In brief - Queensland has just passed legislation criminalising wage theft

On 9 September 2020, the Queensland Parliament passed legislation to criminalise wage theft.

Queensland Wage Theft Legislation 

Following an inquiry into wage theft in Queensland and recommendations from its final report, the Queensland Government has now passed the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 (Bill) to combat wage theft. 

The date of commencement of the Criminal Code and Other Legislation (Wage Theft) Amendment Act 2020 (Act) is yet to be fixed.

The Act will amend, among others, the Criminal Code Act 1899 and the Industrial Relations Act 2016.

Act

Amendment

Maximum Penalty

Criminal Code

It is an offence for an employer to steal from their employee, by way of not paying proper entitlements/wages required by a relevant industrial agreement (Modern Award, etc).

This offence captures a broad range of payments, including:

  • 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; and 

  • authorised deductions that have not been applied as agreed.

10 years imprisonment

Criminal Code

Amendment of the definition of fraud to include where the offender is the employer of a victim. 

14 years imprisonment

Industrial Relations Act

The amendments to the Industrial Relations Act will allow the sharing of information by an employer to a registered employee organisation (REO) with consent from the employee.

These provisions apply to employers and employees in the Queensland industrial relations jurisdiction only (generally Queensland Government and local governments employers), and do not apply to employers in the federal Fair Work jurisdiction.
 

  • Failure of an employer to keep proper authorisation of an employee - 27 penalty units

  • Failure of an employer to give the REO authorised information within 15 business days (with some exceptions) - 27 penalty units

  • A person must not wilfully deceive or mislead an employer in order to gain access to information about an employee - 40 penalty units.

Industrial Relations Act

The amendments to the Industrial Relations Act will introduce a procedure for fair work claims and wage recover claims to proceed through the Industrial Magistrates Court. The proposed amendments include:

  • The Industrial Magistrates Court to be able to perform functions as an eligible court under the Fair Work Act (FW Act). These provisions will enable a worker to access the small claim procedure under the FW Act, simplifying the recovery process for workers.

  • Clarification that if a worker starts proceedings for a fair work claim or an IR Act unpaid amount claim in the Industrial Magistrates Court or the QIRC, the registrar may refer the parties to a conciliation before the Court hears the claim.

  • Industrial Commissioners will be the conciliators for the fair work claims and IR Act unpaid amount claims. 

  • Conciliation process for wage recovery claims for state workers.

N/A

 
The Queensland IR Minister Grace Grace previously stated that the legislation is not intended to capture employers who act honestly. Its purpose is to capture employers who intentionally fail to pay employees and demonstrate an intent to deprive staff. 
At this stage it is not clear how honest 'intent' or intentional failure to pay the correct rates will be assessed. 

The Queensland Council of Unions (QCU) have stated that "detailed public guidelines" are needed that set out the criteria for police when investigating alleged wage theft offences.

Unlike the Victorian legislation, which requires an industrial inspectorate to investigate wage theft claims, the QCU have considered that it is likely the Queensland Police will be relied on to investigate and prosecute wage theft claims.

How this will work - in terms of police training and resourcing, is not clear.

What can employers do to prepare?

Due to the complexity of modern industrial obligations, it is perhaps not surprising that payroll errors are made. In our experience, most underpayments are a result of administrative error or a shortcoming in the payroll system, rather than any deliberate attempt to underpay employees. 

Shortly, there will be a comprehensive state by state and federal system for capturing and addressing alleged wage theft. Victoria and the ACT already have wage theft legislation in place. Similar legislation is before the Western Australian parliament. Federal wage theft legislation has been foreshadowed.

In view of this emerging system, now is the time for employers to understand their wage theft risk. Employers, who are concerned about their payroll processes and system, should consider conducting privileged and confidential payroll audits, and review their classification of employees and their payroll systems to ensure compliance.

Our Brisbane employment and safety team regularly conduct payroll health checks to assist employers understand where the gaps in their payroll processes might be. Our team would be happy to discuss these processes with you and your HR/payroll teams.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.