SA Unions Submission to the Legislative Council Select Committee
Inquiry into Wage Theft in South Australia
SA Unions is the peak trade union council for South Australia. Through its affiliated organisations, it represents approximately 160,000 union members in all industries and sectors.
Improving the wages, working conditions and safety of employees is a major focus for the union movement as is protecting workers from exploitation and the theft of hard-won salary and superannuation entitlements.
For over 150 years unions have been on the front line of political, industrial and legal battles to create protections for workers entitlements. Unions are engaged daily in the task of ensuring that income stolen from workers is returned to them.
The Legislative Council Select Committee Inquiry into Wage Theft in South Australia is timely because the prevalence of wage theft is rising and the means available to workers and their representative organisations to respond must be improved and expanded.
Wage theft is the largest most pervasive form of crime in South Australia. Its perpetrators are getting away with wage theft on an industrial scale because the laws and enforcement practices that should constrain them are weak, ineffectual or non-existent.
Almost everyone suffers from wage theft. Workers who lose wages and retirement income; law-abiding businesses who are put at a competitive disadvantage; and the whole community when government loses the revenue needed to provide important services.
Change is needed.
In this submission we put forward proposals to tackle wage theft involving education, policy and legislative changes, and aggressive campaigns to ensure enforcement and compliance with the law.
What is Wage Theft?
Many wage earners still benefit from a uniquely Australian industrial relations framework that ensures they are fairly compensated for their time at work through a range of national standards, award payments and agreements negotiated at the workplace.
In addition, a Superannuation Guarantee means that almost every full-time, part-time and casual worker in Australia should be entitled to a contribution to their retirement savings.
Unfortunately, this seemingly benign state of affairs is not the complete picture.
Increasingly, many Australians who are giving work their best shot aren’t getting a fair go in return. While workers are holding up their end of the deal a sizeable and increasing minority of employers are not. These people are withholding workers wages or other entitlements through ignorance of or indifference to the law or because they are engaged in forms of exploitation safe in the knowledge that their activities will generally not come to light or be punished.
Wage theft has been described as:
“An insidious but often unrecognised crime. It often goes unnoticed, it often goes unpunished, but it always undermines the very tenets of Australia’s sense of fairness. In many ways, it attacks at the core of Australia’s social and economic compact – one that promises if you work hard, you’ll be able to get ahead. It is also unfair to most employers – from the smallest to the largest businesses – that do their best to comply with the law.”
South Australia is not immune to wage theft. It is estimated that 165,000 - 170,000 South Australian workers are impacted by wage theft to varying degrees (prior to considering the non-payment of underpayment of superannuation). This equates to 20.24 per cent of the state’s workforce of 835,800 (or 1 in 5 South Australian workers).
When superannuation is considered, 29.1% of workers are likely subject to the non-payment or underpayment of superannuation to varying degrees. Data from Industry Super Australia shows that 173,550 South Australians are underpaid superannuation annually. “It is almost certain that the collective loss of superannuation and wages is costing South Australians more than half $1 billion every year.”
Wage theft occurs most often to those on lower wages, those in temporary work, or to migrant workers and backpackers. Unfortunately, South Australia ticks those boxes with the second lowest median weekly earnings in Australia (in fact Regional South Australia has the lowest overall median earnings for employees at $922).
But while select groups may be more at risk of the direct impacts of wage theft, the crime inevitably effects all South Australians.
Wage theft eats directly into the disposable income of its victims, reducing aggregate demand and ultimately constraining economic growth in South Australia.
Defining Wage Theft
The simplicity of the definition of wage theft adopted by the Queensland Parliamentary Inquiry appeals to us.
“Wage theft is the underpayment or non-payment of wages or entitlements to a worker by an employer, encapsulating any of a range of activities that deny workers their legal/entitlements.”
The Queensland Inquiry identified these activities as constituting theft:
It is clear from several of the submissions to this Inquiry that some parties are not comfortable with the application of the criminal term ‘theft’ because it implies an intent that may not be present in many instances of non-compliance. A preference for talking about “non-compliance” is evident.
Intent will certainly be an issue for the Committee to grapple with as it looks at definitional thresholds for the application of criminal sanctions, should a criminal offence of wage theft be recommended.
