Labor and the Coalition have said they will address wage theft after the election but some employer groups are pushing back. What is wage theft and where does it happen?
They’re the revelations seemingly without end: from pizzas to posh nosh, from convenience stores and corner cafes to supermarkets, on farms and in franchises across Australia, investigations continue to show that workers’ are being paid less than they are legally entitled to.
You could say they are being underpaid, or ripped off – or that they are the victims of wage theft.
What is wage theft?
Wage theft is a term used by unions, but seeping into the mainstream, to describe the practice of paying workers less than they are entitled to under Australia’s workplace relations system.
Its various forms include underpaying wages, penalty rates, superannuation, overtime, commissions and entitlements such as sick, annual or carers leave; or requiring workers to repay money earned or making unauthorised deductions from employee pay.
Wage theft is distinct from the problems involved in casual and insecure work, the gig economy and the government’s policy to reduce penalty rates, because it involves unlawful activity.
Even so, reports in The Age, The Sydney Morning Herald and elsewhere have shown that, in some sectors of the economy, it is not a fringe activity but a business model.
This has wider implications: if one business is paying less than award wages, it makes it difficult for their competitors to compete and even harder to give their staff a pay rise. That has a wider impact as the Reserve Bank is urging employers to lift wages to contribute to economic growth.
Lower wages also mean less income tax and payroll tax for the government.
Labor and the Coalition have both said they will address wage theft after the election but some employer groups are pushing back.
Where does wage theft occur?
From 7-Eleven to Chatime: franchises and wage theft
The $170-billion franchising industry has been exposed in a series of media investigations as a hotbed of wage underpayment, or wage theft.
Companies including convenience store giant 7-Eleven, Caltex, Domino’s Pizza, Pizza Hut, Retail Food Group – which includes brands such as Brumby’s, Michel’s Patisserie and Donut King – and bubble tea operator Chatime have all been caught underpaying workers.
Franchise business models are characterised by high fees and royalties that can add up to 10 per cent or more of sales, draconian refurbishment costs and policies that include having to source products from the franchisor at prices that are sometimes more expensive than if bought elsewhere. RFG was recently caught selling full-price cakes to franchisees that were near or past their use-by date.
These models pour money into the franchisor’s pockets, but push franchisees to cut corners – including ripping off workers to remain afloat.
To reduce the risk of being caught, the franchisees largely employ foreign workers on visas. These overseas workers often don’t understand their rights or are too afraid to speak up for fear of being deported. The franchising sector employs more than 500,000 workers and accounts for almost 8.9 per cent of GDP.
It has added up to a huge problem, not just in terms of the undermining of the labour market with wages as low as $8 or $10 an hour in cash but the number of franchisees left destitute, having bought the dream of running their own business.
A series of inquiries has resulted in recommendations to clean up franchising and worker exploitation but they are yet to be implemented.
Ripe for exploitation: farms and wage theft
No industry in Australia has worse labour conditions – or more flagrant breaking of labour laws – than Australia’s farms.
Farmers are pressured over prices by the supermarket duopoly, workers have little bargaining power and Australia’s visa system is ripe for exploitation.
Only in recent years has there been a real attempt to organise farm workers through the National Union of Workers (NUW).
The results have been dramatic with dozens of cases emerging of workers paid a pittance and of them being abused (and even assaulted) by unregulated middlemen.
Workers from Vanuatu, for example, were being paid as little as $8 an hour on a Shepparton tomato farm and exposed to a chemical stench that led to nose bleeds, The Age revealed last year.
There have been changes to the law by the Coalition to increase penalties for employers that exploit vulnerable workers. But the problems persist.
The Victorian Farmers Federation and the NUW want visa reform so workers from countries such as Malaysia can have a way to work here legally and to be paid award wages.
From cafes to fine dining: hospitality and wage theft
Hospitality is almost entirely un-unionised (although that is changing a little) and many workers are backpackers, students or young people.
The workplace regulator, the Fair Work Ombudsman, is unable (through lack of resourcing or will) to make much of a difference.
The Ombudsman’s surveys have regularly shown around half of all hospitality businesses are non-compliant with labour laws.
There are a variety of rorts.
In restaurants, these often involve full-time staff being paid just above the award wage but being required to do excessive unpaid overtime. That can push the actual wage down to $15 an hour.
That has occurred most graphically at high-end restaurants where The Sunday Age has exposed some of the biggest names in the industry, including the Neil Perry-fronted Rockpool Dining Group and Heston Blumenthal’s Melbourne restaurant.
Elsewhere, the rorts can involve being paid cash in hand or being paid a flat rate without legal penalty rates, which is commonplace.
The problem is so endemic any change will necessarily be slow and painful.
A greater role for unions to inspect books, a stronger Ombudsman and visa reform would be a start, as would the ability to more easily make legal claims for underpayment – at the moment it is often too costly to make it worthwhile.
Wage theft in supermarket and fast-food chains
One of the biggest underpayment scandals was, on the face of it, perfectly lawful and went on for many years with the complicity of a major union.
An investigation by The Age and The Sydney Morning Herald in 2015-16 found that some of Australia’s biggest companies, in deals with the shop assistants union, had struck deals that traded away penalty rates and other conditions with only small increases in hourly rates.
The dividend for the union was that the employer encouraged union membership, which gave them wealth and power in the Labor party’s internal forums.
It is estimated that at least 250,000 workers were underpaid from the deals struck between big business and the Shop, Distributive & Allied Employees Association.
The deals were (incorrectly) approved by the Fair Work Commission despite a legal requirement they only approve agreements that pass the “better off overall test” (BOOT), which is designed to ensure no worker is paid less than the minimum rates of the award.
In 2016, the full bench of the Fair Work Commission found that a deal involving Coles and the SDA failed the BOOT.
As a result of the Coles decision, employers such as Woolworths, Dominos and KFC have had no choice but to strike deals that pay workers much higher rates. McDonald’s will be next.
Greens MP Adam Bandt has proposed amendments to the Fair Work Act to tighten the BOOT and to ensure there would be no repeat.
What action is being taken?
Outgoing Liberal Industrial Relations Minister Kelly O’Dwyer gave in-principle agreement to a recent report by former consumer watchdog chief Allan Fels recommending criminalising wage theft.
She said the exploitation of workers “harms individuals, undercuts law-abiding employers and reflects poorly on Australia’s international reputation”.
Criminal sanctions would only apply to employers engaging in “clear, deliberate and systemic” wage theft, she said.
The report also recommended tighter regulations for labour hire firms, the companies that act as the middle-man for companies hiring people but which are sometimes involved in exploitation.
Labor’s federal election policy does not mention criminal sanctions, saying only: “Labor has a plan to crack down on wage theft, with significantly higher penalties and better enforcement.”
Employer organisations the Business Council of Australia and the Australian Industry Group both oppose criminal sanctions.
Australian Industry Group chief Innes Willox said: “While, at first glance, this might seem like a good idea, there are many reasons why this is not in anyone’s interests.” It could stifle investment, entrepreneurship and employment, he said, and civil penalties were sufficient.
There is no comprehensive research on the economic or price impact of widespread underpayment, or on what would happen if prices in various sectors were to suddenly reflect the relevant award.
But the prices you pay would most likely need to rise. Meals, for example, would likely increase in price by a few dollars per serve. And to maintain a shop’s profit margin, a standard coffee may need to rise from $4 to more like $4.50.