Powers of the Wage Inspectorate Victoria to enforce the Wage Theft Act 2020 (Vic)

Author: Chao Ni, Principal

From 1 July 2021, employees in Victoria will have available at their disposal an additional method in which they can ‘prosecute’ their employer for underpayment of wages (or entitlements) under the new Wage Theft Act 2020 (Vic) (the Act).

See our earlier article on the new criminal offences that are created by the Act.

FY2021/22 Penalty Update

During FY21/22, contravention of the Act could lead to a fine of up to $218,088 or up to 10 years’ jail for individuals and a fine of up to $1,090,440 for companies.

Wage Inspectorate Victoria

A new Government body called the “Wage Inspectorate Victoria” (WIV) has been set up to enforce the Wage Theft Act.

The functions of the WIV are set out in the Act as follows:

  • To inform, educate and assist people in relation to their rights and obligations under the Act;
  • To promote, monitor and enforce compliance with this Act and the regulations;
  • To investigate the commission or possible commission of employee entitlement offences and related matters;
  • To bring criminal proceedings in relation to alleged employee entitlement offences;
  • To work with the Office of Public Prosecutions in respect of criminal proceedings in relation to alleged employee entitlement offences;
  • To develop and publish guidelines in relation to the Act;
  • To perform functions necessary for the administration of the Act;
  • To provide advice and report to the Minister on the guidelines or any other matter referred to the Wage Inspectorate Victoria by the Minister;
  • To engage in, promote and coordinate the sharing of information with other government agencies and bodies, including agencies and bodies of the government of the Commonwealth or another State or a Territory, for the purposes of the Act;
  • To disseminate information about the duties, rights and obligations of persons under the Act and the regulations;
  • To refer matters, as appropriate, to other bodies;
  • Any other function conferred on the Wage Inspectorate Victoria by this or any the Act.

Investigation Powers of the WIV

It is important for all Victorian employers to know that if an employee raises a complaint against their employer with the WIV, the WIV will likely investigate the complaint by assigning the matter to an Inspector.

The investigative and coercive powers of the WIV (and its Inspectors) include the following:

  • Entering a premises that is a workplace, registered office of a body corporate or a place where employee records are kept:
    • To conduct a search of relevant evidence;
    • To seize, copy, take a relevant extract from a document;
    • To compel a person to answer questions;
    • To compel a person to produce relevant evidence;
    • To make any still or moving image, audio recording or audiovisual recording;
    • To secure relevant evidence against interference;
  • Requiring a person to produce relevant evidence.
  • Requiring a person to attend at a time and place to give evidence, answer questions or produce relevant evidence.

When dealing with the WIV, it is important to know that:

  • The WIV must either obtain a search warrant or issue a notice of entry at least 5 business days prior to entering a premises if consent is withheld by the premises owner.
  • A WIV inspector must produce their identity card for inspection before exercising any powers on a premises or at any time if asked to do so.
  • The WIV must ensure that any person who is compelled to attend:
    • Who is under the age of 18 must be accompanied by a parent/guardian;
    • Who does not have sufficient knowledge of the English language must be accompanied by a competent interpreter;
    • Who has a mental impairment must be accompanied by an independent person;
    • Must be released from attendance if they are under 16 years of age; and
    • May be represented by a lawyer in respect of and during the attendance.
  • The WIV, in carrying out its function or in exercising its powers under the Act, must:
    • Act in a fair, impartial and independent manner; and
    • Act in a manner that is transparent, accountable and consistent; and
    • Act in a consultative and collaborative manner to the extent that is consistent with the carrying out of a function or power.

Commencing Proceedings

If the WIV determines that a person has committed an offence under the Act, it has the power to commence proceedings against that person within 3 years from the date of the alleged offence.

If you have received correspondence from the WIV, we recommend that you seek immediate legal advice from the employment lawyers at MST.  Contact us today by email or by phone +61 3 8540 0200.