Wage theft has become a prominent issue in Australia, with the FWO recovering over $500 million in underpayments across the previous financial year. This figure has been growing year on year, highlighting that the issue has likely been there for sometime, yet is now coming into the spotlight. As a result, both Queensland and Victoria have brought in legislation.
Queensland Passes Wage Theft Laws
he Queensland parliament passed new wage underpayment legislation.
The legislation:
- allows the prosecution of wage theft as an offence of stealing;
- provides that stealing or fraud by an employer towards an employee attracts an increased maximum penalty; and
- allows for civil claims for unpaid wages through the Industrial Magistrates Court.
The offence or stealing or fraud covers a broad range of payments and entitlements 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.
The legislation also allows for timely and informal resolution of matters and allows the Queensland Industrial Magistrates Court to hear federal claims under the Fair Work Act and State system employees under the Queensland Industrial Relations Act.
Penalties
The maximum penalty for stealing by an employer is 10 years imprisonment and for fraud up to 14 years. You can read the Act here. You can read the Explanatory notes here.
Victorian Wage Theft Laws
On 16 June 2020, the Victorian Parliament passed the Wage Theft Act 2020.
The offences in Victoria refers to wage theft as ‘employee entitlement offences’ which include the following:
- Dishonestly withhold the whole or part of an employee entitlement;
- Falsifying an employee entitlement record to dishonestly obtain or to prevent the exposure of a financial advantage; or
- Failing to keep an employee entitlement record, to dishonestly obtain or prevent the exposure of a financial advantage.
“Employee entitlement” means an amount payable by an employer to or in respect of an employee, or any other benefit payable or attributable by an employer to or in respect of an employee, including wages or salary, allowances and gratuities, and the attribution of annual leave, long service leave, meal breaks and superannuation.
In Victoria, the legislation has created a Wage Inspectorate and the position of Commissioner. The role of the Inspectorate is not only to investigate and prosecute wage theft offences but also to educate and assist employees as to their rights, plus promotion and monitoring compliance including publishing guidelines.
Penalties
The maximum penalty is a fine of $991,320 and 10 years’ imprisonment. You can find a copy of the Act here.
Payroll Failures
The above legislative changes are a further reminder of the need to get employment compliance right. Over the past 18 months, business payroll and HR system failures have caused multi-million dollar wage back-payment claims and exposed businesses to potentially huge fines and now potential criminal wage theft prosecutions.
If it can happen to Woolworths ($390 million plus) and Coles (class action claiming up to $200 million) with their well-resourced HR Departments and Payroll offices, then business leaders should be worried it can happen to any business!
Many businesses, franchises included, now rely on outsourced payroll systems to ensure compliance, but often the people given the task of managing those systems appear to have been ‘asleep at the wheel’, or at best unaware of areas of non-compliance with our complex system of industrial awards and agreements.
Board members need to focus on this now due to the associated reputational damage if their organisation gets caught out, not to mention the unfunded liability hurting their business’ share price or from huge fines. Franchisors should already be aware of the need to take reasonable steps to ensure they don’t become liable for franchisee non-compliance with our employment laws.
Our ‘Employment Compliance Framework’
The emerging ‘elephant in the room’ for franchisors, directors and senior managers is that more and more federal, state and territory laws are making individuals, officers and directors personally liable for a range of different criminal offences, including ‘wage theft’ and industrial manslaughter. These people want to know what steps they can take to ensure they don’t inadvertently fall foul of these major new responsibilities, whilst also having to continue to manage their existing ones.
Rather than just responding to random requests to help our clients meet bits and pieces of these obligations, we thought it important to develop what we have named our ‘Employment Compliance Framework’, to help franchisors, directors and managers systematically work through their employment compliance and related responsibilities. The framework is a series of checks and processes we use to ensure our client is achieving its particular compliance goals.
Having a structured plan to resolve identified issues in a systematic way will also help reduce your exposure to higher penalties, whilst you are acting to fix them.
ER Strategies
ER Strategies has been working with both franchise and other non-franchise clients for all of our 21 years of existence. Our all-inclusive WorkShield Franchise service is designed to provide our franchise clients with a total employment compliance solution.
Call us on 1300 55 66 37 if you would like to explore how our Employment Compliance Framework, WorkShield service package, or any other service element, can work to protect your brand, management and Board members.
