QLD Wage Theft: Legislation passed

Elizabeth Lyall

25 October 2020

On 14th September 2020, Part 1 of the Criminal Code and Other Legislation (Wage Theft) Amendment Act 2020 (Qld) was passed in parliament. This law criminalises wage theft in Queensland and focuses on punishing employers who intentionally ‘steal’ from their employees by failing to pay the correct wages and entitlements for work performed.

The new legislation amends the Criminal Code to allow for a definition of what employee entitlements are and that they are something that can in fact be stolen.

Such entitlements include:

Unpaid hours
Underpayment of hours
Unpaid penalty rates
Unreasonable deductions from wages
Unpaid superannuation
PAYG withholding entitlements
Underpayment through misclassification of an employee; wrong award classification and misuse of contractor classifications
Deductions from wages that have not been treated correctly

The Criminal Code has also been amended to allow for punishment of such crimes to be up to 10 years imprisonment. This level of imprisonment can be increased to up to 14 years when an employer is found to have committed fraud against an employee.

Another change relates to the powers of the Queensland Police Service in respect of wage theft. They now have the jurisdiction to investigate wage theft matters. For a successful case to be persecuted, Police Officers would need to prove that the employer intentionally stole wages and entitlements from employees. Where an employer accidentally underpaid an employee and were taking active steps to rectify the matter, this legislation would not apply to those situations.

The new law also amends the Industrial Relations Act 2016 (Qld) to allow a process to recover unpaid wages of amounts up to $20,000 in the Industrial Magistrates Court resulting in a faster and less costly experience.

What can employers do to prepare?
Due to the complexity of different awards, payrates, the use of casual employees, it is not unusual for payroll errors to be made. In many cases underpayments occur due to an administrative error or the shortcomings of the payroll systems used.

We have written previously about the impact of late paid superannuation which can also arise for the same reasons, that article can be found here. This can be a costly exercise and can also have a significant impact on Directors of companies.

So, whilst the errors may not occur due to a deliberate attempt to underpay employees, this can have far reaching impacts. To mitigate risk, it is recommended that employer’s conduct regular audits of their payroll systems to ensure that all staff are being paid correctly and take active steps to rectify any shortfalls identified.

Our experienced team can assist with a review of your payroll process including the amounts to help identify any issues you may have.