In brief 3 min read
A new law proposed in Queensland would make it clear that wage theft can be prosecuted as stealing and fraud.1 However, these laws may be short-lived, given the Federal Government is considering similar laws that would cover the field for Fair Work Act 2009 (Cth) offences.2
The new laws would make it an offence to 'fraudulently' fail to pay an employee an amount payable in relation to the performance of work under an Act, industrial instrument or agreement. The offence would be punishable by imprisonment for up to 10 years.
The threshold for committing an offence would be high. The prosecution would need to prove an intention to act 'fraudulently', which would occur when a person intended to (relevantly):
- permanently deprive the employee of the relevant amount;
- pay the amount to the employee on conditions that the employer may not be able to satisfy; or
- use the amount for their own use, even if they intend to repay it to the employee afterwards.
Under the definitions in the Bill:
- an 'Act' includes the Fair Work Act and the Industrial Relations Act 2016 (Qld);
- an 'industrial instrument' includes:
- an enterprise agreement or modern award under the Fair Work Act; and
- a certified agreement or modern award under the Industrial Relations Act.
'Agreement' is not defined, but would include an employment contract.
The Bill does not define what constitutes 'an amount payable to an employee', but a briefing paper3 accompanying the Bill states that the amendments are intended to capture wage theft arising from:
- unpaid hours or underpayment of hours;
- unpaid penalty rates;
- unreasonable deductions;
- unpaid superannuation;
- withholding entitlements;
- underpayment through intentionally misclassifying a worker, including the wrong award, wrong classification or by ‘sham contracting’ and the misuse of Australian Business Numbers; and
- authorised deductions that have not been applied as agreed.
Wage theft could also be prosecuted as fraud. Fraud in relation to wage theft would be punishable by imprisonment for up to 14 years.
The offence would be committed when an employer 'dishonestly' engaged in any of the acts that give rise to the offence of fraud under the Criminal Code in Queensland, such as:
- applying to their own use property belonging to the employee;
- gaining a benefit or advantage for any person; or
- causing a detriment to any person.
Liability could extend to anyone who knowingly aids in the commission of the offence, which could include senior employees in a business.
Currently, employees in Queensland with a small claim of less than $20,000 under the Fair Work Act can pursue the claim in the Queensland Magistrates Court or the Federal Circuit Court. Under the proposed new laws, employees would be able to commence proceedings in the Industrial Magistrates Court, and (by agreement) have their claims conciliated. The Industrial Magistrates Court would not be bound by the rules of evidence and procedure.
The Bill has been referred to a committee, with a reporting date of 28 August 2020.