On Tuesday 28th July 2020, temporary Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 (OHS COVID-19 Regulations) were made. 

Previously, employers were not required to notify WorkSafe of an incident involving an infectious disease (including COVID-19) in the workplace, unless immediate inpatient treatment was required for a person or the infection caused a death.

This has now changed. The OHS COVID-19 Regulations extend the operation of Part 5 of the Occupational Health and Safety Act 2004 (OHS Act) to require employers to notify WorkSafe if: 

• an employer becomes aware that an employee or independent contractor engaged by the employer, and any employees of the independent contractor, has received a confirmed diagnosis of COVID-19, and has attended the workplace within the infectious period (being 14 days prior to receiving the confirmed diagnosis of COVID-19 and until clearance from isolation has been received); or
• a self-employed person has received a confirmed diagnosis of COVID-19 and has attended the workplace within the infectious period (being 14 days prior to receiving the confirmed diagnosis of COVID-19 and until clearance from isolation has been received).

The penalty for failing to notify WorkSafe under section 38 of the OHS Act, is up to $39,652 (240 penalty units) for an individual or up to $198,264 (1200 penalty units) for a body corporate.

The OHS COVID-19 Regulations are temporary and will expire 12 months after their making.

Please contact Workplace Legal  on 03 9972 4950  for further information or assistance.

On 16 June 2020 the Victorian Parliament passed legislation to outlaw “wage theft”, which will become the Wage Theft Act 2020 (“the Act”) when it receives Royal Assent. Victoria is the first jurisdiction in Australia to legislate on the matter of wage theft and the proposed law contains significant penalties for underpaying employees, including imprisonment.

The Act is due to commence no later than 1 July 2021 and will:

• create offences relating to the theft of employee entitlements and the keeping of records relating to employee entitlements;
• establish the Wage Inspectorate Victoria (WIV) who will be responsible for investigating and enforcing employee entitlement offences and related matters under the Act.

Offences under the Act

Under the Act, it is an offence for employers (individuals, partnerships and bodies corporate) and their officers to:

• Dishonestly withhold employee entitlements, either in full or in part;
• Falsify an employee entitlement record, in order to dishonestly obtain financial advantage or prevent exposure of a financial advantage having been obtained;
• Fail to keep an employee entitlement record, in order to dishonestly obtain financial advantage or prevent exposure of a financial advantage having been obtained;
• Authorise or permit someone else to commit one of the above offences.

“Employee entitlement” is defined in the Act as an amount payable, or any other benefit payable or attributable, by an employer to an employee. This includes wages or salary, allowances and gratuities, annual leave, long service leave, meal breaks and superannuation in accordance with the relevant laws, contracts and agreements (if they provide for payments and benefits in excess of the legal minimum).

The maximum penalties for committing any of the above offences under the Act are heavy: each have a proposed penalty of up to 6,000 penalty units ($991,320) for a body corporate, or up to 10 years’ imprisonment in any other case.

There are a number of other offences under the Act which carry varying penalties.

Bodies corporate and their officers

If an officer of a body corporate commits an employee entitlement offence, a body corporate may be prosecuted and found guilty. Further, if a body corporate commits an employee entitlement offence, each officer of the body corporate may be taken to have also committed the offence and may be prosecuted and found guilty.

Either a body corporate or an officer may be prosecuted regardless of whether the corresponding officer/s or body corporate have been separately prosecuted or found guilty of the offence.

The Act also applies to unincorporated associations and their committees of management in similar principles.

Offence for corporate culture to permit commission of employee entitlement offences

In the case of an employer that is not a natural person, authorisation or permission to commit an employee entitlement offence may be established by proving that a corporate culture existed within the employer that directed, encouraged, tolerated or led to the relevant conduct being carried out.

“Corporate culture, in relation to an employer that is not a natural person, means an attitude, policy, rule, course of conduct or practice existing within the employer generally or in the part of the employer in which the relevant conduct is carried out or the relevant intention is formed.”

Defences

Consent by the employee to a reduction in payment or entitlements is not a defence if the employee entitlement is reduced below the minimum amount or benefit required under the relevant laws.

If an employer or its officer can prove that, prior to the alleged employee entitlement offence, due diligence was exercised to pay or attribute the entitlements to the employee, or to prevent the commission of the offence by an officer, they can defend their charge.

Establishment of the Wage Inspectorate Victoria

The Act establishes the Wage Inspectorate Victoria, and its own Commissioner, to educate, promote compliance and investigate possible breaches of the legislation. Investigation may culminate in commencing criminal proceedings against employers and former employers who are alleged to have committed offences against the Act. Proceedings must be brought within 3 years of the alleged offences.

The Act gives the WIV powers which include the ability to enter and search premises, seize and examine documents, compel an employer to produce materials or attend the WIV to give evidence, answer questions or produce documents. The WIV has the authority to appoint inspectors and the authority of inspectors under the Act is broad.

Lessons for employers

The proposed maximum penalties for withholding employee entitlements are harsh and officers of bodies corporate are not protected by the corporate veil.

Although the legislation is not yet in effect, WPL recommends that employers use the time between now and 1 July 2021 to:

• Conduct payroll audits to ensure all employees are being paid correctly and in accordance with their contract, the relevant award or enterprise agreement; and
• Undertake training with HR, payroll and anyone else overseeing employee pay to ensure the organisation is meeting employee entitlement obligations.

Please contact Workplacelegal on  03 9972 4950 for further information or assistance.