Wage theft information for workers

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New laws to criminalise deliberate wage theft by an employer against an employee have recently been introduced in Queensland. The new laws also provide a simple, quick and low-cost process for wage recovery claims These changes respond to the findings and recommendations of a 2018 Queensland Parliamentary Committee inquiry into wage theft in Queensland and the inquiry report A fair day’s pay for a fair day’s work? Exposing the true cost of wage theft in Queensland.  The Committee found that wage theft is widespread, affecting around 437,000 (approximately one in five) Queensland workers each year and costing more than $1 billion every year in unpaid or underpaid wages.

For more information view the frequently asked questions (PDF, 170 KB) and fact sheet (PDF, 974 KB) on how to recover your wages.

What is wage theft?

Wage theft can take various forms such as underpayment of wages, having entitlements such as leave and penalty rates withheld, and an employer not making required superannuation contributions on an employee’s behalf.

What are my rights?

As a worker in Queensland your rights and entitlements are protected by State and Commonwealth laws. Under these laws your minimum entitlements including the following are protected:

Employers are required to give every new employee a copy of the Fair Work Information Statement (the Statement) with information about conditions of employment when they start their new job.

Minimum rates of pay and deductions from wages

Minimum pay rates are set in an award, enterprise agreement or other registered agreement. If none of these apply, employees must be paid at least the national minimum wage, set each year by the Fair Work Commission.

Visit the Fair Work Ombudsman websiteor contact them on 13 13 94 for information on minimum pay rates, penalties and allowances under awards. Check out the FWO pay calculator to find your award if you’re not sure.
Any minimum hourly rate referred to in a modern award, enterprise agreement or under the national minimum wage is a ‘gross’ (before tax) hourly rate, and PAYG tax may be deducted.

Employers are usually prohibited from deducting money from an employee’s pay without their consent or from requesting an employee to pay ‘cashback’ amounts out of their wages back to the employer. Read more information on deducting pay and overpayments.

National Employment Standards (NES)

The NES are legal minimum entitlements which apply to all private sector employees in Australia, this includes paid annual leave (unpaid for casual workers), sick leave and  public holidays. An award, employment contract or enterprise agreement cannot provide for conditions that are less than the national minimum wage or the NES. If you are a casual employee you are not eligible for paid leave, but will instead be paid an additional 25% of your basic hourly rate.  If you are employed under an enterprise agreement, the agreement may provide for a different ‘casual loading’ figure.

Superannuation

Employers must pay superannuation contributions for eligible employees into a complying superannuation fund at least every three months payable. This is called the super guarantee and is currently 9.5 per cent of an employee’s ordinary time earnings.

The Australian Taxation Office (ATO) enforces compliance with superannuation obligations. If your employer is not paying superannuation contributions on your behalf at least quarterly and if you are eligible for superannuation contributions, you can make a complaint through the ATO’s website, or contact them on 13 10 20.

Trade unions

Trade unions provide support and advice to employees to help them understand and protect their rights and obligations in the workplace. Your trade union can provide advice about your entitlements and may be able to help you recover your wages. Visit australian.unions.org.au or call Australian Union on 1300 486 466. The Fair Work Ombudsman (FWO) can also provide guidance on the relevant union to contact for your industry. Information about Queensland-registered unions for workers in the Queensland industrial relations system (generally local government workers and Queensland Government employees) can be found on the Queensland Industrial Relations Commission website.

What can I do?

If you believe you have been underpaid you can raise the matter with your employer, seek assistance from your union or make a complaint to the Fair Work Ombudsman at fairwork.gov.au or call 13 13 94 for wages and other entitlements. For superannuation contact the ATO at ato.gov.au or 13 10 20.

The FWO can provide advice on minimum hourly rates and how to raise a possible underpayment of wages with your employer. They may explore mediation with your employer or in more serious cases they can take employers to court to recover wages and seek penalties.

If you are an employer and have identified an underpayment, you can find information about how to fix the underpayment at www.fairwork.gov.au. Employer associations such as your local chamber of commerce may also be able to assist.

