Wage theft information for workers

Wage theft information for workers

In 2018, the Queensland Parliamentary Education, Employment and Small Business Committee (the Committee) conducted an inquiry into wage theft in Queensland (the inquiry). On 16 November 2018, the Committee tabled its report – A fair day’s pay for a fair day’s work? Exposing the true cost of wage theft in Queensland - making 17 recommendations for action to address wage theft.

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. In addition, the Committee heard the annual loss associated with the underpayment or non-payment of superannuation was estimated at $1.12 billion.

On 15 February 2019, the Queensland Government’s response to the inquiry report was tabled, accepting all 17 recommendations of the inquiry. A copy of the ministerial media release is here.

Of the 17 recommendations, 11 were for action by the Australian Government. The Queensland Government has raised these with the Australian Government. Six recommendations were for action by the Queensland Government, and work on implementing these recommendations is underway to address wage theft in Queensland. These include:

  • consulting with stakeholders to determine the best way to implement the Committee’s recommendation that wage theft be criminalised where it is deliberate and reckless
  • informing and educating Queensland workers about their rights and entitlements
  • ensuring Queensland Government procurement policies allow for action to be taken against employers that have underpaid workers
  • ensuring that wage recovery processes for Queensland workers are simple, quick and low cost.

On this page:

 

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. Some common issues are discussed below.

What are my rights?

As a worker in Queensland your rights and entitlements are protected by a number of State and Commonwealth laws. This means you are entitled to:

Common issues

Unpaid wages or underpaid wages can occur due to a range of factors. These include:

  • paying incorrect hourly rate
  • 'sham' contracting – making employees work as contractors on ABNs
  • not paying penalty rates for overtime hours and weekend or public holiday work
  • paying cash in hand
  • payment 'in kind' (e.g. meals, retail discounts)
  • requiring prospective employees to work unpaid trial or 'test' shifts
  • requiring employees to work through their breaks or to turn up to work early or stay after closing time to close up
  • requiring employees to spend their own money on costs that are the cost of running a business (equipment, training, insurance excesses etc)
  • not paying employees for attending training or even doing online training, or for attending staff meetings.

Deductions from wages or requiring that employees pay back money out of their wages (for example for till shortages) will in most cases not be legal.

What can I do?

If you work for a business or employer who is not providing these minimum entitlements and rights or otherwise not paying properly for hours worked, or if you know someone who is, there are things you can do.

There are a number of avenues available for further information regarding your entitlements and to assist in raising the issue with your employer, and in pursuing those entitlements by making a complaint or a wage recovery claim.  

You can seek assistance from your union or make a complaint to the Fair Work Ombudsman.

Employers can find information about how to fix an underpayment at www.fairwork.gov.au . If you are a member of an industry association or organisation you may be able to seek their assistance.  

Employees can take wage recovery action - you can make an employment claim in the Queensland Magistrates Court. You may wish to seek legal advice, for example from a community legal centre, or advice from your union. You do not need to be represented in court in these matters; employment claims are intended to be a simple, low-cost wage recovery process.

If you make an employment claim in the Magistrates Court, your claim will be referred to the Queensland Industrial Relations Commission (QIRC) for a compulsory conciliation hearing in the first instance.

More information on how to make an employment claim can be found here:Magistrates Court Employment claims, Fair Work Ombudsman information and guide.

Information on organisations and agencies that might be able to assist you can be found here .

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 (NMW), set each year by the Fair Work Commission.

Visit the Fair Work Ombudsman website for information on minimum pay rates, penalties and allowances under an award and check out the pay calculator to find your award if you’re not sure. Each year the Fair Work Commission reviews the national minimum wage and pay rates under awards. Any changes that are made begin on the first full pay period on or after 1 July.  

Special national minimum rates apply for junior employees, apprentices and trainees, and employees with a disability who are unable to perform the range of duties and who meet the impairment criteria for receipt of a Disability Support Pension1. .
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 back amounts out of their wages.

National Employment Standards (NES)

The NES is a set of minimum entitlements enshrined in law (Fair Work Act 2009 (Cth)) which apply to all private sector employees in Australia. An award, employment contract or enterprise agreement cannot provide for conditions that are less than the national minimum wage or the NES.

The 10 minimum entitlements of the NES are:

  • maximum weekly hours
  • requests for flexible working arrangements
  • parental leave and related entitlements
  • annual leave
  • personal/carer's leave, compassionate leave and unpaid family and domestic violence leave
  • community service leave
  • long service leave
  • public holidays
  • notice of termination and redundancy pay
  • fair work information statement

The Fair Work Ombudsman (FWO) provides information about the obligations of employers regarding payment of workers including minimum wages, pay slip and record-keeping requirements and when employers can make deductions. The FWO's pay calculator can be used to work out pay rates, penalties and allowances.

