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Employer Risk Alert: Criminalisation of Wage Theft.



Queensland


Queensland has joined Victoria in criminalising wage theft by enacting the Criminal Code and Other Legislation (Wage Theft) Amendment Act 2020 (“Wage Theft Act”). The Wage Theft Act amends the Criminal Code to include new section 391(6A), which provides that employee entitlements are a thing capable of being stolen. Employee entitlements that can be stolen include any amounts payable to an employee under an Act, industrial instrument or agreement, which would include:

  • unpaid hours or underpayment of hours

  • unpaid penalty rates

  • unreasonable deductions

  • unpaid superannuation

  • withholding entitlements

  • underpayment through intentionally misclassifying a worker including wrong award, wrong classification or by ‘sham contracting’ and the misuse of Australian Business Numbers

  • authorised deductions that have not been applied as agreed.

The maximum penalty for stealing by an employer is 10 years imprisonment. The Wage Theft Act also amends the offence of fraud in section 408C(2) to insert new paragraph (e) to provide that the offender is liable to 14 years imprisonment if the offender is or was an employer of the victim.


Queensland Police have been given jurisdiction to investigate claims of wage theft. A Wage Theft webpage has been created by Queensland Police providing information on the criminal investigation of wage theft. This page clarifies that they can only investigate offences occurring after 14 September 2020.


The Wage Theft Act also amends the Industrial Relations Act 2016 (Qld) to introduce a process for Fair Work and wage recovery claims in the Industrial Magistrates Court up to $20,000.


Victoria


On 16 June 2020, the Victorian Parliament passed the Wage Theft Act 2020 (the “Vic Act”) which will commence on 1 July 2021.

The Vic Act will create three new statutory offences:

  1. dishonest withholding of employee entitlements;

  2. falsification of employee entitlement records in order to obtain financial advantage for any person, or to prevent exposure of an offence; and

  3. failure to keep employee entitlement records in order to obtain financial advantage or to prevent exposure of an offence.

Each of the three offences covers an employer; a company officer permitting, expressly or implicitly, another person to carry out the offence and any associated person (such as a franchisor or head contractor) who ‘intentionally assists’ in the offence. Each offence attracts a maximum penalty of $991,320 for corporations, or 10 years’ imprisonment for individuals.


What does this mean?


Both the QLD and the Victorian laws appear targeted at instances of wilful underpayments and wage theft from employees. While as yet there have been no criminal cases of wage theft, with Federal criminalisation of wage theft expected to be considered by parliament by the end of the year, now is the time for employers to audit their payroll arrangements and employee entitlements to ensure they are compliant with workplace laws.


Terri Bell & Co can assist you with:

  • how to conduct an employee audit;

  • reviewing your casual employees and contractors and provide you with advice regarding proper characterisation; and

  • navigating any applicable awards and entitlements.

Please contact our office on 61 2 9191 9856 or email info@tlblaw.com.au to arrange a time to speak with our team if you wish to discuss any of the matters raised in this article or you have any concerns about your workplace obligations generally.

IMPORTANT NOTICE - The information contained in this article is not intended to be comprehensive. It is general in nature and is not intended to be used as a substitute for legal, financial or other professional advice. You must seek specific professional advice tailored to your personal circumstances before taking any action based on this article.


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