The current workplace relations landscape in Australia is largely characterised by decentralised enterprise level arrangements. The national workplace relations system (the Fair Work system) was introduced by the Fair Work Act 2009 (Fair Work Act) and commenced on 1 July 2009. It replaced the highly controversial Workplace Relations Amendment (Work Choices) Act 2005 and retained the general structure of a unitary national system.
Broadly, the Fair Work system establishes a safety net comprising the national minimum wage, workplace protections, and nationally applicable awards for specific industries and occupations, as well as establishing the agencies responsible for regulation of the system. The national framework also includes a civil penalty regime designed to ensure compliance.
The fair work system assumes that established checks and balances will deter employer non-compliance in the first instance and provide avenues for redress for workers where non-compliance does occur. However, there is a growing body of evidence showing significant, sustained, increasing levels of employer non-compliance with minimum National Employment Standards (NES) and other aspects of the Fair Work system.
In 2009 all Australian states and territories (except Western Australia), referred a substantial portion of their employment law powers to the Commonwealth. As such, the Fair Work system covers the majority of workplaces in Australia, with an estimated 87 percent of employees across the country covered by the national system.
Regulatory bodies and organisations
The two key regulatory bodies with responsibility for the administration of the Fair Work system—the Office of the Fair Work Ombudsman (FWO) and the Fair Work Commission (FWC) were established under the Fair Work Act in 2009 and 2014 respectively. Other organisations that make up the Fair Work system include:
the Registered Organisations Commission (ROC);
the Australian Building and Construction Commission (ABCC);
the Federal Court of Australia (FCA); and
the Fair Work Division of the Federal Circuit and Family Court of Australia (FCFCA).
Office of the Fair Work Ombudsman
The FWO is an independent statutory office with primary responsibility for promoting and monitoring compliance with the Fair Work Act and associated instruments. Its stated purpose is to 'promote harmonious, productive, cooperative and compliant workplace relations in Australia and compliance with the Act and fair work instruments'.
To achieve this purpose, the FWO's functions, as set out under section 682 of the Fair Work Act broadly include:
providing education, assistance and advice to employees, employers, fly-in fly-out workers and their employing organisations;
promoting and monitoring compliance with workplace laws;
investigating any breaches of the Fair Work Act;
taking appropriate enforcement action;
referring matters to relevant authorities; and
performing its statutory functions efficiently, effectively, economically, and ethically.
A number of submissions received considered the resourcing of the FWO and recommended that funding be increased to enable it to effectively perform its functions. In the period 2009–10 to 2015–16, government resourcing for the FWO decreased by $36.6 million (approximately 25 percent), dropping to the lowest level of funding since its inception at less than $108 million.
In 2016–17 the FWO's budget was combined with that of the ROC. Since the lowest point in 2015–16, the FWO and ROC's combined budget has increased by just under 11 percent to approximately $119.6 million in 2018–19, as illustrated in Figure 3.1.
Figure 3.1: FWO and ROC—revenue from government 2009–10 to 2021–22
Graph developed from figures provided by Dr Stephen Clibborn, Submission 89, p. 5.
At a public hearing for the inquiry, Associate Professor Anna Boucher pointed to the United Nations' International Labour Organization's (ILO) recommendation for one inspector for every 10,000 workers. Associate Professor Boucher observed that in 2020 the FWO were 'doing a very good job' notwithstanding low inspector levels of 16 inspectors per one million workers, and internationally lower levels of inspections'.
A broad range of stakeholders informed the committee that funding of the FWO is inadequate and additional resourcing is required. Highlighting this point in his verbal evidence to the committee, Mr Mathew Kunkel, Director of the Migrants Workers Centre stated:
Sorry to our colleagues of the FWO, who are working hard, but they don't have enough money and they don't have enough resources, and the way they're set up is not to be that cop in the first place …
… there should be some other additional resources, because there's such a widespread issue with wage theft in this community.
A minority of other witnesses advised that sufficient additional funding could never be provided, and that, rather, structural changes are required. On this point, Mr Liam O'Brien, Assistant Secretary of the Australian Council of Trade Unions (ACTU) advised the committee:
We've seen increased funding to the Fair Work Ombudsman, including increased civil penalties potentially, but we are still seeing a rise in noncompliance.
The Fair Work Ombudsman cannot be in every workplace. They cannot be in every workplace to support workers to firstly identify whether they've been paid incorrectly and then to take action to remedy it.
This evidence was supported by data provided by Mr Sunil Kemppi from the ACTU:
… we detailed … the amount of money recovered, taken from their annual reports, by the Fair Work Ombudsman. If you look at those figures—about $30-odd million per year—it's quite a small figure compared to the estimated billions of dollars in wage theft that is committed each year. That gives an example of the scale of the inspectorate's ability to pursue wage theft versus the actual problem in itself. The 4½ thousand-odd permit holders would certainly be able to have a much greater effect if given the power to do so.
The FWO's enforcement and compliance activities and their impact are discussed later in this chapter.
Fair Work Commission
The FWC is Australia's national workplace relations tribunal. Its functions and powers are stipulated in section 576 of the Fair Work Act and include:
setting the national minimum wage and wages in modern awards;
making, reviewing and varying modern awards;
facilitating the bargaining and making of enterprise agreements;
dealing with general protections, unlawful termination of employment, anti-bullying, and unfair dismissal claims;
issuing orders to cease or suspend industrial action;
determining applications for right of entry permits;
resolving collective and individual workplace disputes through alternative dispute resolution procedures; and
undertaking other functions conferred under the Fair Work Act.
