The Criminal Code and Other Legislation (Wage Theft Amendment Act 2020 (Qld) commenced on 14 September 2020.

The new legislation allows for the prosecution of wage theft as an offence of ‘stealing’ by amending the definition of stealing and introducing a higher maximum penalty where there is ‘stealing’ or ‘fraud’ by an employer with respect to an employee’s remuneration.

Queensland’s new wage theft laws have serious consequences for Queensland employers:

• intentionally failing to pay an employee (or another person on behalf of the employee) provides a maximum penalty of 10 years imprisonment; and
• a maximum penalty of 14 years for the offence of fraud where the offender is or was the employer of the victim.

Criminal Complaint for Wage Theft

A criminal complaint for wage theft can only be made after 14 September 2020.  For wage theft offences occurring prior to 14 September 2020, a complaint may still be made by an employee (or former employee) to the Fair Work Ombudsman or Queensland Office of Industrial Relations, however the complaint will not be investigated as a criminal offence.

For a wage theft offence occurring after 14 September 2020, a criminal complaint can be made by completing and returning a Wage Theft Report to Queensland police.  Our understanding is that a Wage Theft Report should only be submitted once options to pursue a wage recovery claim have been canvassed and it is believed the employer “intentionally stole” the wages.

Recovery of Underpayment

An employee (or former employee) may make a criminal complaint against an employer (or former employer) to initiate the police to undertake a criminal investigation, however this process is distinctly different from a wage recovery process.

A private sector employee is still able to make enquiries and complaints to the Fair Work Ombudsman; and for a public-sector employee, the Queensland Office of Industrial Relations.  Employers should note that these agencies may still take enforcement action against employers.

For an employee making a ‘fair work claim’ under the Fair Work Act 2009 (Cth), the claim can now be initiated through an expanded Industrial Magistrates Court jurisdiction.  For an employee making an ‘unpaid amount claim’ under the Industrial Relations Act 2016 (Qld), this type of claim may now be initiated through the Queensland Industrial Relations Commission or the expanded Industrial Magistrates Court jurisdiction.

Common factors leading to underpayment

The following list outlines some of the common mistakes that Aitken Legal see employers make, which may lead to claims for underpayment of wages and/or entitlements:

• applying the wrong industrial instrument (modern award, enterprise agreement);
• misclassifying an employee and so paying the incorrect hourly rate;
• ‘sham contracting’-  treating workers as contractors when the relationship operates more like an employment relationship;
• employees working through their lunch breaks;
• employees not receiving the required break between shifts;
• failing to pay applicable penalty rates, overtime rates and allowances;
• unauthorised or unreasonable deductions from employee wages; and
• not paying an eligible employee superannuation.

Employers now more than ever should proactively seek advice from one of Aitken Legal’s specialised employment lawyers, particularly in relation to assessing and managing your risk under Queensland’s new wage theft laws.