On 14 September 2020, the Queensland Criminal Code was amended so that what is known as ‘wage theft’ could be dealt with in the same way stealing is. The maximum penalty for stealing by an employer was also increased to imprisonment for 10 years.
Why have new wage theft laws been introduced?
The new wage theft laws have been introduced in response to an inquiry by the Queensland Parliamentary Education, Employment and Small Business Committee, which conducted an inquiry into wage theft in Queensland. The Committee produced a report in 2018, which found that more than 400,000 workers in Queensland were victims of wage theft. The stolen wages totalled approximately $1.2 billion.
As the laws are an extension of existing theft and fraud laws, the system for reporting is as straightforward as reporting any other crime and workers are provided with a simple and accessible means by which to recover any stolen wages.
How does this affect employers?
It is an employer that will be liable for wage theft if it is found that they have knowingly and intentionally failed to pay an employee an amount payable for performance of work when the amount is due.
Within the employer organisation, it may be the director or senior officer who is held liable if they are found to have intentionally defrauded a worker through assisting or encouraging wage theft to be committed.
Accessories to wage theft may also be found to exist within the organisation and they are classified as any person who knowingly and intentionally assisted or encouraged the employer to commit the offence. To be an accessory, the accused must be found to have actual knowledge of the circumstances surrounding the fraudulent conduct.
How can employers maintain compliance?
In order for employers to maintain compliance, they will need to ensure that they keep up-to-date payroll systems so that they can be certain they are paying their employees in line with the law.
Employers should be sure they do not omit any ‘amount payable’ from their workers. An ‘amount payable’ may include:
- the underpayment of hours worked;
- unpaid penalty rates;
- unpaid superannuation;
- unreasonable deductions; and/or
- withholding entitlements;
Other breaches may include intentionally misclassifying a worker, misusing an Australian Business Number or including the wrong award.
I am an employer. Will I be penalised if I make an honest mistake?
The new wage theft laws have been brought in to deter deliberate conduct and they are not intended to apply to honest payroll mistakes. However, as with all laws, the merits of each case will be examined the ascertain if genuine intention to defraud the employee/s was present.
Will the new laws capture past offences?
No. The new wage theft laws came into effect on 14 September 2020 and will only apply to offences committed from that date onwards. There is, however, the possibility that some cases of wage theft can be penalised under existing fraud laws, which have also been increased to a maximum of 14 years’ imprisonment.
For more information on wage theft laws, speak to an employment lawyer in Cairns today.