Registered Organisations Commission
The ROC was established in 2017 by the Fair Work (Registered Organisations) Act 2009 (RO Act) to increase the financial transparency, governance and accountability of registered organisations such as employer or occupational associations, unions and enterprise associations. Working closely with the FWC, its functions and powers include:
promoting the efficient management of registered organisations;
providing education, help and advice to organisations and members;
monitoring, conducting inquiries and investigating organisations; and
Australian Building and Construction Commission
The ABCC was established by the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) on 2 December 2016. Complementing the role of the FWO, the ABCC has the primary responsibility of monitoring compliance with and enforcing Commonwealth workplace relations laws that apply to the building and construction industry, including those relating to wages and entitlements and coercion. Its jurisdiction is defined under the BCIIP Act as a 'building industry participant' who is involved in 'building work'.
Federal Court of Australia
The FCA has jurisdiction over all civil and criminal matters arising under the Fair Work jurisdiction.
Where applications relating to an unfair dismissal, termination of employment, or contravention of protected rights at work (or general protections) cannot be conciliated at the FWC, an applicant may then commence proceedings in the FCA, or alternatively, in the Fair Work Division of the FCFC.
Federal Circuit and Family Court of Australia
Since 1 July 2009, all matters that fall under the jurisdiction of the Fair Work Act can be heard in the Fair Work Division of the FCFCA.
The FCFCA was established to provide a simple and accessible alternative to litigation in the FCA and aims to operate informally and to use streamlined procedures to finalise matters in federal jurisdictions promptly and efficiently.
The effectiveness of underpayment litigation and the small claims process are discussed later in this chapter.
Australia's system of wages and entitlements
Importantly, the Fair Work system undertakes the role of setting out minimum wages and conditions for employees in Australia as follows:
national minimum wage—currently $20.33 per hour, with additional loadings applicable for casual work, and special rates of pay for junior employees, employees with a disability, apprentices and others in training;
National Employment Standards (NES)—11 minimum standards relating to hours of work and leave entitlements set out in the Fair Work Act. Casual employees are only eligible for some entitlements. Of relevance to this inquiry are the provisions relating to:
maximum weekly hours of work—38 hours per week, plus reasonable additional hours;
notice of termination and redundancy pay—up to five weeks' notice of termination and up to 16 weeks' redundancy pay, both based on length of service;
public holidays—a paid day off on a public holiday, except where reasonably requested to work; and
other entitlements—relating to leave, and the provision of the Fair Work Information Statement to all new employees;
general workplace protections—workplace rights, industrial activities, and unlawful discrimination so that workers are protected from threats or actual adverse actions in relation to their employment, coercion, misrepresentation of workplace rights, and undue influence or pressure to change conditions of employment;
modern awards—legally enforceable arrangements that set minimum pay rates, entitlements, and conditions on top of the minimum wage and NES applicable to classifications of workers in particular industries, or in some cases, particular occupations. There are currently 123 modern awards of general application;
registered agreements—including enterprise agreements and registered agreements. Where such agreements exist awards do not apply, however agreements are subject to the 'better off overall test' (BOOT) requiring that no employee be worse off under the agreement than they would be under the NES or the relevant award;
employment contracts—individual terms and conditions of employment, including pay and entitlements set out in a written or verbal employment contract between an employer and employee. These terms and conditions are also subject to the BOOT with regard to the NES, or any modern award, enterprise agreement or other registered agreement that may apply.
Together these aspects work together or provide a 'safety net' of entitlements for employees covered by the Fair Work system, as illustrated by Figure 3.2.
Figure 3.2: 'Safety net' of employee entitlements under the Fair Work system
Senate Economics Legislation Committee
Legislative amendments have been passed in recent years to:
increase certain penalties;
change entitlements and obligations for casual employees;
change liabilities for franchisees or subsidiaries in relation to employees;
create new entitlements in relation to family and domestic violence, parental and compassionate leave;
improve protections against sexual harassment;
ensure the regular review of modern awards; and
enact temporary changes relating to the pandemic.
Performance of the 'safety net'
Is it a highly complex system?
The committee heard a range of evidence about the complexity of Australia's award system, with some blaming excessive complexity and frequency of changes for ignorant or inadvertent employee underpayments.
For example, the Institute of Certified Bookkeepers (ICB) and the National Retail Association told the committee that many employers want to 'do the right thing' but the complexity of the system makes this difficult. They outlined the considerations employers need to make when engaging an employee, with the ICB advising that 'it is a prohibitively costly process to endeavour to ensure that all possible implications of an employment arrangement have been considered and applied'.
The Institute argued that tools provided by the FWO are in themselves complex, and that there is uncertainty and ambiguity in how awards and requirements are imposed, even when advice is sought directly from the FWO or court precedents.
Ai Group and the Cheesecake Shop submitted that this complexity increases compliance costs and contributes to inadvertent underpayment—particularly for small businesses. The Cheesecake Shop told the committee:
Not even large businesses can get it right. What hope do Mum and Dad operators have? We have found that compliance is best achieved from within, by ensuring all stakeholders are clear on their obligations. Employees are the best and cheapest form of compliance audit – provided they know what they are entitled to. Simplify the minimum wage and award system to improve compliance and lower compliance costs.
As discussed in Chapter 1, some employers have also blamed errors on their payroll system.
In line with Ai Group, the Chartered Accountants Australia and New Zealand (CAANZ) advised that the introduction of Single Touch Payroll has 'helped increase employers' focus on payroll', as well as providing more data to assist the Australian Taxation Office (ATO) and FWO identify non-compliance.
Other evidence maintained that the Fair Work system is not overly complex, illustrated by the fact that many employers pay their employees properly. Nevertheless, some witnesses stated that meeting staff payment obligations is a requirement and responsibility for business owners. Witnesses also pointed to the public expectation that large corporations in particular, meet their obligations, in the same way they are required to meet other obligations such as those relating to taxation.
