At our ACAPMA Board Meeting a week ago we had a lengthy discussion regarding long discussed criminal prosecution for wage fraud. The conversation took a natural path… “we risk enough for being in business why would we want to risk jail too”? We discussed the complexities of the ‘modern’ Award and the fact that the universal view was “on occasions there can be small administrative or clerical errors and I don’t want to go to jail for that”. A long and fruitful discussion ensued…

Here are some facts:

  • We have criminal penalties already in place for Trade Practices violations (up to 10 years jail)
  • We have criminal penalties already in place for Environment Protection violations (up to 7 years jail in NSW)
  • Criminal cases are heard in a criminal court where the burden of proof (beyond reasonable doubt) is higher than that of a civil court (the balance of probabilities)
  • As an industry we still have considerable challenges from a reputational stand point regarding compliance to Award wage payment, despite my experience being anything but

While I’m on it… here’s another fact. I have a number of employees who tell me we pay them twice what their previous employer did (for the avoidance of doubt I’m not Father Christmas, they’re paid the Award). Yes they are from our industry and no they are not members of ACAPMA. I have employees who tell me they have never been paid Superannuation in their jobs until now.

General arguments against:

Our ‘modern’ award (I only ever refer to ‘modern’ in inverted commas, given it considers all our staff drive forklifts and peer under the hood of a car, rather than selling food, making coffee etc) is rather complex and open to administrative errors. The loading classifications are incredibly complex and leaves a lot to interpretation.

Reasonable mistakes (lets call them honest mistakes) could result in jail time. Seems counter to the notion of taking reasonable commercial risk for reasonable commercial return.

Do we really want more regulation and red tape?

General arguments for:

We simply do not have a level playing field. Anyone who argues this is deluded or a crook.

Sure we all have different offers and our stores come in all shapes and sizes, but wage theft still exists in our industry to a material degree, albeit in isolated operations. The customer views our product as homogenous and by default, our payroll compliance, yet we know that’s not the case.

Underpayment has a material (favourable) impact on the cost base of the perpetrators and puts them at a material unfair advantage to the rest of us.

I believe our industry is probably more aware of its Trade Practices and Environmental obligations than any other.

I believe our compliance is second to no other industry in this regard and on the whole we should be very proud of this.

I’m not aware of anyone going to jail for using the wrong type of spill absorbent or missing a round of the 6 monthly monitoring well inspections.

Sanity has prevailed here, why wouldn’t it in wage theft too?

The bottom line:

Thankfully we live in a society with a strong and impartial court system, if we can trust their judgement of murderers, drug dealers, trade practices violators and environmental torturers why do we not trust them with systemic wage fraud perpetrators too?

We talk about wanting red tape removed and the holy grail of a ‘one in, two out’ approach to legislation. This is the type of legislation that changes behaviour and allows the free flow of labour to opportunity and helps economies recover.

We need this now more than ever for economic recovery.

In the last 6 months we’ve been through fires, floods and a world paralysing pandemic and in all of those disasters I think our industry rose to be a central and trusted pillar of our communities.

The “last to close, first to open” mentality that we are known for was on show and in lights. I grew up in this industry and only know it to be honest, hard working, reliable and yes… commercially very tough.

Don’t we owe it to ourselves, our staff and the communities around us to grab this bull by the horns, work with government and regulators  and stamp out serious wage fraud forever?

We have an opportunity to shape this. To shape the legislation that jail time should be for ‘serious, wilful, deliberate and malicious breaches’.

We must have a level playing field and the threat of criminal prosecution for serious and deliberate breaches will do it.

So what are we afraid of? Its time to lead the fight against wage fraud. We have supported the fight from the wings for long enough. It is time to lead.

Wade Death
National Board President