On 6 April 2023, Labour MP Ibrahim Omer’s Crimes (Theft by Employer) Amendment Bill 2023 (“the Bill”) was drawn from the ballot. The Bill seeks to amend the Crimes Act 1961 (“the Act”) to capture and class an employer as an offender if it owes employees’ wages, salaries, and/or other monetary entitlements within the employment relationship, but intentionally fails to pay them.
That type of behaviour would already amount to a breach of a number of existing employment-related statutes, including the Holidays Act 2003, Wages Protections Act 1983 and Minimum Wage Act 1983, and can result in penalties and other compliance-focused outcomes. However, this Bill seeks to “up the ante” so that:
· an individual (i.e., natural person) employer, if found guilty, could be liable for a term of imprisonment not exceeding one year and/or a fine not exceeding $5,000; and
· in any other case (i.e., if the employer is an entity), the employer could be liable for a fine not exceeding $30,000. Interestingly, the Bill does not seek to include Directors who knowingly engage in this conduct here, meaning as currently drafted, they could seemingly avoid personal liability.
The rationale? Currently, the Act includes a section that relates to theft by a person in a special relationship, but that scope is not wide enough to cover wage theft by an employer. There has been a push for change to reduce the problem of employers failing to comply with minimum entitlements, particularly for those employees that fall into the immigrant, student, and low-income classes. Unsurprisingly, the Council of Trade Unions is in support of the Bill and is encouraging cross-party support to move the Bill into law. However, only time will tell whether the Bill will make it into law, either in its current form or an amended version.
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