In 2020, the FWO expressed its impatience with non-compliant employers:
… the results [of its audits] were a wakeup call to employers that they need to prioritise workplace law compliance.
"Nearly three quarters of employers that breached the law said they weren’t aware of the rules, which is not an excuse. Businesses are failing the basic requirements of being a responsible employer if they are not carrying out adequate due diligence before hiring".
Unions NSW agreed with this point, noting that employers competently meet other, far more complex business obligations including commercial leases, sale and purchase, taxation and tax minimisation, safety, and other sector-specific requirements.
Underlining the same view, the UNSW Law Society observed:
… in comparison to the complexity of tax laws and lease agreements managed by these businesses, the streamlined Modern Award system has been considered by legal and business professionals as unlikely to cause genuine confusion.
However, despite the more recent simplification and modernisation of awards, a 2015 Productivity Commission (PC) review found elements of complexity remain in the industrial relations system:
People are confused by the system, and some parties that should have a bigger voice in it — consumers, the unemployed and underemployed — have marginal influence. There are unquestionable inefficiencies, remnant unfairness, some mischief and absurd anachronisms … The bulk of stakeholders and this inquiry’s analysis suggests that … the system needs renovation, not a 'knockdown and rebuild'.
The 2021 Global Payroll Complexity Index found that Australia's payroll complexity is not terribly high, rating it 21 out of 40 countries, 'based on mandatory legislative, reporting, process and security regulations'. Moreover, research has shown that, in countries with simpler wage systems, migrants also bring high rates of claims for underpayment.
Other witnesses told the committee that underpayments do not result from system complexity:
It's often trotted out that the award system is too complex for business owners and that they are often misclassifying employees, because of the complexity of awards. This is a nonsense argument. Effectively, most small businesses do not have multiple awards that they need to deal with. Large businesses may, but large businesses can afford to get it right.
Mr Mathew Kunkel, Director of the Migrants Workers Centre agreed, saying:
Complexity is not the issue; it's the greed of employers, and it's the race to the bottom because everyone else is doing it. If we want to lift the standard for all workers in this country, we have to end this wage theft pandemic.
The ACTU also agreed, stating 'the system today has never been simpler for employers to comply with', with ready access to awards online, additional tools and advice also available.
In other instances, underpayment of employees has been blamed on poor employer processes and inadequate recordkeeping.
In support of claims of system complexity causing underpayments, the Australian Payroll Association revealed in 2020 that 27 of 39 audits on clients' pay processes in the previous 18 months had uncovered overpayments, with some errors estimated to cost employers millions of dollars.
This was supported by evidence from corporate entities such as the Australian Retailers Association (ARA), Qantas and Wesfarmers, and the former FWO, Ms Natalie James, who advised that 'overpayments often arose in the firm's audits but that clients and the FWO were primarily concerned with underpayments'. Most employers do not seek the return of overpayments, given the costs associated with recovery.
However, the National Foundation for Australian Women (NFAW) stated that it 'is deeply sceptical of the "honest mistake" response made by many employers and employer associations to findings of systemic wage theft'. This echoed the findings of a previous Senate committee inquiry into corporate avoidance of the Fair Work Act. That committee observed that the frequency and quantum of overpayments are not as prevalent as underpayments, as might be expected from a so-called complex system:
The committee is not persuaded by arguments suggesting that underpayment is usually the result of oversight, or that the law is too complex for employers to understand. While genuine errors do occur, these tend not to consistently favour the pecuniary interests of one side only—employees may be mistakenly underpaid or overpaid. As the committee did not receive any evidence suggesting that thousands of vulnerable workers have been enjoying millions of dollars' worth of accidental overpayment it is not convinced that the levels of underpayment are due to 'administrative errors'.
Fair Entitlements Guarantee
Established under the Fair Entitlements Guarantee Act 2012 (FEG Act), the Fair Entitlements Guarantee (FEG) is the evolution of the General Employee Entitlements and Redundancy Scheme (GEERS) set up in 2000 by the Howard Government. The scheme is a legislative safety net compensation scheme of last resort that ensures eligible employees receive payment for certain basic employment entitlements, where their employer is unable to pay because they have gone into liquidation or become bankrupt. Its coverage includes:
wages—capped at 13 weeks;
annual and long service leave;
payment in lieu of notice—capped at five weeks; and
redundancy pay—capped at four weeks per full year of service.
After employment entitlements have been paid to an employee under the FEG scheme, the FEG Act allows for the Commonwealth to take the place of the employee as the subrogated creditor, with priority of claims in the liquidation, over other unsecured creditors.
Current eligibility requirements to receive financial assistance under the FEG scheme require that employees are either an Australian citizen or are/were the holder of a permanent visa or special category visa that allows them to stay and work in Australia (at the time their employment ceased).
Notably under the FEG, unpaid Superannuation Guarantee (SG) contributions cannot be claimed. Individuals must pursue unpaid SG contributions through the ATO.
Protections for independent contractors
Employment arrangements of independent contractors and sham contracting were considered extensively by the Senate Select Committee on Job Security.
Box 3.1: Recent court cases overturn precedents
Recent cases about the nature of employment relationships have overturned the long-held precedent for courts to look beyond a worker's contract to the reality of the work relationship (provided it is not a sham arrangement). In this case the court relied almost solely on the terms of the agreement.
The High Court of Australia held that two truck drivers who worked 9-hour days for a company for almost 40 years under a partnership arrangement were not employees entitled to minimum pay and conditions, including superannuation and leave.
