As of 1 July 2021, Wage Inspectorate Victoria now has powers to investigate and prosecute wage theft under the Wage Theft Act 2020 (Vic), in addition to its existing role enforcing Victorian laws relating to long service leave, child employment and contractors in the transport and forestry industries.
For a summary of offences and penalties under the Act, see our previous article on the subject.
In addition to its functions of promoting compliance and raising awareness of obligations and rights under the Act, the Inspectorate has a range of powers which it can exercise directly or through its inspectors, including:
- commencing proceedings in respect of offences;
- entering and searching premises with consent;
- (in limited circumstances) entering and searching premises without consent by providing notice;
- examining, copying, or seizing documents and things which are connected with offences;
- applying to a court for a search warrant;
- executing a search warrant with a member of the police force, including entering premises by force;
- requiring the production of records and documents; and
- requiring persons to attend the Inspectorate to answer questions.
The Inspectorate may also accept enforceable undertakings from employers and seek restitution orders from a court where necessary.
In support of the new laws, the Victorian government has recently allocated $9.6 million to develop a new ‘fast track’ model for hearing wage theft cases in the Magistrates’ Court.
The past few years have seen a number of heavy penalties issued by the Fair Work Ombudsman in relation to underpayments, and the maximum penalties for serious and systematic underpayments under the Fair Work Act 2009 have increased significantly. The Victorian legislation will not apply to all underpayment situations, however the penalties and the broad powers of the Inspectorate should encourage Victorian employers to be more vigilant than ever in ensuring that they are correctly paying employees and keeping adequate employee records.
Employers should consider auditing their payroll systems to ensure that they are functioning properly, and that they accurately reflect the requirements of any applicable award or enterprise agreement. If an organisation has any doubt as to its award coverage or the applicable pay rates for its staff, it should seek legal advice immediately to reduce the risk of penalties.
How we can help
If your business is being investigated, whether by the Inspectorate or the Fair Work Ombudsman, it is important to understand your rights and obligations. Please contact Russell Kennedy’s Workplace Relations, Employment and Safety Team if you require any advice about employee entitlements, underpayment claims, or dealing with investigations.
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