Wage theft offences involve dishonest conduct by employers. Dishonesty means anything that a reasonable person would consider dishonest in the particular circumstances. You may be a victim of the crime of wage theft if your employer has:
- deliberately underpaid you;
- dishonestly withheld wages, superannuation or other employee entitlements;
- falsified employee entitlement records to gain a financial advantage; or
- not kept employee entitlement records to gain a financial advantage.
These crimes are punishable by a fine of more than $200,000 or up to 10 years’ jail for individuals, and a fine of more than $1,000,000 for companies.
Honest mistakes or actions taken with due care and diligence are not considered wage theft. However, any failure to comply with a notice issued by the Fair Work Ombudsman to pay an employee their entitlements will be evidence against any purported honest mistake or due diligence.
What can I do if I’ve been underpaid?
- Write (by text or email) to your employer to see if they can resolve the issue as there may have been an error or oversight.
- Send a Letter of Demand to your employer demanding payment within a certain time (e.g. 14 days) stating that if payment is not made, you will file a Fair Work Ombudsman (FWO) request for assistance without further notice or delay.
- Lodge a request for assistance with the FWO by registering an account on the FWO website and going through the relevant steps.
- If you think your employer deliberately underpaid you or dishonestly withheld wages or entitlements, you can make a report to the Wage Inspectorate. Your case may be evaluated with increased efficiency if you can provide as much evidence as possible. This includes providing your employment contract, pay slips, PAYG summaries and copies of timesheets or other correspondence used to prove your hours.
- Issue legal proceedings in the Federal Circuit and Family Court of Australia (FCFCA) (seek legal advice!).
- If your claim is less than $20,000, you can use the small claims procedure in the FCFCA, which is faster and less formal. Lawyers who wish to appear using this procedure need to seek leave of the Court. You have 6 years to file a claim in an eligible court from the date of the first underpayment.
- If you are dismissed for making an inquiry or complaining to your employer or the Wage Inspectorate about not being paid correctly, you only have 21 days to file a claim at the Fair Work Commission if you wish to pursue an unfair dismissal application or a General Protections involving dismissal application.
- Seek further assistance from JobWatch, your union or a lawyer.
For more information about wage theft, your rights and obligations and employer obligations, download the Fact Sheet.
For further support
Call our Telephone Information Service on Melbourne Metro (03) 9662 1933 or Regional Victoria, Queensland and Tasmania on 1800 331 617.