Chief Justice Kiefel and Justices Keane and Edelman stated 'the only kinds of rights with which courts of justice are concerned are legal rights. The employment relationship with which the common law is concerned must be a legal relationship. It is not a social or psychological concept like friendship'.
Businesses welcomed this decision, citing greater certainty for employers, with the decision giving support to Uber and Deliveroo's claims that their drivers are not employees, however it is expected to encourage the engagement of more contractors in insecure employment arrangements in the longer term, and, with clever contract drafting, ensure that businesses avoid meeting minimum pay and conditions.
In other similar matters, the High Court found in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd  and Workpac v Rossato  that a formal agreement primarily determines the nature of an employment relationship, with all three cases having profound implications for employment law.
The FWO is considering its advice further in light of the findings.
The Independent Contractors Act 2006 provides some workplace protections for contractors, however competition laws impact their ability to collectively bargain and establish better conditions.
The Fair Work Act also protects individuals in circumstances of sham contracting. Its provisions make it unlawful for employers to:
misrepresent an employment relationship as a contract for services;
dismiss an employee in order to re-engage them as an independent contractor to perform the same, or substantially the same, work; and
knowingly making a false statement in order to persuade an individual to enter into a contract for services under which that individual will perform particular work as an independent contractor and where that work is, or has at any time, been performed by an employee.
How are independent contractors impacted by wage theft?
The committee heard that employers use independent contracting arrangements and sham contracting to underpay workers, with Dr Kristin van Barneveld from the NFAW telling the committee:
Workers are being pushed into those arrangements so as to avoid things like paying workers comp premiums, potentially being able to pay them less than the award rate of pay, avoiding having to pay tax on their behalf and those sorts of things. Vulnerable workers can be easily pushed into these sorts of scenarios, as you would well know.
WEstjustice submitted that 'the exploitation of members of newly arrived and refugee communities through the use of sham contracting arrangements is rife'. The Australian Services Union (ASU) agreed, elaborating that insecure work and the unequal power balance means that these workers will 'often "accept" a wage that is under the legal minimum for their industry' and miss out on paid leave, and superannuation contributions.
The committee also heard that workers may not be aware of the significant differences between an employee and an independent contractor. Moreover, understanding and applying the multi-factor test to determine the type of employment relationship can be difficult, particularly for vulnerable workers. Workers who are found to be independent contractors have 'extremely limited' avenues for assistance, as they fall outside the remit of the FWO and many community legal centres.
Ms Gabrielle Gooding from the National Tertiary Education Union (NTEU) also revealed that workers are being pushed even further, being forced to form companies so that employers can 'dodge the independent contractors' obligations'. She told the committee:
We say that sham contracting is the most egregious form of wage theft. Not only does it prevent the individual being paid the correct award amount, which almost uniformly happens in the higher education providers, but also it means that they don't [receive] any superannuation; therefore, they don't get any temporary or permanent disability payment if they have a serious illness or injury, and they don't have any workers compensation. Their only choice is to sue their employer if they're negligent.
Wages compliance and enforcement regime
Encouraging compliance and an enforcement regime are vital to ensuring that workers are paid appropriately, with a review of international jurisdictions indicating that:
If the compliance rate [with minimum wages] is too low then the ability of minimum wages to reduce inequality or to have spillover effects in other sectors is compromised. The fact remains that 'simply legislating a minimum wage will not make it happen'.
Wage underpayment is a civil offence under the Fair Work Act, which the FWO and ABCC are responsible for pursuing, and they do so on a strategic, risk-based basis.
Regulators attempt to address the issue of underpayments through tailored education and assisted dispute resolution, with the intent of resolving workplace issues and returning monies owed to employees quickly. This approach also enables the FWO to focus its resources on matters deemed more serious, and warranting general and specific deterrence.
However, the committee heard that mediation, as an avenue for resolving an underpayment claim, is voluntary and does not always result in positive outcomes for claimants:
When a worker reports breaches such as wage theft to the FWO, which is responsible for promoting compliance with workplace laws, its response in most cases is merely inviting the employer and the worker to participate in mediation. The mediation is a voluntary process, and some employers nonchalantly refuse to participate in it. Even when the mediation takes place, it could fail to produce any conclusion, in which case the FWO advises the worker to take the complaint to court. Most workers find court procedures (including small claims tribunals) too complex, costly, and time consuming and reluctantly give up pursuing justice.
More targeted campaigns are undertaken by the FWO where industry intelligence indicates non-compliance in a particular region or a sector. The FWO commonly reserves the use of its statutory enforcement tools for cases involving serious non-compliance, and matters considered to be in the public interest. This includes instances where there has been a blatant disregard of the law, or exploitation of vulnerable workers, or where systemic issues of non-compliance exist. These enforcement processes include:
enforceable undertakings; and
The enforcement work of the FWO is broadly discussed in Chapter 1, including its recovery of underpayments through a variety of avenues. In June 2019, Ms Parker noted that enforceable undertakings and contrition payments would thereafter be the default position of the FWO in cases of larger, corporate underpayments that are self-reported to the regulator:
Our default position now is that an enforceable undertaking with the FWO will be required, as a minimum, and those enforceable undertakings will require the employer to meet the cost of getting their underpayments verified by experts contracted to the FWO, so that the burden of calculating what is owed is not put onto the taxpayer.
Employers that self-report should also expect to make a contrition payment reflecting the seriousness of their contravening conduct, because it is simply not acceptable for businesses to throw their hands up when they've been underpaying workers and expect to move on without consequences once the back pay is in the workers' accounts.
