Victoria will become the first State in Australia to criminalise the underpayment of employees or the dishonest withholding of employee entitlements on July 1. The Andrews’ government’s wage theft laws will come into effect on that date and they will be administered by Wage Inspectorate Victoria.
Punishable offences under Victoria’s new wage theft laws
There are 4 offences under the wage theft legislation:
- Deliberately underpaying employees (for example, not paying minimum amounts outlined in an employee’s award, workplace agreement or employment contract).
- Dishonestly withholding entitlements such as wages, penalty rates, annual and sick leave, allowances and the compulsory employer superannuation guarantee (It’s important to note that the super guarantee is also scheduled to increase from 9.5% to 10% of an employee’s ordinary time earnings on July 1).
- Falsifying records of employee entitlements with the aim of gaining a financial advantage.
- Not keeping employee entitlement records with the aim of gaining a financial advantage.
For any offence to be committed, there must be deliberate, dishonest conduct. The Wage Theft Act doesn’t apply to honest mistakes and it’s not retrospective. In addition, it only applies to employees, not to independent contractors.
Employers cannot get around the wage theft legislation by getting employees to sign employment contracts that contain pay and entitlements that are below their minimum legal entitlements.
Minimum pay rates and employee entitlements are available from the Fair Work Ombudsman.
Employees can anonymously report suspected cases of wage theft to be independently investigated by Wage Inspectorate Victoria.
Penalties for breaching the provisions of the Wage Theft Act in Victoria
Penalties for any of the 4 punishable offences above will depend on the severity of the breach. Individuals (such as sole traders, partners and company directors or office holders) can be fined up to $198,264 and/or face up to 10 years imprisonment.
Companies can be fined up to $991,320.
What should you do if you need help with wages?
If you need assistance to ensure you are paying employees their correct pay and entitlements including under an Award, please contact your legal advisor. You can also find more information regarding pay and entitlements at https://www.fwc.gov.au/
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