New wage theft laws in Queensland10 September 2020
Wage theft is now a crime in Queensland (link) following the successful passage of the Queensland Government’s Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 (link). The changes follow similar regulatory trends to address wage theft in Victoria, Western Australia and the Australian Capital Territory.
The new laws amend the Criminal Code Act 1899 (Qld) (which incorporates the Criminal Code), the Industrial Relations Act 2016 (Qld), the Magistrates Court Act 1921 (Qld) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
Why the laws were introduced
The Queensland Parliamentary Education, Employment and Small Business Committee conducted an inquiry into wage theft in Queensland, and tabled its report in 2018, A fair day’s pay for a fair day’s work? Exposing the true cost of wage theft in Queensland (link) (Report).
The Report found that over 437,000 Queensland workers are affected by wage theft, amounting to approximately $1.22 billion in annual lost wages. The Report also made several recommendations to address wage theft, influencing the introduction of the new laws.
The key recommendations were to “legislate to make theft a criminal offence where the conduct is…deliberate or reckless” and to ensure a “simple, quick and low-cost” process for workers to recover their wages.
What employers need to know
The top three matters for employers to be aware of are:
Prosecution of wage theft: Wage theft “can be prosecuted as an offence of stealing” through the amended definitions of stealing (link), which includes “a failure to pay an employee…an amount payable…in relation to the performance of work…when the amount becomes payable…under an Act, industrial instrument or agreement” (link). The Explanatory Memorandum suggests a broad definition of amounts payable to include penalty rates and superannuation (link).
Jail terms for wage theft: Employers found guilty of wage theft can be subjected to up to 10 years’ imprisonment, or, where the wage theft occurs by fraud, up to 14 years’ imprisonment.
Easier process to recover wages: Queensland workers can now pursue wages claims (up to $20,000) through the Queensland Industrial Magistrates Court. Claims will be referred to conciliation “as soon as practicable after the proceeding for the claim is started…preferably…before a party to the claim files a defence”, to enable parties to “reach agreement on as many matters as possible”.
Next steps: What employers can do
Employers should consider:
Assessing compliance with awards, employment contracts and industrial instruments to ensure that employee entitlements are correctly understood and applied.
Reviewing processes and procedures: Once an assessment of compliance has been undertaken, employers should consider reviewing their payroll systems and processes to ensure checks and balances for the correct payment of employee entitlements.
Training your HR, payroll and accounting teams: It is prudent to consider training to address and respond to queries relating to underpayment of employee entitlements before these issues result in litigation.
Our Workplace team at Sparke Helmore Lawyers can assist your company or organisation with reviewing your internal arrangements, assisting with associated training and developing a strategy to successfully navigate the risks of non-compliance.