Where the FWO decides not to pursue a matter, or where a workplace issue cannot otherwise be resolved voluntarily, workers have the option of initiating small claims proceedings in a state or territory court or the FCFCA. The small claims process is available where:
the claim is for up to $20,000;
the entitlement is covered under Australian workplace laws; and
the statutory time limit has not expired (usually six years from when the entitlement was due to be paid).
In its March 2019 report, the Migrant Workers' Taskforce discussed the apparent under-utilisation of the small claims process, commenting that it 'should be straightforward enough to encourage underpaid employees to bring their own claims, without lawyers or other legal assistance'. The Taskforce recommended that the Government commission a review of the small claims process set out under the Fair Work Act to examine how it can become a more effective avenue for wage redress.
ABCC underpayment recoveries
As previously outlined, the ABCC has a complementary role to the FWO with regard to the building and construction industry. The committee received evidence that the ABCC is not focussed on its core work:
… the construction sector as [sic] the biggest sector encountering underpayment. It is also a sector which is in some segments highly unionised, and yet we still have this underpayment problem. As many of you are familiar with, the ABCC in theory has responsibility for overseeing wage payments in that sector, but its priorities are on union monitoring. Wage underpayment is very much down their list of priorities.
… In actual fact, they have brought proceedings against unions for taking unlawful industrial action when that industrial action was being taken in relation to underpayment.
Echoing evidence received by the Senate inquiry into job security, the committee heard that the ABCC is aware of 'significant wage theft' in the building and construction industry but that it targets its efforts at union members and union 'wrongdoing' rather than employer non-compliance. The committee noted that the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) recommends the ABCC be abolished.
Dr Tess Hardy told the committee that despite the construction sector being heavily unionised, wage recoveries by the ABCC are small when compared with the extent of industry non-compliance:
A 2019–20 ABCC audit revealed that close to 80 per cent of labour hire companies are not compliant with workplace laws—64 per cent in relation to remuneration—with nearly $565,000 recovered for employees over the course of the audit. This is a surprisingly small figure given the extent of non-compliance. In fact, the ABCC has recovered just $4 million in unpaid wages since 2016. The ABCC told the committee that its focus is on 'industry sectors to check the general level of compliance', rather than focussing on individual complaints.
Effectiveness of the compliance and enforcement regime
The committee received evidence about the effectiveness of the regime in preventing and addressing underpayment, including ease of access to entitlements and justice for underpaid employees.
A review of the evidence suggests that the current regime is not functioning as well as it could, as demonstrated by the high and increasing levels of wage theft—which systemic in some sectors. Ms Jo Briskey from the United Workers Union (UWU) observed:
I would say that the current arrangements and the regulations that exist have clearly demonstrated that they are not effective in addressing the issues around wage theft, because it continues to be an issue. We have laws and we have regulations; yet we know that companies are doing it as part of their work. The main point that I would make is that what we have currently is not effective needs addressing.
Dr Hardy highlighted the value of enforcement both to individual workers and the wider community:
… in my view, the need for effective enforcement of minimum wage, superannuation and other employment related entitlements is stronger than ever.
Enforcement is not only critical for maintaining and sustaining the safety net and upholding the rule of law; it's also essential for protecting the health and safety of workers and the community more generally.
Somewhat in contrast, Associate Professor Anna Boucher advised that the regulator is effective, noting that the FWO could do more inspections but that it brings more litigation cases and has a higher rate when compared with regulators in some overseas jurisdictions.
Barriers for wage theft victims
A range of witnesses advised the committee that there are significant barriers to recovering unpaid wages for victims, particularly those engaged in a 'David and Goliath' contest with large, well-resourced corporate entities. Barriers to redress including:
lack of awareness or education—in relation to their entitlements. Where workers are aware of their entitlements, they may not know how to progress a claim. Contractors, young people and migrants are especially at risk;
lack of confidence—may impede workers from taking action because they believe it is too onerous, the amount of unpaid wages is insignificant, pessimism about the outcome, or because of their ability to navigate complex rules and procedures;
mistrust and fear of reprisals—of workers may mistrust regulators or unions, fear reprisals from their employers including loss of hours or jobs required for subsistence, 'blocklisting', or immigration consequences;
insufficient evidence—workers paid in cash or subject to record falsification may have insufficient evidence to take any action;
high costs—'prohibitive' costs including small claims fees, court filing fees, and lawyers may prevent workers seeking redress;
low small claims threshold—currently capped at $20 000, denying access to redress through this avenue for some claimants;
inability to recover costs—small claimants are unable to recover costs, with the added disadvantage that offending employers are not subject to penalties, and costs are unable to be recovered by a lead applicant and class members unless the proceeding was instituted vexatiously, without reasonable cause, or in another special circumstance—making it less feasible to commence a private action through class proceedings relating to underpayment;
inability to take action—temporary migrant workers may have insufficient time to initiate action because of time limits on their visa; or workers have employer to take action against it has gone into liquidation or bankruptcy; or individual workers are unable to take broader action because of the short-term nature of their appointment and inability to organise;
requirement for mutual consent—consent is required from both parties to enable arbitration actions with the FWC. Actions are restricted to interpretation and are exclusive of back payment or enforcement; and
restriction to current employees—disputes may only be heard by the FWC in relation to current, not ex-, employees, limiting claims and potentially perpetuating exploitative arrangements.
As previously discussed, vulnerable workers are deemed to be less likely to pursue underpayments because of the power imbalance with employers, and for fear of repercussions. Mr O'Brien recounted his experiences in observing this fear:
My experience as an official—and indeed it should be well understood to most people—is that workers are very anxious about raising issues about their employment. If we think about the fact that one in three workers is in some form of insecure work, so a casual worker, there's a direct relationship between raising your hand to outline a wage theft matter and whether you're going to get a shift next week.
