Your Right to Employee Records and Pay Slips

The first obligation is about keeping. Under the Fair Work Act, an employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations for each of its employees (art. 535(1)). Seven years is a long horizon — longer, in fact, than the six-year window in which you can bring a claim — so in principle the records covering your entire recoverable period should still exist.

The law also forbids dishonest records. An employer must not keep an employee record it knows is false or misleading (art. 535(4)). Records that have been doctored are not a defence; they are a further contravention.

The second obligation is about giving. An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work (art. 536(1)). This is not "eventually" or "on request" — it is within one working day of each payment. A pattern of missing or late pay slips is itself a breach.

The content is prescribed by the Fair Work Regulations, so a pay slip that omits key items is not compliant.

Under reg 3.33, the records must specify:

• the rate of remuneration paid to the employee;
• the gross and net amounts paid; and
• any deductions made from the gross amount.

And reg 3.33(3) goes further: where the employee is entitled to a penalty rate or another monetary allowance or separately identifiable entitlement, the record must set out details of that payment, bonus, loading, rate, allowance or entitlement.

For overtime specifically, reg 3.34 requires that if a penalty rate or loading (however described) must be paid for overtime hours actually worked, the employer must keep a record specifying either (a) the number of overtime hours worked during each day; or (b) when the employee started and ceased working overtime hours. In other words, overtime has to be traceable day by day.

This detail matters to you directly: it is the paper trail against which you can check whether your penalty rates and overtime were actually paid.

None of these obligations is toothless. Each is a civil remedy provision, which means a breach can attract a pecuniary penalty ordered by a court (art. 546). Failing to keep records, keeping false records, failing to issue pay slips, or issuing non-compliant ones — each can expose an employer to a penalty. This is part of why a records request is taken seriously: ignoring it is not cost-free for the employer.

Here is the provision that turns a record-keeping obligation into your strongest asset. If your employer was required to keep records or give pay slips and failed to do so, then in proceedings the employer bears the burden of disproving your allegation about hours and amounts (art. 557C). It does not apply if the employer shows a reasonable excuse (art. 557C(2)).

So the absence of records does not weaken your case — it strengthens it. Instead of you having to prove every hour against an employer's silence, the employer has to disprove your figures. That is why requesting your records early is worth doing even when you suspect they were never kept: either you get the documents to reconcile against your own log, or the very fact they are missing works in your favour.

• Ask in writing. Send a clear, dated request for your employee records and pay slips, and keep proof that you sent it. A written trail matters if the matter later goes to the Fair Work Ombudsman or a court.
• Be specific. Identify the period and the documents — pay slips, hours records, overtime records under reg 3.34.
• If you are refused or ignored, the failure to provide records is itself a breach, and it activates the reversed burden of proof under art. 557C. You can then take the matter to the Fair Work Ombudsman for information or mediation, and if needed to a court.

Whatever happens, keep your own contemporaneous, timestamped log of hours. It stands as your allegation, and where the employer's records are missing, it is the evidence the law asks the employer to rebut.