New laws to criminalise deliberate wage theft by an employer against an employee were introduced in Queensland on 9 September 2020.

These laws respond to the findings and recommendations of a 2018 Queensland Parliamentary Committee inquiry into wage theft in Queensland and the inquiry report A fair day’s pay for a fair day’s work? Exposing the true cost of wage theft in Queensland.

The Committee found that wage theft is widespread, affecting around 437,000 (approximately one in five) Queensland workers each year and costing more than $1 billion every year in unpaid or underpaid wages.

What is wage theft?

Wage theft can take various forms such as underpayment of wages, having entitlements such as leave and penalty rates withheld, and an employer not making required superannuation contributions on an employee’s behalf. You can read our article on how employers may be inadvertently underpaying employees for further examples of how payroll errors are made.

When is wage theft a crime?

The new laws amend section 391 (‘Definition of stealing’) of the Queensland Criminal Code to capture deliberate, intentional behaviour leading to under or non-payment of entitlements as a criminal offence. This could include where deliberate wage theft occurs through:

unpaid hours or underpaid 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 (ABN)
authorised deductions that have not been applied as agreed.

What rights do workers have?

As a worker in Queensland, rights and entitlements are protected by State and Commonwealth laws. Under these laws minimum entitlements including the following are protected:

Minimum hourly rates of pay
National Employment Standards
Superannuation

Employers are required to give every new employee a copy of the Fair Work Information Statement (the Statement) with information about conditions of employment when they start their new job.

Minimum rates of pay and deductions from wages

Minimum pay rates are set in an award, enterprise agreement or other registered agreement. If none of these apply, employees must be paid at least the national minimum wage, set each year by the Fair Work Commission.

Visit the Fair Work Ombudsman website or contact them on 13 13 94 for information on minimum pay rates, penalties and allowances under awards. You can use the pay calculator to find the correct award if you’re not sure.

Any minimum hourly rate referred to in a modern award, enterprise agreement or under the national minimum wage is a ‘gross’ (before tax) hourly rate, and PAYG tax may be deducted.

Employers are usually prohibited from deducting money from an employee’s pay without their consent or from requesting an employee to pay ‘cashback’ amounts out of their wages back to the employer. Read more information on deducting pay and overpayments.

National Employment Standards (NES)

The NES are legal minimum entitlements which apply to all private sector employees in Australia, this includes paid annual leave (unpaid for casual workers), sick leave and public holidays. An award, employment contract or enterprise agreement cannot provide for conditions that are less than the national minimum wage or the NES. If you are a casual employee you are not eligible for paid leave but will instead be paid an additional 25% of your basic hourly rate. If you are employed under an enterprise agreement, the agreement may provide for a different ‘casual loading’ figure.

Superannuation

Employers must pay superannuation contributions for eligible employees into a complying superannuation fund at least every three months payable. This is called the super guarantee and is currently 9.5 per cent of an employee’s ordinary time earnings.

The Australian Taxation Office (ATO) enforces compliance with superannuation obligations. If your employer is not paying superannuation contributions on your behalf at least quarterly and if you are eligible for superannuation contributions, you can make a complaint through the ATO’s website, or contact them on 13 10 20.

For employees:

If you believe you have been underpaid you can raise the matter with your employer, seek assistance from your union or make a complaint to the Fair Work Ombudsman at fairwork.gov.au or call 13 13 94 for wages and other entitlements. For superannuation, contact the ATO at ato.gov.au or 13 10 20.

The Fair Work Ombudsman can provide advice on minimum hourly rates and how to raise a possible underpayment of wages with your employer. They may explore mediation with your employer or in more serious cases they can take employers to court to recover wages and seek penalties.

For employers:

Now more than ever, employers need to get payroll right. This means:

Making sure your staff are being paid correctly under the relevant Modern Award or enterprise agreement
Keeping abreast of changes to Award minimum rates of pay and conditions
Making sure you factor in allowances, overtime and other relevant award or enterprise agreement entitlements
Correcting any mistakes as soon as possible
Keeping accurate records

If you have identified an underpayment, you can find information about how to fix the underpayment at www.fairwork.gov.au. Employer associations such as your local chamber of commerce may also be able to assist.

Further help:

Marsh & Partners are able to review your payroll and advise whether you are paying wages in accordance with the relevant modern award or enterprise agreement. You can reach us on (07) 3023 4800 or at mail@marshpartners.com.au to organise a review.

You can find out more about working with Marsh & Partners here. As your Absolute.Account.Ability partner we’re on a mission to make your business life better. We’ll help you set goals for your business, devise an Action Plan to make them happen and meet with you regularly to ensure you stay on track.

Share this article on LinkedIn:

Article source:

Queensland Government, Office of Industrial Relations