Ms Dawson agreed with this point of view, telling the committee:
Certainly, the loss of bargaining power and the loss of union representation is probably the biggest factor in driving that power imbalance … even prior to the pandemic, individual workers on low rates of pay, particularly when they're not guaranteed shifts, think, 'If I speak up and ask for a pay rise or say that I think they're not paying me properly, I just won't be rostered on next week.' They do not have that power.
Ms Annie Wang told the committee that after she spoke up about unpaid wages, she received unjustified and never heard before warnings about her performance:
I left that place because I felt like I had no option but to walk away from a situation where I was being harassed, all because I had asked to be paid my entitlements.
The committee heard that migrant workers face particular barriers, particularly where temporary skilled visas are linked with employer sponsorship. This makes it very difficult for these workers to pursue underpayment claims. Furthermore, the committee heard that migrant workers have no mechanism to maintain their residency in Australia until claims are addressed. Mr Mathew Kunkel from the Migrant Workers Centre (MWC) provided further details:
Lots of workers come to us. We tell them that they've got a case, but ultimately they don't want to go ahead with it because if they raise their issues they get fired and if they get fired they have 60 days to either find a new employer or leave the country.
The committee heard that it is also difficult for workers to pursue underpayments because the system is ineffective, with one witness, who did not wish for his name to be made public, writing:
Again I went through all the technicalities with a fine tooth comb. This time I sought assistance & was not surprised that my suspicions of Wage Theft were confirmed... My next move was to once again confront management. However this time I was not there to argue. I was there however to extract the information I required to make a formal complaint to The Fair Work Ombudsman. Twice now I have attempted to have this matter exposed. On both occasions I have explained the situation & been sent back a reply which tells me that I must now take it up with management. Back to square One. Thank you for Nothing.
I no longer have the energy or am in a position to put my Family's income in jeopardy. I am currently in the process of joining a Union. My working hours are such that I have not been able to do so.
The committee also heard that redress processes are not affordable, accessible, or efficient for workers:
Some of the problems that I can see are that when you encounter an underpayment of wages that automatically means that you have suffered nonpayment or underpayment of your superannuation. Because of the way the system is currently structured, it's the case that you might have to go to the Fair Work Ombudsman to pursue your wage underpayment and then go to the ATO to pursue your unpaid super. I see that that is inefficient and is not the most effective way to recover that entitlement on behalf of the employee, particularly when the ATO is overwhelmed.
Accessorial liability and supply chains
Unions NSW advised that increased business competition has given rise to the use of multiple layers of sub-contracting, 'supply chain outsourcing' or 'fissured workplaces', for example through labour hire firms. The FWO likewise advised that it has seen complex sub-contracting arrangements used by companies in order to avoid employer obligations. This has been particularly apparent in sectors such as cleaning, construction, apparel, and road transport.
The FWO and Retail Supply Chain Alliance believe that 'ineffective supply chain governance', contributes to non-compliance by contractors. The Queensland Council of Unions and the CFMEU submitted that tight margins place businesses at the bottom, or direct employers under financial pressure, leading to the non-payment of employees. The Centre for Business and Social Innovations emphasised:
… at each stage in the contracting chain the obligations imposed by the lead firm (such as maximum amount of money to pay for the work and maximum amount of time to perform the work) are passed down the chain and each business in the chain takes its cut of profit. As Johnstone et al explain:
'these arrangements enable firms at or near the apex of the chain to avoid the legal proximity with workers that may attract various obligations and liabilities, but at the same time enable them to maintain effective commercial control over the work performed'.
The Fair Work Act allows liability for contraventions of workplace laws to be extended to a person (or company) deemed to be 'involved in' a contravention, with this accessorial liability extended to franchisors and holding companies since September 2017.
The UNSW Law Society Inc and WEstjustice suggested that current accessorial liability provisions do not go far enough, with the UNSW Law Society noting that experiences of the Quebec construction industry have shown that 'third party liability in subcontracting chains can prevent underpayment and wage theft'.
They contended that the current provisions apply in only certain circumstances, requiring a high threshold for liability and thereby limiting accessorial liability for lead contractors and other companies at the top of supply chains. WEstjustice wrote:
By requiring actual knowledge, section 550 serves to reward corporations who deliberately remain uninformed about the conduct of others in their supply chain/business model. The law should not reward those who turn a blind eye to exploitation – especially those who are directly benefitting from the exploitation and in a position to take reasonable steps to stop it.
Efficacy of current civil penalties
The committee received evidence that the current penalties are out of line with community expectations. Only civil penalties are available for wage theft, and these are ultimately determined by the courts in accordance with section 557 of the Fair Work Act. The legislation requires courts to 'group' contraventions such that only a single penalty is awarded. The FWO has noted that this feature of the civil penalty regime can lead to the public interest being unsatisfied when it comes to underpayment cases:
Public commentary suggests a misunderstanding of the penalty regime applicable to underpayments under the Fair Work Act, where it is the number of contraventions rather than the value of the underpayments that is most relevant to the penalty imposed.
The committee heard from a number of submitters that deterrence is a 'critical component of enforcement':
When the chances of being caught are minimal and the consequences are simply to repay the stolen wages, we shouldn't be surprised that so many employers engage in wage theft. There is minimal deterrence. This has been the result of deliberate policy decisions by the government.
Some witnesses warned that current penalties are insufficient to deter non-compliance, particularly for large corporations. The UNSW Law Society Inc submitted that 'current civil penalties appear inadequate in preventing large companies from continuously committing wage theft under the franchise and labour hire business models'.
