List of Recommendations

Recommendation 1

6.9

The committee recommends that the Australian Government prioritise amendments to the Fair Work Act 2009 to criminalise wage theft in Australia, and that such legislation:

apply to the theft of all employee remuneration (including loadings, penalty rates, overtime, leave, allowances and superannuation guarantee);

include penalties for the falsification of records; and

is drafted in consultation with the states to ensure Commonwealth wage theft laws do not weaken existing state legislation.

Recommendation 2

6.10

The committee recommends that the Australian Government amend the Fair Work Act 2009 to:

increase civil penalties for wage theft;

make it an offence for employers to advertise employment with a rate of pay less than the national minimum wage; and

capture all parties and individuals that directly participate in wage theft, including those who knowingly or recklessly create an environment of wage theft (including franchisors, advisors, head contractors and other third-party participants in supply chains).

Recommendation 3

6.11

The committee recommends that the Australian Government consider tasking the Australian Competition and Consumer Commission to bring forward a legislative amendment to the Competition and Consumer Act 2010 to incorporate wage theft as an anti-competitive practice.

Recommendation 4

6.12

The committee recommends that the Australian Securities and Investments Commission improve enforcement action and director disqualifications from managing a company, where companies use Superannuation Guarantee payments or wages owed to trade while otherwise insolvent.

Recommendation 5

6.17

The committee recommends that the Australian Government establish a small claims tribunal, ideally co-located with the Fair Work Commission, to create a simple, affordable, accessible, and efficient process for employees to pursue wage theft, including Superannuation Guarantee non-compliance.

Recommendation 6

6.18

The committee recommends that the Australian Government, through the Australian Taxation Office, review the taxation treatment of wages repaid to employees following incidents of wage theft to ensure they are treated no less favourably than if wages were paid when they were due.

Recommendation 7

6.22

The committee recommends that the Australian Government review whether employee representatives that hold 'right of entry' permits can be better utilised to inspect and investigate potential underpayments across workplaces.

Recommendation 8

6.23

The committee recommends that the Australian Government amend the Fair Work Act 2009 to include provisions relating to the production of documents to permit holders, to:

introduce a penalty for individuals or entities that provide false or misleading documents to a permit holder exercising right of entry; and

expand section 557C to apply to the failure to produce accurate documents to a permit holder exercising right of entry.

Recommendation 9

6.28

The committee recommends that the Australian Government consider bringing forward amendments to the Superannuation Guarantee (Administration) Act 1992 to:

require Superannuation Guarantee payments to be aligned with the payment of wages;

require Superannuation Guarantee payments to be made on every dollar earned to achieve simplicity and ease of compliance; and

consider an incremental implementation strategy, similar to that used for the rollout of Single Touch Payroll, to ensure small businesses are adequately prepared for changes to the timing of Superannuation Guarantee payments.

Recommendation 10

6.32

The committee recommends that the Australian Government include superannuation in the National Employment Standards.

Recommendation 11

6.33

The committee recommends that the Australian government consider including superannuation in the Fair Entitlements Guarantee payments.

Recommendation 12

6.34

The committee recommends that the Australian Taxation Office improve its communication with individuals to keep them promptly and fully informed of the progress and outcomes regarding their Superannuation Guarantee non-compliance cases, including:

that before entering into a payment plan to recover Superannuation Guarantee payments from a non-compliant employer, the Australian Taxation Office be required to notify the affected employee and gain their consent to the course of action; and

that in determining a reasonable payment plan to recover Superannuation Guarantee payments from a non-compliant employer, the Australian Taxation Office must give primary consideration to the loss of retirement savings suffered by the employee.

Recommendation 13

6.35

The committee recommends that the Australian Government review all current compliance and recovery activities related to unpaid Superannuation Guarantee contributions, including:

determining which cases should remain with the Australian Taxation Office, and which ones could be transferred to, or shared with, the Fair Work Ombudsman or an alternative body;

directing the Fair Work Ombudsman to begin receiving and acting on Superannuation Guarantee non-payment complaints where appropriate, rather than simply referring the affected employees to the Australian Taxation Office;

reviewing the Superannuation Guarantee contribution regime and its management by the Australian Taxation Office to ascertain whether it is adequately deterring underpayments and recovering unpaid Superannuation Guarantee entitlements; and

improving proactive Superannuation Guarantee initiatives including strengthening and increasing penalties for deliberate and repeated acts of non-compliance, the inclusion of random audits, and the publication of enforcement activities in relation to Superannuation Guarantee payments.

Recommendation 14

6.36

The committee recommends that the Australian Government consider legislative options to give employees, or other parties acting on their behalf such as unions, superannuation funds, and legal representatives greater standing to assist in the recovery of unpaid superannuation.

Recommendation 15

6.41

The committee recommends that the Australian Government, as a priority:

extend the Fair Entitlements Guarantee to all employees, including those on temporary visas, building on recommendation 13 of the Migrant Workers' Taskforce report; and

implement a National Labour Hire Licensing Scheme, building on recommendation 14 of the Migrant Workers' Taskforce report. The National Labour Hire Licensing Scheme should build on existing frameworks, such as those schemes operating in Queensland and Victoria, to provide a nationally consistent framework.

Recommendation 16

6.42

The committee recommends that the Australian Government explore reform to visa laws to allow migrant workers who have been exploited or underpaid to remain in Australia until the relevant legal processes for recovery of lost wages or conditions is finalised.

Recommendation 17

6.43

The committee recommends that a formal, and legally binding firewall be established between the Fair Work Ombudsman and the Department of Home Affairs to protect whistle-blowers and temporary visa holders that report exploitation or wage theft to the Fair Work Ombudsman and extend protection to exploitation and wage theft claims progressed through the courts.

Recommendation 18

6.46

The committee recommends that the Australian Government act as a model procurer by ensuring that:

government procurement powers are being used to support businesses that engage in fair, equitable, ethical and sustainable practices, including demonstrated compliance with labour laws; and

wage theft does not occur within its own workforce, including in government funded sectors.

Recommendation 19

6.50

The committee recommends that the Australian Government improve protections for employees who engage in lawful activity to prevent wage theft, including joining a union, pursuing underpayments through established processes, publicly speaking out against poor workplace practices, exercising workplace rights, and engaging in industrial activity.

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