Senate committee calls for national laws criminalising wage theft

Date published

13 March 2022

In March 2022, a senate inquiry tabled its final report into the unlawful underpayment of employees.

The committee found that wage theft is “systemic, sustained and shameful” and is often “a deliberate decision of businesses that participate in a race to the bottom to bring down wages and increase profit.” Underpayment and unpaid superannuation is estimated to total in excess of $6 billion a year.

The report cited RLC’s joint submissions with WEstJustice extensively, making 19 recommendations, including that changes are made to the Fair Work Act 2009 to criminalise wage theft in Australia. Such reforms would mean that exploitative employers could be criminally prosecuted for the theft of all employee wages, including loadings, penalty rates, overtime, leave, allowances and the superannuation guarantee.

Last year Redfern Legal Centre, Kingsford Legal Centre and Inner City Legal Centre established the Employment Rights Legal Service, which provides free legal advice to migrants and vulnerable workers in NSW.

Migrant workers often face additional barriers when trying to find work, accessing the legal system, and enforcing their employment rights.

“It is a brutal fact that many migrant workers simply accept wage theft as the status quo,” RLC employment lawyer and ERLS coordinator, Sharmilla Baron said.

Report recommendations

The committee’s report made a number of recommendations relating to migrant workers, including that the Australian Government:

“explore” reforms to visa laws to allow migrant workers who have been exploited or underpaid to remain in Australia until the relevant legal processes for recovery of lost wages or conditions is finalised, and
extend the Fair Entitlements Guarantee to all employees, including those on temporary visas to allow migrant workers to recover unpaid wages and entitlements when their employer becomes insolvent, and
establish a formal and legally binding firewall between the Fair Work Ombudsman and the Department of Home Affairs to protect whistle-blowers and temporary visa holders that report exploitation or wage theft to the Fair Work Ombudsman and extend protection to exploitation and wage theft claims progressed through the courts

RLC has long advocated for changes to support migrants facing exploitation to come forward without risking their visa status. Speaking to ABC, Ms Bargon stressed that the report findings could have gone further to protect temporary visa holders, explaining that many of our clients “won't even want to raise the possibility of underpayments” with employers for fear that they will put their visa at risk.

"It’s critical that migrant workers have the comfort of knowing that they won’t have their visas cancelled while they try about bring legal action against their employers to recover unpaid wages,” Ms Bargon said.

If you need support, visit erls.org.au or call 02 8004 3270.

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