CODE 2, VOL 34, NO 48 : 09 september 2020
QUEENSLAND WAGE THEFT LEGISLATION PASSES PARLIAMENT
The Queensland Criminal Code 1899 has for over a century included an offence for ‘stealing as a servant’. You will have seen many media reports over the years of workers being convicted of such criminal offences.
Following input from your union to the review of wage payment compliance in Queensland, and consultation along with other unions with the Minister for Industrial Relations, in September 2020 the Queensland government passed historic legislation, which, for the first time, creates a criminal offence of (in simple terms) ‘stealing as an employer’.
The offence will include that failing to pay an employee an amount payable under an industrial instrument to the employee can result in a criminal charge. If convicted, the person may face jail time of up to 10 years.
There are some specific legal provisions that relate to this charge being able to be brought and I have explained those basics below.
What can be stolen?
Wages or other entitlements due to an employee will be considered as a ‘thing’ that can be stolen, and that means if an ‘industrial instrument’ or the Industrial Relations Act 2016 or another ‘agreement’ provide for a monetary entitlement, and that money is not paid, the money owed to the employee is a thing that is stolen by the employer.
The term ‘industrial instrument’ includes the Auxiliary Firefighters’ Award – State 2016, the Queensland Fire and Emergency Service Employees Award – State 2016, and the Queensland Fire and Emergency Service Certified Agreement 2019.
The term ‘agreement’ in this context can most easily be described for you and your colleagues as a local, regional or state policy or agreed provision for payment of money for particular purposes. There are many of these local agreements in place across all QFRS regions.
To summarise what can be stolen, any of the following are examples (but there are other examples that may also apply) –
- Unpaid hours
- Underpayment of hours
- Unpaid penalty rates
- Unauthorised or unreasonable deductions
- Unpaid superannuation
- Withholding any entitlement.
What if it was a ‘mistake’?
It is important to note that the failure to pay must be ‘deliberate’ or ‘reckless’, in that ‘accidentally’ not paying something is not going to become a criminal offence.
Deliberate (and unfortunately systemic and organised) action to deny wages and entitlements has unfortunately previously occurred within QFRS and whilst I am not alleging it is happening now, this legislation provides additional avenues for your union to act on this behaviour if identified. The term ‘deliberate’ has its natural meaning, in that the behaviour must be done consciously and intentionally.
Reckless behaviour has historically been even more prevalent and it is this area of lack of due care and consideration in paying your wages, lack of determining what entitlements do apply (including through consulting with your union) and most importantly, the comfort of those involved of knowing no consequences apply to them and/or disregarding consequences for their actions, when they are so lazy or haphazard in determining what your wage and entitlement rights are.
Who can be charged with stealing?
This is an important point to clarify.
As employees of the State of Queensland (QFRS or QFES), you are protected from liability through both general common law provisions (known as vicarious liability) and some specific provisions in legislation. For example, for your work as firefighters or fire communication officers under s52 of the Fire and Emergency Services Act 1990, s153B & 153C provide protections from liability when things you do or omit to do are done or omitted in a reasonable way and are not done or omitted to be done wilfully and/or negligently.
When it comes to wage theft, accidental failure to pay you is covered by the liability protections mentioned above, but as with all liability protections, if the actions are deliberate, wilful and/or negligent, or reckless, then the person committing them is not necessarily protected from liability and can be charged as an individual.
This means, in the most simple terms, anyone within QFRS or QFES who deliberately denies you payment, whether they be a direct line manager, regional management or senior management, or payroll or indeed any other person involved in the deliberate and/or reckless behaviour, can be charged with a criminal offence.
And finally, and this is very important, if charged, the concept of ‘reverse onus of proof’ applies, in that the person/s charged must prove to the court that the behaviour didn’t happen as alleged, rather than the person bringing the charge having to prove it happened.
What does this mean for QFRS?
In circumstances where it appears deliberate and/or reckless behaviour regarding members not being paid their wages or entitlements is present, your union will be very closely watching the behaviour and those involved in paying you and managing you, because the wage theft legislation allows for a union to provide a formal complaint directly to the Queensland Police for investigation with a view to have criminal charges of wage theft applied to those involved.
In conclusion, I’d like to think these laws will never need to be used by your union, but now that they are going to exist, they will be in the forefront of your union representative’s minds when considering underpayment of wages and similar matters. QFRS will have an elevated sense of caution regarding their actions, because finally, there may be some consequences (criminal charges) for repeat offenders.
I’ll keep you updated on this historic change to employment laws in Queensland.
John Oliver - General Secretary
Authorised by John Oliver General Secretary
United Firefighters' Union of Australia, Union of Employees QLD