Wage theft and wage recovery information for workers

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Wage theft is a criminal offence in Queensland. Employers engaging in deliberate wage theft from their employees face the risk of up to 10 years imprisonment.

A Queensland Parliamentary Committee inquiry into wage theft in Queensland found that wage theft is widespread, affecting around 437,000 (approximately one in five) Queensland workers each year and costing more than $1 billion every year in unpaid or underpaid wages.

In addition to the criminalisation of wage theft, Queensland workers are also able to recover their unpaid wages through a simple, quick and low-cost process.

Claims for recovery of wages may be made to the Industrial Magistrates Court through the Queensland Industrial Relations Commission Registry.  You can make a claim for wages or entitlements owed to you within 6 years of when you were underpaid.  For further information about the wages recovery process visit the website or call the Registry on 1300 592 987.

For more information view the frequently asked questions (PDF, 170 KB) and fact sheet (PDF, 974 KB) on how to recover your wages.

What is wage theft?

Wage theft can take various forms such as the deliberate underpayment of wages, having entitlements such as leave and penalty rates deliberately withheld, and an employer deliberately not making required superannuation contributions on an employee’s behalf.

What are my rights?

As a worker in Queensland your rights and entitlements are protected by State and Commonwealth laws. Under these laws your minimum entitlements including the following are protected:

Employers are required to give every new employee a copy of the Fair Work Information Statement (the Statement) with information about conditions of employment when they start their new job.

Minimum rates of pay and deductions from wages

Minimum pay rates are set in an award, enterprise agreement or other registered agreement. If none of these apply, employees must be paid at least the national minimum wage, set each year by the Fair Work Commission.

Visit the Fair Work Ombudsman website or contact them on 13 13 94 for information on minimum pay rates, penalties and allowances under awards. Check out the FWO pay calculator to find your award if you’re not sure.

Any minimum hourly rate referred to in a modern award, enterprise agreement or under the national minimum wage is a ‘gross’ (before tax) hourly rate, and PAYG tax may be deducted.

Employers are usually prohibited from deducting money from an employee’s pay without their consent or from requesting an employee to pay ‘cashback’ amounts out of their wages back to the employer. Read more information on deducting pay and overpayments.

National Employment Standards (NES)

The NES are legal minimum entitlements which apply to all private sector employees in Australia, this includes paid annual leave (unpaid for casual workers), sick leave and public holidays. An award, employment contract or enterprise agreement cannot provide for conditions that are less than the national minimum wage or the NES. If you are a casual employee you are not eligible for paid leave, but will instead be paid an additional 25% of your basic hourly rate. If you are employed under an enterprise agreement, the agreement may provide for a different ‘casual loading’ figure.

Superannuation

Employers must pay superannuation contributions for eligible employees into a complying superannuation fund at least every three months. This is called the super guarantee and is currently 9.5 per cent of an employee’s ordinary time earnings.

The Australian Taxation Office (ATO) enforces compliance with superannuation obligations. If your employer is not paying superannuation contributions on your behalf at least quarterly and if you are eligible for superannuation contributions, you can make a complaint through the ATO’s website, or contact them on 13 10 20.

Unions

Unions provide support and advice to employees to help them understand and protect their rights and obligations in the workplace. Your union can provide advice about your entitlements and may be able to help you recover your wages. Visit australian.unions.org.au or call Australian Union on 1300 486 466. The Fair Work Ombudsman (FWO) can also provide guidance on the relevant union to contact for your industry. Information about Queensland-registered unions for workers in the Queensland industrial relations system (generally local government workers and Queensland Government employees) can be found on the Queensland Industrial Relations Commission website.

What can I do?

If you believe you have been underpaid you should raise the matter with your employer, seek assistance from your union or make a complaint to the Fair Work Ombudsman at fairwork.gov.au or call 13 13 94 for wages and other entitlements. For superannuation contact the ATO at ato.gov.au or 13 10 20.

The FWO can provide advice on minimum hourly rates and how to raise a possible underpayment of wages with your employer. They may explore mediation with your employer or in more serious cases they can take employers to court to recover wages and seek penalties.

If you are an employer and have identified an underpayment, you can find information about how to fix the underpayment at www.fairwork.gov.au. Employer associations may also be able to assist.

How can I recover my wages?

