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Starting not before 1 January 2025, intentional underpayments of wages by employers will be a criminal offence.

Employers may commit an offence if they owe money to an employee under the Fair Work Act or an industrial instrument (like an Award or an enterprise agreement), and intentionally engage in conduct that results in a failure to pay on or before the money is due. This can include failure to make required superannuation contributions.

A Voluntary Small Business Wage Compliance Code will be established before the changes take effect, and compliance with this Code means a small business won’t be prosecuted if they underpay their employees.

Companies prosecuted face penalties three-times the amount of the underpayment, if a court can determine it, or $7.825 million, whichever is greater. If the court can’t determine the underpayment, the maximum penalty is $7.825 million.

Individuals can be imprisoned for up to 10 years; be fined either three-times the amount of the underpayment, if the court can determine it, or up to $1.565 million, whichever is greater; or be both fined and imprisoned.

These laws don’t apply to those who unintentionally underpay their employees or pay the wrong amount by mistake.

The Fair Work Ombudsman will, once the offence takes effect in 2025, investigate suspected criminal underpayment offences.

Are you compliant?

Employers and employees should educate themselves on the new Closing Loopholes workplace laws and make sure they are compliant. Most changes started on 15 December 2023, while others start between now and 2025.

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