If you are an employer that is currently, or have been paying workers, new regulations in Victoria make it an offence to deliberately underpay, dishonestly withhold wages or falsify entitlement records. To put it simply this is known as – wage theft.
Beware of committing wage theft
Wage theft may not be a term you are familiar with – but it should be.
All employees are entitled to receive at least the minimum pay and conditions outlined in the relevant award, which for most horticulture workers will be the Horticulture Award 2020. Some workplaces may pay under another award or have a workplace agreement.
It is important that you know what award or agreement relates to your workers and you have accurate information about correct pay rates and entitlements. This information is available from the FairWork Ombudsman or industry associations such as Growcom or the VFF.
Wage theft is illegal
On 1 July 2021, the Wage Theft Act 2020 (Vic) came into effect in Victoria. The Act makes it a crime for an employer to deliberately underpay employees, to dishonestly withhold employee entitlements, or to fail to keep proper records of employee entitlements in order to gain a financial advantage. These crimes are punishable by a fine of up to $198,264 or 10 years jail for individuals, or a fine of up to $991,320 for companies.
Not all incorrect payments are defined as wage theft, only offences involving dishonest conduct by employers. Honest mistakes or actions taken with due care and diligence are not considered wage theft. However, any inadvertent underpayments are still not allowed.
Your employees may suspect wage theft by examining a payslip. It is illegal not to provide payslips.
Who monitors suspected wage theft?
This will depend which state or territory you are based in, or where your employees were working. If you are in Victoria, there is a dedicated wage inspectorate that will investigate wage theft offences, including reports made by employees, and provide general advice about wage theft laws. They can only investigate matters that occurred in Victoria or have a link to Victoria.
Underpayments in any state or territory other than Victoria, will be managed by the Fair Work Ombudsman.
As an employer, you may choose to repay employee entitlements after an investigation by the wage inspectorate, but Victoria’s wage theft laws don’t specifically cover recovering money.
For anyone employing horticulture workers, calculating correct payments can be sometimes be difficult due to the interpretation of award clauses such as defining an “average competent worker” for piece-rate payments. While the new Victorian legislation specifically excludes honest mistakes, it is best to avoid the reputational and potential financial penalty associated with even an accusation of wage theft.
Regardless of whether it is short-term casual, or permanent full time employee, there are some simple rules that will help to ensure you do not suffer from potential wage theft penalties:
- Make sure you know what award or agreement your workers are covered by and what pay and other benefits you are legally required to pay.
- Check that you provide payslips that contain all information required by Fair Work.
- Contact the FairWork Ombudsman or seek professional advice to ensure all payments comply with relevant Federal and State legislation.
Ignorance is no excuse!