Intentional acts of underpayment
The offence only applies to intentional acts of underpayment meaning that unintentional errors or genuine mistakes will not attract criminal liability. Whilst this may appear to make the scope of the offence quite limited, it’s important to remember that the intention of a body corporate can be established in a number of ways. Under the Criminal Code Act 1995 (Cth) intention can mean tolerating non-compliance or failing to create and maintain a corporate culture that was necessary to comply with a relevant provision. With this in mind, if your company’s payroll systems, policies and processes are lax, contain clear gaps and payment mistakes occur regularly, you may be at risk. It is also important to ensure that you keep up with your statutory payment obligations by paying at the correct award rates, for example.
Small business exemption
There is exemption from criminal liability for wage theft for small businesses (those with 15 or fewer employees) under the Voluntary Small Business Wage Compliance Code (Code). The Fair Work Ombudsmen states that “we can’t refer a small business employer’s conduct for possible criminal prosecution if we’re satisfied that they’ve complied with the Code in relation to an underpayment.” It should also be noted that where conduct does not attract a criminal penalty, the Ombudsmen may still take civil action in respect of an underpayment.
The Ombudsmen has published a useful guide for employers which is available here. It advises that, whilst it applies to small businesses, the Code contains useful information for businesses of all sizes and should be consulted for best practice guidance.
Practical steps
There are many practical steps that businesses can take in order to ensure that they are paying their employees correctly. No one factor is critical and in making any decision about wage theft, the Ombudsmen will consider the employer’s overall approach to employee pay. Some of the steps listed in the guidance include:
- Take steps to check that you’re paying employees correctly and staying up to date with changes.
- Make sure your employees are correctly classified under their award or enterprise agreement.
- Understand your obligations towards trainees or apprentices under their training contracts.
- Pay penalty or overtime rates as required.
- Keep accessible records of wages paid
- Fix underpayments or issues quickly when they occur.