Superannuation

Employers must pay superannuation contributions for eligible employees into a complying superannuation fund at least four times a year (by quarterly due dates). Generally super contributions are payable if an employee is paid $450 or more before tax in a calendar month. The minimum amount payable is called the super guarantee, which is currently 9.5 per cent of an employee’s ordinary time earnings. If an employer doesn’t pay the super guarantee on time, the Australian Taxation Office (ATO) may apply charges, called the super guarantee charge.

The ATO enforces compliance with superannuation obligations. If your employer is not paying super contributions on your behalf at least quarterly and if you are eligible for super contributions, you can go to the ATO’s website to make a complaint, or phone 13 10 20.

Safe workplaces

Your employer has a legal responsibility for your health and safety at work. You should receive health and safety information, training and personal protective equipment (if required) free of charge.

Find out more about work health and safety in Queensland.

Hours and breaks

Awards, enterprise agreements and other registered agreements prescribe maximum hours of work rest breaks, overtime and rostered days off. Find out how these apply in your Award or Agreement on the Fair Work Ombudsman website.

Employment terms and conditions

Employers are required to give every new employee a copy of the Fair Work Information Statement (the Statement) when they start their new job. The Statement should provide you with information about conditions of your employment. The Statement is also available in other languages.

Bullying, harassment and discrimination

Everyone has a right not to be bullied, harassed or discriminated against at work.

If you have been bullied at work, Workplace Health and Safety Queensland (or phone 1300 362 128) has information and guides about how to deal with workplace bullying and employers’ obligations to prevent workplace bullying and harassment.

The FWO provides information on bullying and harassment and information on discrimination at work.

The Anti-Discrimination Commission Queensland also provides resources and can hear complaints about discrimination including discrimination at work.

All workers in Queensland have avenues available to seek an order to stop bullying through:

  • the Fair Work Commission for employees employed by private sector trading corporations (ie. Business Name Pty Ltd)
  • the Queensland Industrial Relations Commission for employees of unincorporated private sector employers and employers in the Queensland industrial relations jurisdiction (generally, local government, Queensland public sector and Parents and Citizens’ Associations).

Unions

Unions provide support and advice to employees to help them better understand their rights and obligations in the workplace. Unions are registered under State and Commonwealth laws as industrial organisations of employees.

Employers cannot dismiss, threaten dismissal or discriminate against an employee due to their membership or non-membership of a union.
For help finding which union covers the work you do, you can go to this link: or call 1300 486 466. The FWO can also provide guidance on the relevant union to contact for your industry.

Further information regarding Queensland-registered unions can be found here: Queensland Industrial Relations Commission.

What if I need assistance or further information:

For international students, your educational institution should also be able to provide you with some assistance.

If you are a school student, your school guidance counsellor or chaplain may be able to provide you with information.

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

  • Working Women Queensland http://wwq.org.au/
  • Young Workers’ Hub http://ywhub.org.au/
  • JobWatch http://jobwatch.org.au/
  • Legal Aid Queensland https://www.legalaid.qld.gov.au/Home
  • Community Legal Centres Queensland https://communitylegalqld.org.au/
  • For employers, all regulators provide information tailored for businesses and industries. The Queensland Government Business Portal www.business.qld.gov.au and the Department of Employment, Small Business and Training also have resources available for businesses and employers.
  • There are employer organisations and associations such as industry peak bodies and Chambers of Commerce and Industry which may be able to provide information and assistance, on an ad hoc or membership basis, as well as industrial and employee relations specialist businesses and consultants.

View frequently asked questions or a fact sheet on wage theft.

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).
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 65 for individuals, 13 72 26 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

Anti-Discrimination Commission Queensland
The Anti-Discrimination Commission Queensland (ADCQ) 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 ADCQ also delivers training and promotes public discussion on human rights.
Phone: 1300 130 670

Commonwealth Department of Home Affairs
Provides information about visas.

Business and Skilled Migration Queensland
Provides information about skilled migration and living and working in Queensland.
Phone: (07) 3514 3013

 

 

 

[1] From www.fwc.gov.au www.fwc.gov.au/awards-and-agreements/minimum-wages-conditions/national-minimum-wage-orders#field-content-1-heading

 

 

Last updated 03 July 2019