We support the view that criminal sanctions should apply in relation to the deliberate and/or reckless conduct of an employer.
However, we are unapologetic about using the term “wage theft” to conceptualise the broader problem of industrial scale non-compliance with the law which results in South Australian workers having hundreds of millions of dollars of entitlements illegally taken or withheld from them annually.
The Committee would certainly be hamstrung in its investigation of the Terms of Reference if it became concerned about the intent of people who are not complying with the law because it is impossible to determine or ascribe intent when most of the data concerning “wage theft”/”non-compliance” makes no distinction between circumstances of intent or accident (ie FWO audits). In any event the impacts of non-compliance are the same irrespective of intent.
Submission Addressing Terms of Reference
The Report of the Inquiry into Wage Theft in Queensland notes that wage theft is not a new feature of the national employment landscape however it does appear to be growing both in prevalence and prominence.
Media reports have exposed significant worker exploitation in the supply chains and franchises of nationally recognised brands such as Myer, Woolworths, Coles, Aldi, 7-Eleven, Pizza Hut, Domino’s Pizza, Caltex, United Petroleum, and others.
Academic publications, and Fair Work Ombudsman (FWO) reports “paint a picture of widespread non-compliance prompting concerns about the normalisation of various forms of underpayment, including suggestions that it may become ‘endemic’ and part of the business model in some sectors.”
Evidence of wage theft reported by statutory bodies and Parliamentary Committees is summarised in the Report of theInquiry into Wage Theft in Queensland:
The submission of the McKell Institute to this South Australian Inquiry combines information available from the Fair Work Ombudsman’s Audits in South Australia with information available from Industry Superannuation Funds to produce a conservative estimate of over half $1 billion in annual wage theft in this State.
Wage theft may be more pervasive in some industries and may affect vulnerable workers at a higher rate, but it is present in all industries and its effects are widespread.
The McKell Institute contextualises wage theft by comparing it with what we think of as “material theft” (theft from car shops etc). They say, “it is probable that the direct costs of wage theft is up to 10 times higher than the direct cost of the material theft of goods”.
Why does it matter that we have a growing prevalence of wage theft in Australia, and why should it demand the attention of policy makers and the public at large?
Most obviously, wages matter because they are how most Australians support themselves. Compensation of employees constitutes far and away the biggest single source of personal income for Australian households. It accounts for two-thirds of all primary household income, or around A$875 billion in 2018.
That is five or more times larger than any other major source of personal income, including small business income, investments and business profits.Moreover, some other forms of income (such as superannuation) depend on wage levels, and this magnifies the ultimate impact of wage theft on lifetime household incomes. So, there is no factor more important in determining the financial wellbeing of Australian households than how much workers are being paid.
As the Queensland Parliamentary inquiry said, “the immediate impact of the financial loss associated with wage theft cannot be underestimated, noting the overrepresentation of low-income, vulnerable workers among those affected; and the scope for resulting pressures on basic things like rent, bills and groceries.”
Beyond the immediate loss from wages the impact of lost superannuation has a cumulative effect that can destroy workers retirement savings.
For those on low incomes or engaged in precarious employment even small amounts of unpaid entitlements can have a devastating effect. Workers may miss repayments or rent or vehicle registration or insurance cover. This in turn can result in a spiralling debt trap, repossessions, convictions or evictions.
Society recognises the need to extend compassion, assistance and compensation to the victims of many crimes. But victims of wage theft often suffer the same sense of despair desperation and anxiety as those who are conned, robbed or otherwise fleeced of their savings or property.
Business also suffers from wage theft. When billions of dollars are taken from workers the impact on consumer spending directly affects all businesses.
Individual businesses may be affected profoundly when their competitors use dishonest employment practices to undercut the business models of law-abiding employers. This is particularly true when tendering for work.
Wage theft also results in cuts to taxation revenueand all South Australians suffer when shortfalls in taxation revenue results in a reduction in the number or quality of essential government services.
In short, every South Australian is a victim of wage theft to some extent and efforts to minimise it should be a high priority for the South Australian government.
Various forms of wage theft are identified and explored at great length in the Queensland Wage Theft Inquiry (see also Defining Wage Theft in this submission).