However, Dr Hardy stated that research shows that the risk of detection and the swiftness of the time between contravention, and detection and penalty is more powerful in changing behaviour than larger and harsher penalties, particularly when coupled with administrative sanctions:
Proactive detection has been found to cast a longer shadow than an investigation triggered by complaints. It is better placed to address the systemic drivers of the noncompliance rather than just resolving the individual concerns of the complainant, even though this, in itself, is an important objective of any enforcement regime.
In contrast, other witnesses told the committee that higher rates of self-disclosure underline the effectiveness of current controls. The National Retail Association defended the current arrangements, saying 'no reform is required to deter wage non-compliance as a result of mistake or misapprehension', and that public disclosures indicate that existing penalties, particularly those relating to 'serious contravention' are sufficient.
The SG requires employers to pay a minimum percentage of employee's salary into their complying superannuation fund or retirement savings account. From 1 July 2014 to 30 June 2021, the amount of SG payable was equal to 9.5 per cent of an employee's ordinary time earnings. However, from 1 July 2021, the SG rate rose to 10 per cent, with the rate scheduled to progressively increase to 12 per cent by July 2025. It is administered by the Commissioner of Taxation, with the support of the ATO.
The SG is payable at least four times a year after an employee's salary and wages are paid. Where payments are not made, employers are liable to pay the SG charge to the ATO and lodge a SG charge statement. Some superannuation funds, awards and contracts require superannuation contributions to be paid more regularly, for example, on a monthly basis.
Monitoring and compliance
The ATO is responsible for monitoring and enforcing compliance with minimum SG obligations, with the FWO and employee responsible for seeking additional superannuation entitlements under an award or agreement.
The extent of SG non-compliance was considered in Chapter 1. The ATO reported that employers have a high levels of awareness in relation to SG contributions. It cited cash flow issues as the main reason provided for non-payment of employees. This features in 70 per cent of non-payments, poor recordkeeping in around 20 per cent of cases, with the remaining 10 per cent explained as misunderstanding, active delay or avoidance, and wilful non-compliance. Failure to comply with a direction to pay outstanding SG charge amounts within a specified period is a criminal offence.
Legislative change in 2019 enabled the Commissioner to issue directions to employers to pay unpaid SG, and disclose more information about SG non-compliance to affected employees, including where they may be unaware of non-payment or have not lodged a complaint.
Between 24 May 2018 and 7 September 2020, the ATO provided a SG amnesty for employers to disclose unpaid SG without Part 7 penalties applying.
The ATO has argued that since the completion of the amnesty there is now 'a legislative base … for the Commissioner to remit a penalty below 100 per cent when we commence an audit' with penalty reductions for voluntary disclosures. However, it advised that from September 2020 the penalty will be 100 per cent 'except in exceptional circumstances'.
With Single Touch Payroll, introduced across 2018 and 2019, the ATO now has greater visibility of SG liabilities and payments, data of which is used to inform investigations and enforcement actions. In 2019–20 use of Single Touch Payroll data resulted in an additional $28.1 million in SG payments.
However, the ATO's enforcement actions over the same period were less impressive. During 2019–20:
12,110 payment plans were established, valued at $461 million;
21 per cent (or 2,500) plans were cancelled, or defaulted after 120 days; and
73 per cent of employers who failed to pay full entitlements received no penalty, with most of the remainder required to pay less than a 51 per cent penalty.
At the public hearing on 18 September 2020, the committee heard that the ATO had considered using the direction-to-pay power on 40 occasions but ultimately failed to do so, stating 'on each of these occasions the employer has entered into liquidation or insolvency and/or has entered into a payment arrangement'.
The ATO also advised that it had issued 2,233 SG director penalty notices to directors of 1,572 companies for a value of $146 million, but that it had only collected $20.6 million of that amount—a mere 14 per cent recovery rate.
On 22 February 2022, Ms Rosenzweig told the committee that the ATO was stepping up its actions:
… we've been working with businesses through the impacts of the pandemic … we have not aggressively pursued debt collection and have been trying to support businesses to sustain them through the pandemic … we are starting to renew our activity in debt collection and re-engage with businesses who owe us money. As part of that, we are thinking about the full suite of tools that we have available and when it's appropriate to use them.
Pursuit of complaints
In October 2021, the ATO advised that for the 2020–21 year, the average elapsed time from an employee complaint to closure was eight months, with half of the liabilities owed paid within three months. The ATO also advised that additional resources and process changes recently put in place will help address the delays experienced in 2021–22.
As mentioned earlier, unpaid SG contributions cannot be claimed under the FEG when businesses go bust and individuals have to pursue unpaid contributions through the ATO.
Trustees or funds also struggle to recover unpaid superannuation, with only the ATO able to pursue SG breaches, and trustees excluded from recovering unpaid superannuation under an award or enterprise agreement. Trustees can only act to recover unpaid superannuation contributions when an enforceable agreement exists between a trustee and an employer.
How effective is SG payment compliance and enforcement?
While the 3.8 per cent SG gap discussed in Chapter 1 means that most employers are paying superannuation. However, $2.5 billion in missing payments is significant, especially considering the multiplier effect on superannuation at the time of retirement and the broader impacts on the tax and social services systems. The ACTU highlighted this issue, cautioning that underpayment is:
… also about the estimated billions of dollars in superannuation that is also not paid to workers. This is just as significant for workers because it not only deprives them of income today but deprives them of the retirement savings necessary to ensure a comfortable retirement.
Industry Super Australia (ISA) noted that the Australian Government has taken some positive steps to improve SG compliance, but the ISA and others believe that the ATO is not sufficiently enforcing existing penalties. The ISA suggested that around three-quarters of Part 7 penalties are remitted by the ATO, and the ATO does not publish its enforcement actions so the deterrence effects of enforcement activities is limited.
