On 9 September 2020, Queensland’s parliament passed the Criminal Code and Other Legislation (Wage Theft) Amendment Act 2020, which inserts wage theft into Queensland’s criminal legislation as an offence.
The Act provides that employee entitlements are a thing capable of being stolen. The employee entitlements that can be stolen 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.
Any employer found to have engaged in deliberate wage theft, considered stealing under the amended legislation, will face up to 10 years’ imprisonment. This is further increased to 14 years’ imprisonment if the employer was found to have engaged in fraud.
The Government has promised a simple, quick and low-cost method for employees to recover underpayments from their employers. The aim is to provide an accessible small claims process for wage recovery matters for all Queensland workers. Alleged wage theft claims will be investigated by police rather than a specific inspectorate or industrial organisation. Police prosecutors will also be responsible for any prosecutions that arise from substantiated allegations.
The Queensland Council of Unions has called for detailed public guidelines to be established to set out criteria for police to investigate an alleged wage theft offence, as well as a clear public interest test for a wage theft prosecution. These guidelines may also provide for how police will respond to wage theft complaints, and distinguishing features that indicate a matter is wage theft rather than a separate offence.
The Wage Theft Act also amends the Industrial Relations Act 2016 (Qld) (IR Act) to introduce a process for fair work claims and wage recovery claims in the Industrial Magistrates Court up to $20,000. The registrar managing the case may refer the parties to conciliation before the Court will hear the claim. The QIRC Industrial Commissioners will be the conciliators for any conciliation conferences.
The Wage Theft Act also amends the IR Act to provide that an employer must (with the employee’s consent) share employee information to a registered employee organisation (i.e. a union). An employer will be liable for up to 27 penalty units for failing to provide the employee information.
In light of the changes in legislation, it is important now more than ever to ensure that employers are paying the correct wages to their employees to avoid potential wage theft claims and police scrutiny. Any potential underpayment should be addressed as soon as practicable to avoid any potential criminal charges.
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