In Wage Theft, Economic Distress: The Impact of Wage Theft on Queensland’s Workers and Economy, The McKell Institute found that:
“Wage theft can take a number of different forms but generally relates to employers deliberately not paying employees their full entitlements including superannuation, award and penalty rates, leave and other employee entitlements. Wage theft should be distinguished from accidental errors, where an employer makes a genuine one-off mistake in the provision of entitlements. Wage theft occurs when the employer knows, or should be expected to know, of the employees’ rightful entitlements and yet does not afford the employee these full entitlements. Wage theft can also occur in less direct ways, such as through the termination of an enterprise bargaining agreement which may revert workers back towards a lower award wage”.
The report identified these forms of wage theft:
Wage theft is commonly seen in the form of unpaid superannuation. Attachment 1 to this submission is a new analysis of Australian Taxation Office Data by Industry Super Australia.
Datafrom Industry Super Australia shows that those workers who were being underpaid superannuation were being underpaid on average almost $1700 per year. `
The submission of the McKell Institute breaks this data down to reveal 173,550 South Australians were underpaid superannuation to the tune of $285,668,520 annually. This is a cost which compounds year on year. The losses from one year alone will compound to billions of dollars over a notional 40 yearworking life.
Figure 11 and figure 12 from the McKell submission illustrate this point.
There are a range of possible reasons why wage theft occurs.
There are honest mistakeswhich result from the application of the wrong modern award, misclassification of employees under a modern award and employers not understanding the circumstances when allowances, loadings and penalties are to apply and be paid. Honest mistakes are rectified promptly when they are brought to the attention of an employer. You would expect honest mistakes to benefit the worker as often as it benefited the employer but, in our experience, honest mistakes are rarely to the advantage of the employee.
In any event ignorance of the law is not an acceptable defence and industrial law is getting less, not more complicated with fewer modern awards and the end of transitional arrangements from the old industrial relations system.
For some wage theft is a business model driven by commercial gain. The Queensland Wage Theft Inquiry observed that “deliberate wage theft occurs in a wide range of industries and employment arrangements, including large organisations and company franchises. In some cases, the conduct was of such a systemic nature it was included in the employer’s business model. Some employers reported as appearing to treat wage theft as a usual business practice having little fear of being caught.”
A recent Senate Committee Inquiry stated, “underpayment is so prevalent in some sectors that it can no longer be considered an aberration; it is becoming the norm.”
Lack of workers awarenessof their correct wage and entitlements is a factor which assists to perpetuate wage theft. If workers are unaware of their entitlements, they are unable to enforce their rights and hold their employer accountable.
Even when workers are aware of their entitlements there is a power imbalance that often stops them attempting to enforce their rights. Young workers and migrant workers are often casual workers, temporary visa workers or on labour hire or sham contracts. They believe they are in a weak position to ask for entitlements. Clients of the Young Workers Legal Service are often concerned about intimidation and reprisals and are so worried about losing their jobs (or future jobs), reputational damage or deportation that they refuse to pursue wages they are owed.
These issues together with concerns over the cost and time to recover wages are cited by employees as reasons they do not report wage theft.
It is often the case that pursuing or detecting wage theft is hampered by a lack of proper documentation includingpayslips and attendance records.
The Black Economy Task Force noted that wage theft may be facilitated by employers who pay cash in hand and avoid complying with relevant reporting, documentation and legal entitlements. According to the Task Force the practice was used to systematically “avoid paying minimum wages, avoid paying taxes, reduce compliance costs and allow underreporting of income by the recipient of the payment.”
In its report the Black Economy Task Force noted broader drivers of the black economy including a perception of high tax and regulatory burdens and low profit margins. It reported that the black economy “is fuelled by a combination of commercial opportunity and poor transparency.”
There is no comprehensive database on wage theft in South Australia because:
Available statistics are drawn from academic interviews and surveys, administrative data from regulators, received reports of non-compliance and the results of specific investigations or compliance audits (and associated enforcement).
Perhaps the most comprehensive data comes from the ATO who have responsibility for monitoring Superannuation Guarantee payments and from industry superannuation funds.
Nevertheless, a clear picture has emerged from Parliamentary Inquiries and Fair Work Ombudsman audits of the key industries where wage theft is most prevalent.