If the matter is not resolved through informal measures or after making a complaint to the Fair Work Ombudsman or the ATO, you may wish to seek advice about taking wage recovery action against your employer in court.

You can pursue the recovery of wages owing to you through the Queensland Industrial Magistrates Court via a simple, low-cost process. An application for recovery of unpaid wages must be made within 6 years of the date of the underpayment.

Workers are able to recover wages or entitlements such as penalty rates, superannuation or unlawful or unreasonable deductions from wages in Queensland’s industrial tribunals.

A further simplified process applies to small claims up to $20,000 under the Fair Work Act 2009 and $50,000 for the state system workers. The small claims process includes the following features:

  • the court is not bound by any rules of evidence and procedure
  • proceedings will be conducted in an informal manner without regard to legal forms and technicalities
  • parties will be self-represented, unless the court gives leave.

Before a wage recovery claim reaches the court, you will have an opportunity to engage in a conciliation process where the parties are assisted by an experienced industrial commissioner. Conciliation is an informal process intended to help the parties reach agreement or reduce matters in dispute to achieve a timely, cost-effective, proportionate and agreed resolution where possible.

To begin a claim you will need to complete and file the appropriate form, and lodge it with the Industrial Registry. This form can be lodged online by you or your union. Your claim will then be referred to an experienced Industrial Commissioner of the Queensland Industrial Relations Commission for conciliation.

If the matter is not resolved in conciliation, your claim will progress to a court hearing in the Queensland Industrial Magistrates Court. You and your employer will each have an opportunity to present evidence in the form of documents or witnesses.

Claims for recovery of wages may be made to the Industrial Magistrates Court through the Queensland Industrial Relations Commission (QIRC) Industrial Registry. You can make a claim for wages or entitlements owed to you within 6 years of the underpayment. For further information about the wages recovery process visit the QIRC website or call 1300 592 987.

When is wage theft a crime?

The Queensland Criminal Code at section 391 (‘Definition of stealing’) includes deliberate, intentional behaviour leading to under or non-payment of entitlements as a criminal offence. This could include where deliberate wage theft occurs through:

  • unpaid hours or underpaid 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 Australian Business Numbers (ABN)
  • authorised deductions that have not been applied as agreed.

How do I make a criminal complaint?

Employers found to be deliberately stealing from their workers can be prosecuted with a crime and sentenced to up to 10 years in jail. Underpayments brought on by an honest mistake or delay cannot attract criminal penalties. To successfully charge an employer with stealing, the employer must be shown to have intentionally withheld an employee’s entitlements with an intention to permanently deprive the worker of their property.

If you believe that your employer’s conduct could be a crime, you may wish to make a criminal complaint against your employer. To do this, please review the relevant Queensland Police Service (QPS) information about wage theft, and if appropriate, complete the wage theft report form available on the QPS page. This form is also available in person at a police station.

Before making a complaint, please be aware that police are unable to assist with wage recovery matters in the courts. Making a wage theft complaint to police may not result in the recovery of your unpaid wages or entitlements, even if your employer is convicted of stealing.

In addition, please be aware that you may be required to provide evidence during the investigation and prosecution processes of a criminal complaint, including potentially appearing in court as a witness.

Assistance and further information:

Workers and employers can seek advice or assistance from their union, industrial association, lawyer or other organisations including:

For international students, your educational institution may also be able to assist.

Government agencies:

Fair Work Ombudsman
Helps employees understand their rights and responsibilities under Australian workplace laws and investigates and ensures compliance with the Fair Work Act 2009.
Phone: 13 13 94

Australian Taxation Office
The ATO can help employees and employers understand their rights and responsibilities in relation to PAYG tax and superannuation contributions required under the super guarantee. The ATO also has taskforces dealing with tax avoidance and illegal 'phoenixing' activity.
Phone: 13 28 61 for individuals, 13 28 66 for business

Workplace Health and Safety Queensland
Educates workers and employers about their work health and safety obligations and enforces compliance with the Work Health and Safety Act 2011.
Phone: 1300 362 128

Queensland Human Rights Commission
The Queensland Human Rights Commission provides services to resolve complaints about discrimination, sexual harassment, vilification, victimisation as well as other contraventions of the Anti-Discrimination Act 1991 and the Public Interest Disclosure Act 2010. The QHRC also delivers training and promotes public discussion on human rights.
Phone: 1300 130 670

Commonwealth Department of Home Affairs
Provides information about visas.