No Pay Records? The Law Puts the Burden on Your Employer

Normally, the person making a claim has to prove it. If that were the whole story, an employer that simply kept no records would be in a strong position: no documents, no proof, no claim. Australian law refuses to reward that. It contains a codified rule that shifts the evidentiary burden onto the employer precisely when the employer failed to keep the records it was legally required to keep.

The mechanism is set out in art. 557C of the Fair Work Act. It applies where three things line up:

1. In proceedings about an employer's contravention of a relevant civil remedy provision, you make an allegation about a matter (for example, the hours you worked and the amounts you should have been paid);
2. The employer was required to make and keep a record (art. 535) or to give a pay slip (art. 536) about that matter; and
3. The employer failed to comply with that requirement.

Where those conditions are met, the employer has the burden of disproving the allegation (art. 557C(1)). In plain terms: you state your hours and amounts, and because the records that should have existed do not, the employer must prove you wrong — rather than you having to prove yourself right against a wall of silence.

The rule is powerful but not absolute. It does not apply if the employer gives a reasonable excuse for not keeping the record or issuing the pay slip (art. 557C(2)). What counts as a reasonable excuse is for the court to assess, but the default position — no records, no excuse — leaves the onus squarely on the employer.

This provision is Australia's codified answer to a problem workers face everywhere: the party that controls the records is the party best placed to hide underpayment. By putting the burden on the employer when records are missing, art. 557C removes the incentive to keep sloppy or non-existent records and protects the worker who was never given the paperwork in the first place. For anyone whose employer kept no records, it is often the single most important rule in their favour.

The reversal has teeth precisely because the underlying obligations are strict. An employer must make, and keep for 7 years, employee records (art. 535), and overtime must be recorded day by day — the number of overtime hours worked each day, or when overtime started and ceased (reg 3.34). Seven years is longer than the six-year claim window, so the records covering your recoverable period should, if the law were followed, still exist. Where they do not, that gap is the employer's problem, not yours.

The reversed burden works best when you bring something concrete to the table. Your allegation is far more compelling when it is a contemporaneous, timestamped record of your hours rather than a rough recollection. That is exactly what a personal hours log gives you: a dated, hour-by-hour account, created as you worked, that stands as your allegation. Set against an employer with no records and no reasonable excuse, it is the evidence the law asks the employer to rebut — and usually cannot.

Put together, the pieces form a strong position:

• Your timestamped log states the hours and amounts (your allegation).
• The employer's missing records trigger art. 557C.
• The employer must then disprove your figures, not the other way around.
• And you can pursue the claim for underpayments going back 6 years (art. 544).