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Wage Theft Bill 2020
Introduction Print
EXPLANATORY MEMORANDUM
General
The Wage Theft Bill 2020 creates new employee entitlement offences
comprising wage theft offences and new record keeping offences to capture
employers who falsify or fail to keep records for the purposes of concealing
wage theft.
The Bill also establishes the Wage Inspectorate Victoria as a statutory body
to investigate and enforce the offences.
The key objective of the Bill is to hold employers who withhold employee
entitlements dishonestly to account and protect vulnerable employees from
exploitation.
Clause Notes
Part 1--Preliminary
Clause 1 The main purposes of the Wage Theft Bill 2020 are--
• to create new wage theft offences of dishonestly
withholding employee entitlements, falsifying employee
entitlement records and failing to keep employee
entitlement records; and
• to establish the Wage Inspectorate Victoria as a
statutory body to investigate and enforce the offences;
and
• to make consequential and other amendments.
Clause 2 is the commencement provision, which provides for the Bill to
come into operation on a day or days to be proclaimed, or on
1 July 2021 if not proclaimed before that date. The default
591084 1 BILL LA INTRODUCTION 18/3/2020
commencement date is intended to allow for a reasonable
implementation period for the establishment of the Wage
Inspectorate Victoria of approximately 12 months from the
estimated date of passage of the Bill.
Clause 3 sets out various definitions for the Bill. These definitions are
used in the new employee entitlement offences.
associate is defined to mean employee or agent of a body
corporate acting within the actual or apparent scope of the
person's employment or authority. This provision only relates to
a body corporate but given the definition of the Crown, also
applies to the Crown as an employer. This definition also
captures officers who are also employees of a body corporate.
board of directors means a body exercising executive authority
of the body corporate. This could be in any form and use any
name. This provision only relates to a body corporate but given
the definition of the Crown, also applies to the Crown as an
employer.
Commissioner is defined to mean the Commissioner of the Wage
Inspectorate Victoria appointed under the Bill.
corporate culture means an attitude, policy, rule, course of
conduct or practice existing within the employer generally or in
the part of the employer in which the relevant conduct is carried
out or intention is formed. This definition applies to employers
other than a natural person in relation to clauses 6(3)(c), 7(4)(c),
8(4)(c), 11(2)(a)(ii) and 12.
employee is defined to mean a person who is or has been
employed by an employer. The definition relies on the definition
of employer which is defined to mean a natural person, body
corporate, which includes the Crown, partnership, unincorporated
association or other entity that employs or has employed another
person. When considering whether an employer employs a
person, the court will consider a multifactor test as to whether
there is an employment relationship.
employee entitlement means an amount payable or any other
benefit payable or attributable by an employer to or in respect of
an employee and includes wages, salary, allowances, gratuities
and the attribution of annual leave, long service leave, meal
breaks and superannuation. The amount payable or attributable
is in accordance with the relevant laws, contracts and agreements.
2
The amount payable or attributed cannot be reduced below the
amount or benefit required by the relevant laws, and is to be paid
or attributed in accordance with the contracted or agreed amount
if it is above the amount set in relevant laws.
employee entitlement offence is defined to mean the offences in
clauses 6(1) and 6(7) (dishonest withholding of employee
entitlements), clauses 7(1) and 7(2) (falsification of employee
entitlement record) and clauses 8(1) and 8(2) (failure to keep
employee entitlement record). This definition also includes
offences from the Crimes Act 1958, including sections 321
(conspiracy to commit an offence), 321G (incitement), 321M
(attempt) and 257(1) (intimidation or reprisals relating to
involvement in criminal investigation or criminal proceeding) in
relation to the offences created in Part 2 of the Bill.
employee entitlement record means a record of an employee
entitlement as defined in clause 3 of the Bill.
employer is defined as a natural person, body corporate,
partnership, unincorporated association or other entity that
employs or has employed another person. When considering
whether an employer employs a person, the court will consider a
multifactor test as to whether there is an employment
relationship.
inspector is defined to mean an inspector appointed under the
Bill.
officer for a corporation means an officer within the meaning of
section 9 of the Corporations Act 2001 of the Commonwealth,
which includes a director or secretary of the corporation. Officer
for other bodies corporate (which includes the Crown) means a
member of the board of directors. Officer for a partnership
(other than an incorporated partnership) means a partner in the
partnership. Officer for unincorporated associations means an
office holder of the unincorporated association. Officer for
entities that are not a corporation or a natural person includes a
person who makes, or participates in making, decisions that
affect the whole, or a substantial part, of the business of the entity
or a person who has the capacity to affect significantly the
entity's financial standing.
Office of Public Prosecutions means the Office of Public
Prosecutions established under the Public Prosecutions
Act 1994.
3
privilege means any privilege that a person is entitled to claim in
any proceedings before a court or tribunal (other than the
privilege provided for in Division 1C of Part 3.10 of the
Evidence Act 2008) or public interest immunity.
registered office has the meaning given by section 9 of the
Corporations Act 2001 of the Commonwealth in relation to a
body corporate.
undertaking means an undertaking under this Bill.
Victorian Inspectorate is defined to mean the Victorian
Inspectorate established under the Victorian Inspectorate
Act 2011.
Wage Inspectorate Victoria is defined to mean the Wage
Inspectorate Victoria established under this Bill.
withhold is defined to mean fail to pay, distribute or attribute or
otherwise deprive, whether directly or indirectly. The definition
is intended to capture a broad range of circumstances, including
failing to pay, distribute or attribute to a third party, making an
unlawful deduction or requiring the payment of an unlawful fee
or other charge, and requiring the payment of an amount to the
employer from the employee entitlements.