Laurie Berg author of a major survey on temporary migrant workerstold the Queensland Wage Theft Inquiry that the risks of exploitation are higher in labour market segments “where there is a concentration of low skilled work, thin profit margins, limited union presence and fragmented employment arrangements which may include franchise networks labour hire arrangements supply chains and subcontracting. These are characteristics that are common to a number of industries that have been singled out as having “systemic” problems with wage theft it is no coincidence that vulnerable cohorts of workers feature predominantly in the workforces of these industries.”
The National Temporary Migrant Work Survey identified that ‘wage theft is endemic among international students, backpackers and other temporary migrants in Australia’ with approximately 30 percent of surveyed workers reporting they earned approximately half the minimum wage, and 46 percent indicating they earned $15 per hour or less (excluding 457 visa holders).
Young people ‘are notably vulnerable for similar reasons to those of many migrant workers: a lack of understanding of workplace laws and culture, a lack of marketable skills, especially among students still completing tertiary study, and little or no bargaining power.’
The hospitality, food services, retail, farming, fruit & vegetable picking and food processing industries are rife with wage theft because they create “a perfect storm” for exploitation. The work is insecure; there are high numbers of migrant workers and young people; low wages are already being paid; people are desperate for work; there is a lack of knowledge about industrial entitlements and an absence of strong unionisation.
In 2017-18, the FWO reported that of all the anonymous reports of non-compliance received by the agency, the accommodation and food services industry (hospitality) ‘was by far the most reported industry, amounting to 37% of all anonymous reports. The next highest industries were retail (13%) and building and construction (5%)’.The FWO also received the most enquiries from the accommodation and food services industry (12 percent), followed by health care and social assistance (10 percent), professional, scientific and technical services (10 percent) and retail trade (9 percent).
Further, the FWO highlighted its work to target ‘industries and geographic regions with high or emerging levels of non-compliance such as hospitality and cleaning’, including reporting on ‘how key industry sub-sectors (security and cleaning services) rely on multi-level labour supply arrangements and the correlation with non-compliance’.
Whether or not the term “wage theft” properly describes all circumstances where a worker is not paid their correct entitlements it is obvious that the extraordinary level of non-compliance with our industrial laws cannot be allowed to continue.
South Australian workers are losing hundreds of millions of dollars annually of wages and retirement income. Law abiding businesses are facing unfair competition and being dragged into a race to the bottom and the government is being denied revenue it needs to provide the services the community demands.
It is abundantly clear that the current regulatory framework is ineffective. The Regulator relies on intermittent audits and occasional strategic litigation of repeat offenders (eastern states) to send a message to employers they should comply with the law. Unsurprisingly those intent on non-compliance pay no attention because the prospect of them being prosecuted approaches zero. Since 2009 the Fair Work Ombudsman has audited only around 1.19% of South Australian businesses. More than 37% of those audited have been found to be non-compliant with federal wage laws. It is not known if any have been prosecuted in relation to non-compliance.
Not only is the regulator’s approach weak, the Fair Work Ombudsman has been stripped of resources which only adds to its ineffectiveness.
However, the fundamental problem is not one the Fair Work Ombudsman can solve.
Governments need to send a clear signal of zero tolerance for wage theft.
We believe the time has arrived to criminalise wage theft to provide a “disincentive” by correcting or rebalancing incentives for compliance.
It would bring some balance to the employment relationship.
If a worker steals from their employer, not only is it treated as theft, but it can be an aggravated offence under the South Australian Criminal Law Consolidation Act 1935 (maximum penalty 15 years). The thought that it is an aggravated offence for an employee to steal from the employer, but it is dealt with as an administrative matter if an employer is stealing from an employee harkens back to the master servant relationship of the 18th century.
Whether it is industrial law or any other law, people calculate whether it is in their best interests to comply with the law or not comply with the law. When the reward for non-compliance is high, the risk of detection is low, and the penalty for non-compliance light the law will be regularly flouted.
In this case there is a high reward (profit competitive advantage) a low risk of detection (a little over 1%) and in most cases the “penalty” will amount to no more than having to pay what was due in the first place.
We believe that the threat of a criminal conviction and the possibility of being prohibited from running a business will provide significant deterrence to engaging in wage theft.
