In their article “Wage Theft” in the latest issue of Workplace Review, Vol 10 No 1, Kirsty Stewart, Rick Manuel, and Kaz Eaton address the problem of wage theft which has been so often in the news of late.

They start by distinguishing wage theft from underpayment of wages – the former implying intentional action on the part of employers to not pay their employees in accordance with employment law obligations (eg award wage rates), the latter possibly attributable to ignorance.  Some of Australia’s largest employers have been found to have made, or confessed to, large scale underpayments in recent times, including Wesfarmers, Qantas, the Commonwealth Bank, and the ABC, totalling into the hundreds of millions of dollars.

Stewart, Manuel, and Eaton then discuss the considerations practitioners should have in mind when pursuing the recovery of wages, including:

• establishing whether there is actually an employment relationship (as opposed, say, to the worker concerned being an independent contractor), a threshold issue for determining jurisdiction;
• identifying the correct employer against whom to make the claim – it may be problematic in a labour hire situation for example; and,
• deciding which is the appropriate forum in which to pursue the claim – which may be pertinent if there is an accessorial liability element to the claim.

In the same issue of Workplace Review, 10.1, there is a Case Note analysing the Full Federal Court’s decision in WorkPac Pty Ltd v Rossato (2020) 296 IR 38; [2020] FCAFC 84 regarding casual employees receiving annual and other paid leave.

The authors, Susan Zeitz and Rick Manuel, suggested that should an employer wish to avoid having to pay for significant underpayment of an employee arising from the fact that the employee is entitled to annual and other leave and not entitled to have these offset by a 25% casual loading, then the employer, in deciding to engage casual employees, should give consideration to such matters as:

• recognising when the casual employment becomes regular and systematic employment;
• having written documentation of employment contracts; and
• maintaining appropriate recordkeeping of hours and times.

Workplace Review also focuses on the people involved in IR/employment law. Appropriately, issue 10.1 also contains a number of tributes to the late, great Jack Mundey.