On 10 September 2020, the Queensland Government passed the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 (Qld) (Bill) criminalising wage theft in Queensland.
While the new wage theft laws do not affect those employers covered by the National Employment Standards under the Fair Work Act 2009 (Cth) (FWA), the new laws affect those State and local government employers under the Industrial Relations Act 2016 (Qld) (Industrial Relations Act). Notwithstanding the above, there have been suggestions that similar provisions may be introduced at a federal level. As such, it is important for employers to keep in mind their obligations to pay employees the correct wages and entitlements under any modern awards, enterprise agreements or terms under an employment contract.
What does wage theft cover?
The wage theft laws cover a broad range of payments including but not limited to:
- Unpaid hours or underpayment of hours;
- Unpaid penalty rates;
- Unreasonable deductions;
- Unpaid superannuation; and
- Authorised deductions that have not been applied as agreed.
The Bill amends the Criminal Code Act 1899 (Qld) (Criminal Code) by including two new offences.
- Stealing: now includes the offence for employers who intentionally fail to make payment of wages or entitlements as they become payable to employees; and
- Fraud: now includes offences by an employer relating to wage theft.
The stealing offence carries a maximum penalty of 10 years imprisonment. In contrast, the fraud offence has a maximum penalty of 14 years imprisonment.
The new wage theft laws also amends the Industrial Relations Act empowering the Industrial Magistrates Court to hear wage recovery claims under the FWA. Further, the wage theft laws introduce new conciliation procedures for those State workers who fall outside the jurisdiction of the FWA and those workers who start proceedings for a fair work claim or an unpaid amount claim under the Industrial Relations Act.
What can employers do?
Employers should consider:
- Reviewing their level of compliance with industrial instruments and employment contracts. Often underpayments are administrative errors however, employers should consider seeking advice to ensure they are making correct payments under relevant modern awards and agreements;
- Implementing and regularly reviewing control mechanisms and audits on payroll systems and processes to ensure correct payments are being made; and
- Ensuring that any underpayment issues are quickly addressed by payroll or human resources staff (if any) on the application of workplace laws and industrial instruments or by seeking external advice.
If you wish to receive further advice about the new wage theft laws or compliance with any relevant industrial instruments, please reach out to our Brisbane Workplace Relations and Safety team.
This article was written by Heinz Lepahe, Partner, Michelle Chadburn, Associate and Zachary Toren, Law Graduate.