed with them contradicts all this doesnt it?? like the no speaking to employees ect??
Solicitor: Patrick H., Lawyer replied 1 year ago

I had assumed you were no longer working for them.

If you are still employed by them then they should account for the tax impact, and pay it as per their PAYE obligations (whereby they, as the employer, are responsible for deducting and setting aside a sufficient portion of your income for income tax purposes - though this doesn't really matter so long as you understand that you will likely be able to pay some of this money to the ATO once your tax return is filed) and should definitely attend to payment of any super component to your superannuation fund, as they do with your regular wages. Furthermore, you should point out that complying with their requested restrictions would effectively prevent you from working, so they should be waived. The only issue which you might agree to therefore is that you will not talk to anyone about the terms of this settlement, though as previously advised, this strictly isn't necessary, but it is the sort of thing that your employer will likely be very pushy about as the last thing they want is all the employees checking whether they have been correctly paid for their penalty rates, as it is possible your situation is a widespread issue. If you balk on this issue then the company may form the view that they will have to let the matter be resolved by the court or Fair Work Commission in order to avoid setting a precedent of a voluntary settlement.

As with all disputes of this sort, the actual terms and restrictions in a release are just matters to be negotiated along with the actual settlement amount. Indeed, you could simply write to them and say that what they are offering you appears to be only that which you are ordinarily entitled to without being bound by all these restrictions, but if they want you to be restricted by a confidentiality restriction regarding the agreement that will cost $x more. Of course, you should still not agree to clauses that effectively prevent you from working with your employers staff, agents, contractors and clients as that is just a nonsense, but if they are asking you to do something you can actually do, such as keep the agreement confidential, then asking for more money may be a sensible way to proceed, and may prove profitable if in fact your employer is concerned that other employees may make claims if they cannot keep the agreement secret.

I trust the above assists.

Good luck and please rate my answer.

Patrick

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