In our view much of the “education function” of the Fair Work Ombudsman would be better done by distributing those funds to employer and employee organisations who have experience in industrial relations and are well-placed to run education programs about the rights and responsibilities of employers and workers.
We consider the Fair Work Ombudsman should concentrate on wage enforcement campaigns and repeat audits of non-compliant employers. The FWO should also conduct a much higher level of prosecutions.
Unions have been frustrated in attempts to recover outstanding wages from employers who are determined not to pay. It is one thing to go to the South Australian Employment Tribunal (a no cost jurisdiction), prove your case of wage theft and get a judgement. However, if the employer does not pay the union or a worker is then put to additional expense and time pursuing the matter in the magistrates Court who have the power and staff to enforce a judgement. This is unnecessary double handling and defeats the purpose of having the South Australian employment Tribunal is a no cost jurisdiction if the worker must pay to enforce its judgements.
In South Australia the South Australian Employment Tribunal should be able to make an order for unpaid entitlements and set a date by which that payment must be made. A failure to pay should result in enforcement being undertaken by the State at no additional cost or without further delay to the worker.
We believe there is merit in establishing a fund, topped up by fines on those who engage in wage theft which could provide support and compensation for workers who have lost entitlements through wage theft. The concept is like the victims of crime fund.
The South Australian Government should conduct a public education campaign to assist in the fight against wage theft that provides information about where affected workers can go for help to recover their lost wages.
The South Australian Government should establish a fund under the oversight of the Industrial Relations Advisory Committee to fund visits to schools, TAFE and VET providers, and universities. The visits would be conducted on an opt in basis and provide information focusing on the rights and entitlements of workers and the responsibilities employers.
The South Australian government should work with the higher education sector in South Australia to ensure international students have access to relevant information and advice on their workplace rights in Australia, including the right to join a union and where to go for further information.
The South Australian government must drop proposals to amend the Labour Hire Licensing Act 2017 and instead must move swiftly to comply with that Act and establish the intended Labour Hire Licensing Scheme.
The State government should lobby the Commonwealth to introduce a national labour hire licensing scheme, so the benefits of the South Australian scheme can apply across the country.
The South Australian government must ensure its current procurement policies allow for action to be taken against companies that have underpaid workers.
Tenders should only be let on the basis that a tenderer complies with all appropriate industrial legislation, industrial instruments and superannuation requirements.
The South Australian government should legislate to criminalise intentional reckless or grossly negligent instances of wage theft.
The South Australian government should take actions available to ensure that wage recovery processes for South Australian workers are simple, quick and low-cost. The SAET should review relevant forms and processes to ensure the legal process is simple and user friendly for workers and their representatives.
The State government should ensure that costs associated with recovery of stolen wages are waived for the victims of wage theft.
Superannuation should be paid fortnightly to coincide with wage payments.
The ATO should increase proactive enforcement of underpaid super.
Penalties for company directors who refused to pay a superannuation guarantee liability should be strictly enforced.
Unpaid superannuation should be included as a recoverable entitlement under the Fair Entitlements Guarantee scheme and the Fair Entitlements Guarantee scheme should be extended to temporary overseas visa workers who are currently denied access.
The State government should seek to act collaboratively with the Federal Government and State and Territory governments to stamp out cross-border franchise operations engaged in wage theft and to develop interstate procurement policies that aim to iron out the existence of wage theft in supply chains.
The Federal Government should establish a full, independent review into the performance, resourcing and culture of the Fair Work Ombudsman to ensure that it can respond to wage theft and support affected workers in an effective and timely fashion. This review should consider allocating some of the resources of the FWO to Unions, Employer Organisations and specialist legal services (eg the Working Women’s Centre, Young Workers Legal Service) to conduct education programs and provide advice and training about the rights and responsibilities of employers and workers.
The resources of the FWO must be dramatically increased in relation to its enforcement and compliance activities and it is must make a point of conducting follow up audits on non-compliant employers.
Superannuation should be included as an industrial entitlement in the National Employment Standards.
The ‘reckless defence’ should be removed from the offence of sham contracting under section 357(2) of the Fair Work Act2009 (Cth) and a new ‘reasonable person’ test introduced to determine whether an employer has engaged in sham contracting.
The South Australian Government should legislate to make wage theft a criminal offence, where the conduct is proven to be deliberate or reckless.