Witness 3—a victim of unpaid superannuation—highlighted the gravity and injustice of their experience of the current system:
These companies need to be accountable, and government needs to enforce these obligations and ensure strong penalties are applied to deter employers from stealing our entitlements. If I were to steal money from [my employer] ECEC Management Services, I would be in jail. It needs to work both ways.
The Queensland Government also submitted that the system is not working effectively, saying:
Currently, the ATO is responsible for unpaid super and the evidence to the [Queensland] wage theft inquiry confirmed it has not been an effective force in recovering these entitlements for workers, with this being attributed to factors such as a lack of resources and a failure to conduct proactive, random audits.
As with unpaid wages, unpaid superannuation is used by employers to fund other liabilities and obligations in lieu of sufficient cash flow. This is done at the expense of employees, with little or no recourse for recovery when companies become insolvent or bankrupt. Figures from the Australian Securities and Investments Commission (ASIC) show that in 2018–19 nearly 19 per cent of insolvencies involved unpaid wages, while a whopping 48 per cent of insolvencies involved unpaid SG contributions.
The Tax Commissioner, Mr Chris Jordan told the Senate Economics Legislation Committee during Senate estimates that:
… [Businesses] have to pay wages or people won't turn up. They have to pay their overdraft or whatever to the bank or the bank will foreclose. They have to pay suppliers because they'll supply only with cash on delivery. When businesses are not going as well, or the cashflow is not as good as they'd like, there are three things that tend to accumulate together—not repatriating the pay-as-you-go, not repatriating the GST [goods and services tax] they collected on sales and not paying the superannuation [emphasis added].
… It's pragmatic. It's just recognising the pragmatic nature of a business who makes choices to survive.
Ms Melinda Bolton, from the UWU demonstrated this point by explaining a case, which affected 10 of its members:
… the employer still didn't make any payments, despite the court orders. …
Then, earlier this month, we received confirmation that the employer has now been placed into liquidation. So at this point the prospects of our members receiving the superannuation that they're owed seem relatively poor. Our members are now reliant on the investigations being undertaken by the liquidators in relation to the assets that the company held to see if there is any possibility of the superannuation being paid from any assets that might be able to be liquidated.
Challenges facing victims
The committee heard about challenges facing victims of SG underpayment. The ATO observed that there are delays in reporting superannuation non-payment, with 'a high level of ex-employees reporting their previous employer to the ATO', because they are unaware they have been unpaid, they fear employment reprisals, or they are not interested in their superannuation until closer to retirement.
Evidence from numerous witnesses highlighted that employees do not always know that their SG payments are not being made, because contributions appear on their payslips but may only be made to their fund quarterly, or not at all. Despite measures to improve transparency, such as reporting through MyGov, many employees remain ignorant of underpayment:
When I found out that my employer wasn't paying my super, I felt angry and betrayed as we were unaware for some months that this was occurring, as our payslips still indicated that we were receiving super.
The committee heard that this delay in identification and reporting prevents the ATO acting in some cases, with some delays amounting to years.
Several witnesses explained how difficult it is for employees to pursue unpaid superannuation, including:
where the employee is unsure of their employment status and whether they are eligible for SG payments;
slow action and lack of communication with victims of SG theft including from the ATO and superannuation funds;
delayed obligation, with unpaid wages not incurring SG payments until they are paid (if they are paid);
inability to act, with SG payments owed to superannuation funds, not employees directly, giving them limited avenues for redress;
lack of options, with the ATO the primary place for workers with unpaid SG payments to go for recovery;
low recovery rates, especially for low value claims; and
structural issues which prevent workers knowing about SG theft in their workplace, and an inability to take joint action.
Need for ATO to improve communication
The committee heard from representatives of the UWU, who told the committee that communication with the ATO in relation to unpaid superannuation claims was limited:
We have very limited information about the action that the ATO were taking prior to our filing proceedings. We were advised by the ATO via phone—it would have been before February 2020—that the employer had agreed to enter into a payment plan for the amounts that were owed up until that point. But our members and the union weren't provided information about the time frame for that payment plan, or even whether any payments had actually been made.
I've received maybe two letters in the last three years, and they were just sort of stating where they were at with their investigation. I received my last letter last week, on Friday, to say that it had been finalised. But still no payment.
I think I got three letters all up from the ATO, basically saying they'd received the complaint, they were working on the complaint and now the complaint was closed.
After questioning by the committee, the ATO explained that there are barriers to releasing information about payment recovery because the employees do not have direct standing in the matter—it's a matter between the ATO and the employer.
However, on notice the ATO advised that legislative changes which took effect from 1 April 2019, permit more information to be released to employees, including the start and end dates of a payment arrangement, payment frequency and the amount of SG being collected.
Furthermore, the ATO is able to tell employees that an employer has entered into a payment arrangement in relation to SG liabilities and explain the payment arrangements at a high level. Nevertheless, there remains some information which the ATO is not permitted to disclose, including information that relates to the general financial affairs of the employer, including where other employees may also not have been paid, or the employer's financial position.
The committee heard that the ATO has chosen not to tell workers what is being done to recover their money and how their claim is progressing—information that could, for example, enable them to decide whether it's in their interest to stay with an employer.
After questioning from the committee, the ATO committed to reviewing its correspondence with a view to providing more information to employees.
HIA were also dissatisfied with communications from the ATO, explaining that the way in which the ATO publicised regulatory changes relating to SG payments and annual leave loading payments 'highlights the complexity of the system'. They further emphasised that the ATO did not notify its change of position in relation to SG payments to business directly and said that 'changes of this nature should be treated more precisely and more openly by the regulators'.