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Speech on Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020

On Wednesday 9 September 2020, I started to give a speech on the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020. Unfortunately, I was cut as the time allocated for debating the bill ended.

You can read the full speech I intended to give below.

I rise to strongly support the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020. I would like to applaud the government, and most importantly the workers and their unions who have pushed this issue to the forefront. It’s long been a sore injustice that the service station worker who pockets a chocolate bar faces a charge with a maximum penalty of imprisonment - five years I think is the current maximum - but if the same worker in the same service station gets robbed by their boss of pay they’ve earned, that robbery isn’t even considered a crime.

It hardly needs repeating that wage theft, whether through direct underpayment, stinting on penalty rates, unpaid overtime, overcharging for accommodation or harsh deductions costs Queensland workers millions upon millions every year. We’ve heard already in this debate that wage theft in some form affects one in four Queensland workers. In my electorate, there are thousands of casuals, young people and older folks, working in services, retail and hospitality who face a particularly sharp power imbalance, which means wage theft is easier for bosses to get away with. This Bill will hopefully begin to shift that power imbalance. Of course, the best way to do that in the long term is to build job security, and for workers themselves to organise together in their own workplaces and with their unions.

The Bill focuses only on willful, reckless or deliberate wage theft, rather than accidental underpayment, as appropriate for a criminal offence. It amends and expands the definition of “stealing” in the Criminal Code and provides that stealing includes a failure to pay an employee an amount payable to the employee in relation to the performance of work by the employee. That includes a wide range of conduct like unpaid hours or underpayment of hours; unpaid penalty rates; unreasonable deductions; unpaid superannuation; withholding entitlements; underpayment through intentionally misclassifying a worker, including wrong award, wrong classification or by ‘sham contracting’ and the misuse of ABNs; and authorised deductions that have not been applied as agreed.

Back at the start of 2019 I met with Kate, a young person in my electorate working with the Young Workers Hub. I was very pleased to lend my support to their campaign for the government to adopt the recommendations of the Parliamentary inquiry on wage theft, and I’m pleased to be standing here today as we prepare to make wage theft a crime. 

Briefly on some of the sillier arguments against this Bill - I just wanted to pull out one snippet from the Australian Industry Group’s submission that gives the game away. They say, quote “Implementing criminal penalties for wage underpayments would discourage investment, entrepreneurship and employment growth;”  - I think most people would agree that if your entrepreneurship depends on underpaying workers then you need a better business idea!

As we rebuild from the COVID-19 pandemic and the recession we’re facing, it’s vital that the jobs we create are good, secure and well-paid jobs that pay the bills and afford workers respect. This Bill is a useful, although by no means the only, part of that story. 

I would like to very strongly support the submissions and concerns raised by several submitters to the inquiry on this Bill. The Queensland Council of Unions, the Young Workers Hub, the United Workers Union, the Qld Nurses and Midwives Union, the Australian Workers Union, Legal Aid Queensland, Maurice Blackburn and others have all made very constructive recommendations as part of inquiry on this Bill, as well as earlier in contributions to the general Parliamentary inquiry. 

There are some I’d like to highlight here, especially since the Committee, in recommending the Bill be passed, has not taken on board much of the useful feedback from those submitters and others. 

First the recommendation that the conciliation process for Fair Work claims for wage recovery commenced under the Queensland Industrial Magistrates Court, be mandatory, with employers and employees required to make ‘reasonable attempts’ at reaching agreement. The Parliamentary Committee has happily adopted that recommendation as well, and I am disappointed that the Government’s circulated amendments don’t implement the Committee’s recommendation. 

It is disturbing to see that absent any amendments the government is seeking to remove the existing mandatory conciliation process under Magistrate’s Court Employment Claims with an “opt-in voluntary process” as law firm Maurice Blackburn puts in in their submission. This recommendation is crucial to making sure that workers can actually get their money back in a timely way. We know from experience with other courts and tribunals that ordinary people don’t have the time or energy to chase bosses, landlords or others through the courts to recover what’s theirs. We won’t break wage theft as a business model unless it’s easy and quick for workers to get what’s theirs. We will get best outcomes, as the Young Workers Hub have pointed out, when the police and Department of Public Prosecutions are not involved until all the parties have had a chance to talk and it’s clear what the rules are. Young workers, undocumented and migrant workers, and those with a criminal record are very unlikely to report wage theft to the police in the first place. 

Second, the recommendation that there be a central reporting point for wage theft, and that the process be simple and without legal or court costs for workers. 

Thirdly, a number of submitters have pointed to the need to expand the definition of “stealing” which is proposed in the Bill. One example raised by the QCU and the Young Workers Hub is the story of Declan, a worker at the Pig N Whistle Riverside, who was forced to hand over his personal debit card so his manager could charge him for unpaid customer bills. I am asking the Minister now to confirm that conduct like this would be covered by the definition proposed in the Bill, and if not, that she bring forward amendments to make sure that it is. 

The AWU and the QNMU make similar observations in their submissions. In particular, the requirement that the payment in question must be “in relation to the performance of work by the employee” might act to artificially constrain the definition of wage theft, missing important issues like non-payment of annual leave, or overcharging for employer-provided accommodation. 

Finally the recommendation that the Act be reviewed two years after implementation - that is vitally important and I’m hoping that the government will confirm today they intend to do that. 

I again reiterate my support for this Bill, and for building up the position of working Queenslanders to defend their rights - I commend the Bill to the House.

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