An automatic termination date should be legislated for remaining Work Choices ‘zombie’ agreements, with consideration given to necessary transitional arrangements and protectionsto ensure no workers are disadvantaged as a result.
Reform of the Fair Work Act 2009 (Cth) is needed to more adequately accommodate emerging forms of non-traditional employment. This should include consideration of law reform to broaden the definition of worker and provide broader access to the benefits of collective bargaining, minimum standards for pay and conditions, and access to the Fair Work Commission.
McKell: The Impact of Wage Theft on Queensland’s Workers & Economy P 4
McKell Institute Submission to the South Australian Parliamentary Inquiry into Wage Theft: Finding 1: p5
Ibid Finding 5, page 5
Report of the Inquiry into Wage Theft in Queensland 2018 p22
Report of the Inquiry into Wage Theft in Queensland 2018 Pge 4
Sarah Kaine, Emmanuel Josserand and Martin Boersma, ‘How to stop businesses stealing from their employees’, The Conversation, 8 September 2017, https://theconversation.com/how-to-stop-businesses-stealing-fromtheir-employees-83363
In November 2017, in reporting the results of the landmark National Temporary Migrant Work Survey, Berg and Farbenblum advised that the study confirmed that ‘wage theft is endemic among international students, Backpackers and other temporary migrants’ and that ‘for a substantial number of temporary migrants, it is also severe’. The Senate Education and Employment References Committee (Senate EERC) also reported in
September 2017 that ‘corporate avoidance of obligations to workers has become a business model taking many forms’; and in March 2016 that unscrupulous operators have ‘…built the systematic exploitation of visa workers into their business models’. See: Laurie Berg and Bassina Farbenblum, Wage Theft in Australia: Findings of theNational Temporary Migrant Work Survey, University of Technology Sydney, University of NSW Law, and the Migrant Worker Justice Initiative, November 2017, p 48; Parliament of Australia, Senate EERC, CorporateAvoidance of the Fair Work Act 2009, September 2017, p 3; Parliament of Australia, Senate EERC, A NationalDisgrace: The Exploitation of Temporary Work Visa Holders, March 2016, p 324. See also: Louise Thornthwaite, ‘The living wage crisis in Australian industrial relations’, Labour & Industry: a journal of the social and economicrelations of work, 2017, pp 261-269
Australian Government, Productivity Commission, Workplace Relations Framework: Final Report, no. 76, vol. 1 November 2015, p 48.
Parliament of Australia, Senate EERC, A National Disgrace: The Exploitation of Temporary Work Visa Holders, March 2016, pp 1-5.
McKell Submission to SA Wage Theft Inquiry pp 30.
Wages Crisis in Australia: Andrew Stewart, Jim Stanford and Tess Hardy, University of Adelaide Press 2018 page 278
Report of the Inquiry into Wage Theft in Queensland 2018 pge 57
McKell Institute the Economic Impact of Wage Theft in South Australia P 40 figure 6.1
Cavanough, E., & Rajadurai, E. 2018. Wage Theft Economic Distress: The Impact of Wage Theft on Queensland’s Workers and Economy. The McKell Institute. Accessed online: https://mckellinstitute.org.au/ app/uploads/McKell-QLD-Impact-of-Wage-theft-onQLD-Workers-and-Economy-FINAL.-.pdf
Queensland Wage Theft Inquiry P 79
Parliament of Australia, Senate EERC, Corporate Avoidance of the Fair Work Act 2009, September 2017, p 59.
Australian Government, Black Economy Taskforce, Final Report, October 2017, p 12.
ibid p 15
Laurie Berg and Bassina Farbenblum, Wage Theft in Australia: Findings of the National Temporary Migrant Work Survey, University of Technology Sydney, University of NSW Law, and the Migrant Worker Justice Initiative, November 2017
Inquiry into wage theft in Queensland P 31, 32
Laurie Berg and Bassina Farbenblum,Wage Theft in Australia: Findings of the National Temporary Migrant Work Survey
ibid P 36
Australian Government, FWO and ROC, Annual report 2017-18, 2018, p 16.
ibid, p 14.
McKell Institute submission P 20
Criminal Law Consolidation Act 1935 Section 134