Following the lead of Victoria and Western Australia, Queensland has passed its Wage Theft Laws in the form of amendments to the Criminal Code, that now provide for a 10 year sentence for deliberate wage theft and a 14 year sentence when the theft also includes fraud. The new laws come with a promise from the Government that a framework will be established to facilitate a “simple, quick and low-cost” underpayment recovery mechanism for staff to correct wage theft.
When the amendments, Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 were put forward, QLD IR Minister Grace Grace outlined that the amendments to the criminal code were intended to “reflect the seriousness of wage theft and signal Parliament’s intention to provide a deterrent to those employers who deliberately underpay and take advantage of their workers”.
Within the Criminal Code there was an offence that applied to staff for stealing from a businesses, but not the other way around. The amendments have changed the definition of stealing to “ensure the offence and corresponding penalty applies to employers in relation to wages and entitlements”.
Minister Grace points out that the amendments are not intended to target honest mistakes and that the intent of the employer is important, “The offence of stealing occurs when an employer intentionally fails to pay the amount, when it becomes payable under an act, industrial instrument or agreement, to the employee or to the other person on behalf of the employee with an intent to permanently deprive the person of the amount…It is not intended that the amendments will capture employers who act honestly.”
Stealing will include; unpaid hours or underpayment of hours; unpaid penalty rates; unreasonable deductions; unpaid superannuation; withholding entitlements; underpayment through misclassifying a working including wrong award, wrong classification or by ‘sham contracting’; the misuse of Australian business number and authorised deductions that have not been applied as agreed.
Unlike the Victorian wage theft laws, the Queensland laws will be enforced by the QLD Police. This has led to calls for the Police Guidelines to be released for comment. At this point the Guidelines have not yet been written, but will be authored with the assistance of the State Office of Industrial Relations.
The arguments against State based wage theft legislation are many, including; that there are existing penalties for those that deliberately underpay or otherwise cheat their staff; inconsistent definitions, enforcement; and actions and the potential for genuine honest errors that are fully rectified to result in a criminal record. Despite these potential problems deliberate and knowing wage theft is unconscionable, anti-competitive and unAustralian and should result in harsh penalties. As an industry we stand against Wage Theft and Fraud and will work with governments at a State and Federal level to ensure that the clear goals of these legislative instruments are achieved, while continuing to consult to ensure that honest mistakes do not result in ruined lives. For more on ACAPMAs position on Wage Theft and Fraud see; https://acapmag.com.au/2020/07/time-to-lead-a-message-from-acapmas-national-president/