How can I recover my wages?

If the matter is not resolved through informal measures or after making a complaint to the Fair Work Ombudsman or the ATO, you may wish to seek legal advice about taking wage recovery action against your employer in court.

You can pursue the recovery of wages owing to you through the Courts via a simple, low-cost process.

Before a wage recovery claim reaches the court, you will have an opportunity to engage in a conciliation process where the parties are assisted by an experienced industrial commissioner. Conciliation is an informal process intended to help the parties reach agreement or reduce matters in dispute to achieve a timely, cost-effective, proportionate and agreed resolution where possible.

To begin a claim you will need to complete and file the appropriate form, have it signed by a Justice of the Peace and lodge it with the court. Your claim will then be referred to an experienced Industrial Commissioner of the Queensland Industrial Relations Commission for conciliation (which may be in person or by telephone or video conference). View information about the process of a claim.

If the matter is not resolved in conciliation, your claim will progress to a court hearing. You and your employer will each have an opportunity to present evidence in the form of documents or witnesses.

You are encouraged to seek legal advice before you lodge a claim. Some links for advice or assistance are included below on this page.  

When is wage theft a crime?

New laws were passed in Queensland Parliament on 9 September 2020 amending section 391 (‘Definition of stealing’) of the Queensland Criminal Code to capture deliberate, intentional behaviour leading to under or non-payment of entitlements as a criminal offence. This could include where deliberate wage theft occurs through:

  • unpaid hours or underpaid hours
  • unpaid penalty rates
  • unreasonable deductions
  • unpaid superannuation
  • withholding entitlements
  • underpayment through intentionally misclassifying a worker including wrong award, wrong classification, or by ‘sham contracting’ and the misuse of Australian Business Numbers (ABN)
  • authorised deductions that have not been applied as agreed.

How do I make a criminal complaint?

Employers found to be deliberately stealing from their workers can be prosecuted with a crime and sentenced to time in jail. Underpayments brought on by an honest mistake or delay cannot attract criminal penalties. To successfully charge an employer with stealing, the employer must be shown to have intentionally withheld an employee’s entitlements.

If you believe that your employer’s conduct could be a crime, you may wish to make a criminal complaint against your employer. To do this, please review the relevant Queensland Police Service (QPS) information about wage theft, and if appropriate, complete the wage theft report form available on the QPS page. This form is also available in person at a police station.

Before making a complaint, please be aware that police are unable to assist with wage recovery matters in the courts. Making a wage theft complaint to police may not result in the recovery of your unpaid wages or entitlements, even if your employer is convicted of stealing.

In addition, please be aware that you may be required to provide evidence during the investigation and prosecution processes of a criminal complaint, including potentially appearing in court as a witness. 

What if I need assistance or further information:

Workers and employers can seek advice or assistance from other organisations including:

For international students, your educational institution may also be able to assist.

Government agencies:

Fair Work Ombudsman
Helps employees understand their rights and responsibilities under Australian workplace laws and investigates and ensures compliance with the Fair Work Act 2009.
Phone: 13 13 94

Australian Taxation Office
The ATO can help employees and employers understand their rights and responsibilities in relation to PAYG tax and superannuation contributions required under the super guarantee. The ATO also has taskforces dealing with tax avoidance and illegal 'phoenixing' activity.
Phone: 13 28 61 for individuals, 13 28 66 for business

Workplace Health and Safety Queensland
Educates workers and employers about their work health and safety obligations and enforces compliance with the Work Health and Safety Act 2011.
Phone: 1300 362 128

Queensland Human Rights Commission
The Queensland Human Rights Commission provides services to resolve complaints about discrimination, sexual harassment, vilification, victimisation as well as other contraventions of the Anti-Discrimination Act 1991 and the Public Interest Disclosure Act 2010. The QHRC also delivers training and promotes public discussion on human rights.
Phone: 1300 130 670

Commonwealth Department of Home Affairs
Provides information about visas.

Last updated 21 October 2020