⚖ The Advocate
Workers' Rights

Employer Pays Below the National Minimum Wage

Knowing your legal wage floor and how to enforce it

Premium foundational 7 minutes
The Situation

What They Said

“Everyone here starts on $18 an hour. Take it or leave it.”
Wage theft and underpayment are significant problems across Australia, particularly in industries such as hospitality, retail, agriculture, and cleaning, where many workers are casual, newly arrived migrants, or young people entering the workforce for the first time. The national minimum wage is set annually by the Fair Work Commission through a formal Annual Wage Review process and applies to all employees not covered by an enterprise agreement or modern award that sets a higher rate. As of the 2024 Annual Wage Review, the national minimum wage is $23.23 per hour, or $882.80 per 38-hour week. Many employers — especially small business owners — either do not know the current rate, choose to ignore it, or deliberately exploit workers who are unlikely to complain. The phrase 'take it or leave it' is designed to present an illegal pay rate as though it were a legitimate business offer, framing the worker's acceptance as a mutual agreement. This framing is legally meaningless: no agreement between an employer and employee can set wages below the statutory minimum, regardless of what both parties sign. Workers who accept below-minimum wages often do so because they feel they have no alternative — they need the income, fear being rejected from future jobs if they push back, or simply do not know that the law guarantees them more. Understanding the legal wage floor is the first step to reclaiming what is rightfully owed.
The Fallacy

Mutual Agreement Override Fallacy

The employer is implying that because you are free to accept or reject the offer, the rate they have named is a legitimate starting point for negotiation. This is false. The national minimum wage is not a floor that applies only when workers demand it — it is a statutory obligation that applies to every employment relationship in Australia regardless of what either party agrees to. 'Take it or leave it' sounds like a free-market offer, but it is actually an attempt to substitute the employer's preferred terms for what the law mandates. The fallacy works by treating wage-setting as a purely contractual matter between employer and employee, ignoring that Parliament has intervened and set a minimum below which no contract can reach. Even if a worker genuinely agrees to $18 an hour and signs a document to that effect, the agreement is void to the extent that it falls below the legal minimum. The employer cannot contract out of the Fair Work Act 2009. This tactic also uses economic pressure — the implicit threat that refusing means getting no job at all — to suppress the worker's right. It is a form of wage theft dressed up as a fair bargain.

What the Law Says

Your Legal Foundation

Fair Work Act 2009 (Cth)
Section 293 — National Minimum Wage Order
“A national minimum wage order must set a national minimum wage. The national minimum wage is the minimum wage for employees to whom the national minimum wage order applies.”
The Fair Work Commission issues a national minimum wage order following its Annual Wage Review each year. The 2024 order set the national minimum wage at $23.23 per hour. This rate applies automatically to every employee not covered by a higher rate under a modern award or enterprise agreement. An employer paying $18 per hour to such an employee is paying $5.23 per hour below the legally required rate.
Fair Work Act 2009 (Cth)
Section 45 — Contravening a Modern Award or National Minimum Wage Order
“A person must not contravene a term of a modern award. A person must not contravene a national minimum wage order.”
Paying below the national minimum wage is a civil remedy provision under the Fair Work Act. This means the employer can be taken to the Fair Work Commission or the Federal Court, and the worker can recover all underpaid amounts as a debt. The Fair Work Ombudsman also has power to investigate and issue infringement notices and seek civil penalties against employers who underpay workers.
Fair Work Act 2009 (Cth)
Section 323 — Method and Frequency of Payment
“An employer must pay an employee amounts payable to the employee in relation to the performance of work in full, at least monthly, and in money.”
This provision reinforces that all wages lawfully owed — including the difference between an agreed rate and the minimum wage — must be paid in full. A worker who has been underpaid can claim the shortfall as a debt under this section, and the obligation to pay in full cannot be waived by any workplace agreement.
What Scripture Says

God's Word on This

Jeremiah 22:13 (NIV)
“Woe to him who builds his palace by unrighteousness, his upper rooms by injustice, making his own people work for nothing, not paying them for their labor.”
God's word names underpayment not as a business decision but as injustice — a moral failure with consequences. The worker who insists on lawful wages is not being difficult; they are refusing to participate in a system the prophet condemned. Australian law and Scripture agree: labour must be honestly compensated, and those who withhold wages are accountable.
Luke 10:7 (NIV)
“Stay there, eating and drinking whatever they give you, for the worker deserves his wages. Do not move around from house to house.”
Jesus himself affirmed the principle that workers deserve what they have earned. This is not a passive suggestion but a statement of what is right and just. Claiming the minimum wage is not greed — it is receiving what has been declared worthy by both the law of the land and the Word of God.
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What They'll Say Next

Common Counter-Arguments

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