What is Wage Theft in Queensland?

You may be wondering what wage theft is in the state of Queensland.

Wage theft is a criminal offence and, if found guilty, one may face serious consequences.

Wage theft is established as an offence under the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020.

This article will address the basic details of the crime and its significance to both employers and employees in Queensland.

What is Wage Theft?

Wage theft is, in the simplest terms, the underpayment (or lack of payment) of an employee.

Wage theft covers a large variety of offences and takes many forms, so it is important you are aware of the actions that contribute to an act of wage theft to avoid either falling victim to the offence or committing it against your employees.

Actions of wage theft may include depriving employees of minimum wage rate, failing to pay employees’ superannuation, or classifying employees under different titles to intentionally deprive them of benefits (as explained later in the article).

As of September 2020, wage theft has been officially titled a criminal offence in the state of Queensland and is described as an action similar to pre-established offences such as fraud or stealing.

Been charged with wage theft in Queensland? Be referred to the best employment lawyers on the Sunshine Coast

What the Law Says

The Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 inserted a law into the Criminal Code that allows wage theft to be prosecuted as stealing.

The amendment states:

“For stealing that is a failure to pay an employee, or another person on behalf of the employee, an amount payable to the employee or other person in relation to the performance of work by the employee—

1. the amount is a thing that is capable of being stolen; and
2. subsection (6) does not apply; and
3. the amount is converted to the person’s own use when—
4. the amount becomes, under an Act, industrial instrument, or agreement, payable to the employee or to the other person on behalf of the employee; and
5. the amount is not paid.

The Act further amended section 408C of the Criminal Code, inserting that the action of fraud is punishable by a maximum of 14 years imprisonment, a 9-year addition to the maximum punishment for the general offence of fraud if the offender is or was the employer of the victim.

What are the Consequences of Wage Theft?

The theft of wages is, as stated in the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020, an offence in Queensland and those found guilty of it before a court of law may acquire serious consequences.

Previous laws related to the theft of employee wages were deemed insufficient by many and were considered a poor deterrent for businesses to not commit acts of wage theft against their employees.

In response to this perception, new laws were introduced in the year 2020 to amend such issues with the laws.

Those found guilty of intentionally depriving their employees of their rightful wage are liable for a maximum of 10 years imprisonment.

Furthermore, the criminalisation of the act means that those who are victims of wage theft may go to the police to complain about or report the matter, as with all other crimes.

What Behaviours may be Considered Wage Theft?

Wage theft is quite a broad term and covers a range of actions and behaviours. These behaviours may include:

• Paying an employee below the minimum wage for their age or award or lower than the agreed upon rate; or
• Failing to pay for breaks or overtime; or
• Failing to pay for the employee’s rightful benefits, such as superannuation; or
• Entering agreements for the purpose of intentionally depriving employees of their entitlements. This will likely involve actions referred to as “illegal phoenix activity” which takes place when an employer transfers assets out of the business, for lower than market value, before liquidating the company to intentionally prevent employees from receiving rightful entitlements.
• Performing an act of “sham contracting” against an employee. Sham contracting is the act of an employer classifying an individual as an independent contracting when their employment should classify as an employee under the circumstances of their position at the establishment.

Been charged with wage theft in Queensland? Be referred to the best employment lawyers on the Sunshine Coast

What Happens if You Accidently Underpay Employees?

So, you think you may have unintentionally underpaid your employee. Try not to panic!

It is vital that you address the matter at the nearest possible opportunity and do not, under any circumstances, avoid the issue.

You must also pay the employee what they are owed at once.

To avoid this issue occurring in the future, it is important you stay educated on the matter and are up to date on employee awards and laws.

When it comes to your attention that you have been underpaying an employee, there are steps you should take as recommended by the Fair Work Ombudsman to ensure the employee is properly paid for their work.

1. Work out how long the employee has been underpaid: You may do this by searching payment records from the past, for their entire employment period if necessary.
2. Work out how much they are owed: Begin with how much the employee was paid for the underpayment period. From this point, you can then work out how much they should have been paid. You can do this by calculating the hours they have worked and when and what the employees’ pay rate should have been for the period aforementioned.
3. Work out how much they have been underpaid: You can do this by simply subtracting the amount they were paid from the amount they should have been paid.
4. Arrange pay-back terms with the employee: You should have an open conversation with the employee, addressing the error of their payment, why it may have happened and the terms you wish to come to regarding how you will be paying them back. If your business cannot afford to pay them back in full on one occasion, arrange a payment plan with the employee that you both agree on.

Wage Theft Key Takeaways

Wage theft is a serious matter, so it is important that you are knowledgeable about it whether you are an employer or an employee.

If you are accused of wage theft, it is recommended you seek the assistance of a lawyer, as if found guilty you may face up to 10 years imprisonment.

Been charged with wage theft in Queensland? Be referred to the best employment lawyers on the Sunshine Coast