The Victorian government has urged federal Labor to expand its proposed wage theft laws to include “reckless” underpayment and warned it not to override its state offence.
The Allan government has said the state offence would be “unlikely to withstand challenge” because it would be inconsistent with the proposed federal wage theft offence in a submission to an inquiry on Labor’s industrial relations bill.
It comes as the Minerals Council has revealed fresh details of its campaign against the bill, telling the inquiry it expects to spend $20m-$24m in 2023-24. That would make its campaign against the closing loopholes bill on par with the amount it spent advertising for the Rudd government to ditch the mining tax.
On 20 October Minerals Council chief executive, Tania Constable, wrote to the Senate employment legislation committee revealing its members had made “additional contributions” to pay for the ads, with Rio Tinto, Glencore and BHP the biggest donors.
While the Albanese government faces a fierce backlash from employer groups over the bill, it is also facing calls from the Australian Council of Trade Unions for the laws to go further in protecting workers’ pay and conditions.
The Victorian government and ACTU have both called for non-payment of superannuation to be added to the wage theft offence, a move backed by the Greens and the independent senator, David Pocock.
Victoria submitted to the Senate employment committee that wage theft can take “many forms”, including “reckless conduct”.
It warned the current bill – which requires prosecutors to show beyond a reasonable doubt that the employer intended to underpay workers – “significantly raises the threshold of proof from Victoria’s objective dishonesty threshold and narrows the conduct that will be captured”.
It called for an offence based on recklessness with lower level penalties, and penalties for misleading the Fair Work Ombudsman or breaching an agreement to rectify underpayment.
The Victorian government submitted the new federal wage theft offence is “likely to render Victoria’s wage theft laws redundant by entering the field of criminalising the underpayment of wages and other entitlements”.
“The risk of direct inconsistency with a law of the commonwealth would mean that Victoria’s primary wage theft offence is unlikely to withstand challenge and become largely inoperative.”
It said that unless independent contractors are experiencing any “material imbalance in negotiating power” then “freedom of contract” should remain.