Examples of conduct that constitute withholding include--
• An employee who is required to pay back a portion of
their wages to their employer (cash back).
• An employer who refuses to pay annual leave accrued
by an employee following a request in accordance with
the terms of their employment contract.
• An employer who pays an employee the base rate but
does not pay overtime when the employee has worked
the additional time.
• An employer who misrepresents an employment
relationship as an independent contract to avoid paying
the entitlements owed ("sham contracting").
workplace is defined to include residential premises where work
is carried out, but does not include a part of any premises that is
the domestic home of a person. The definition is intended to be
inclusive which covers a business which may be carried out in
part of a domestic home.
4
Subclause (2) clarifies that police officers, police reservists and
protective services officers within the meaning of the Victoria
Police Act 2013 are employed by the Crown under a contract of
service, and despite any other law, the contract of service and
employment relationship is taken to exist between the Crown and
these persons.
Subclause (3) provides that for the purpose of this Bill, an owner
or occupier of premises includes a person authorised by the
owner or occupier to receive correspondence directed to the
owner or occupier, and a person who apparently represents the
owner or occupier.
Clause 4 provides that the Crown is bound by the Bill in right of the State
of Victoria and in all its other capacities to the extent that the
legislative power of the Parliament permits. It also confirms that
the Crown is a body corporate for the purposes of this Bill. This
ensures that the Crown can be held liable as an employer for
offences committed under the Bill.
Clause 5 sets out the jurisdictional application of the Bill and states that
the Bill applies to entitlements irrespective of when they accrue.
The following subclauses ensure that Victoria will be able to
prosecute employee entitlement offences as long as at least one
party or circumstance is located in Victoria.
Subclause (1)(a) provides that the Bill applies to employee
entitlements for or in relation to services performed by an
employee wholly in Victoria.
Subclause (1)(b) provides that the Bill applies to employee
entitlements for or in relation to services performed by an
employee in 2 or more jurisdictions, provided that one of those
jurisdictions is Australian and one of the following conditions is
met--
(i) the employee is based in Victoria; or
(ii) the employer is based in Victoria; or
(iii) the employee entitlements are paid, payable or
attributable in Victoria; or
(iv) the employee entitlements are paid, payable or
attributable in an Australian State or Territory for
services performed mainly in Victoria.
5
Subclause (1)(c) provides that the Bill applies to employee
entitlements for or in relation to services performed wholly
outside Australia if the employee entitlements are paid, payable
or attributable in Victoria.
Subclause (2) provides that any reference to "Australian
jurisdiction" in subclause (1) means an Australian State or
Territory.
Subclause (3) provides that the Bill applies to employee
entitlements irrespective of when an entitlement accrues or has
accrued. This does not make the offence retrospective but rather
clarifies that the entitlement can arise or accrue before the
commencement of the Bill. The withholding of the entitlement
has to occur after the commencement of the Bill.
Part 2--Wage theft offences
Clause 6 creates offences of dishonest withholding of employee
entitlements for the employer and officers of the employer.
Subclause (1) provides that an employer must not dishonestly
withhold an employee entitlement owed by the employer to the
employee (either wholly or in part). The subclause also provides
that the employer must not dishonestly authorise or permit
(either expressly or impliedly) another person to withhold an
employee entitlement owed by the employer to the employee
(either wholly or in part). Examples of withholding are provided
for in the definition of withhold. It is intended that "part of an
employee entitlement" covers situations where an employee is
paid some but not all of their entitlement.
The maximum penalty for this offence is 6000 penalty units for a
body corporate or 1200 penalty units and 10 years imprisonment
(level 5) for an individual.
Subclause (2) provides that when determining whether the
withholding is dishonest, the employee's consent is irrelevant if
the entitlement is reduced to less than the minimum amount or
benefit required under the relevant laws. This is intended to
provide that an employer's conduct is still dishonest in
circumstances where an employee has been induced to accept
less than the minimum amount or benefit required under the
relevant law through scenarios such as their lack of bargaining
power or threats.
6
Subclause (3) provides that authorisation or permission for
another person to withhold the employee entitlement in subclause
(1)(b) can be established by proving that--
(a) the employer or an officer of the employer expressly or
impliedly gave the authorisation or permission;
(b) the board of directors expressly or impliedly gave the
authorisation or permission (for bodies corporate); or
(c) a corporate culture existed that directed, encouraged,
tolerated or led to the relevant conduct being carried out
(for employers that are not a natural person).
Subclause (4) provides a due diligence defence for employers if
the employer can prove that it exercised due diligence to prevent
the authorisation or permission being given in subclause (3)(a).
Subclause (5) provides that it is a defence to the offence in
subclause (1) if the employer proves that it exercised due
diligence to pay or attribute the employee entitlements to the
employee. The employer must have exercised due diligence
before the alleged offence. It is intended that when exercising
due diligence, an employer took reasonable steps that are
reflective of the size and nature of the employer. A higher
standard will be applied when considering what is reasonable for
a large body corporate than for a small business.
Subclause (6) provides that for the purposes of subclause (5),
evidence that the employer failed to comply with the
requirements of a regulator is evidence that the employer had not
taken all reasonable steps in exercising due diligence and
therefore it is unlikely the defence will be made out on the
balance of probabilities. It is intended that a regulator include
any employee entitlement regulator or body.
Subclause (7) provides that an officer of an employer must not
dishonestly withhold an employee entitlement owed by the
employer to the employee (either wholly or in part). The
subclause also provides that the officer must not dishonestly
authorise or permit (either expressly or impliedly) another person
to withhold an employee entitlement owed by the employer to the
employee (either wholly or in part). Examples of withholding are
provided for in the definition of withhold.
The maximum penalty for this offence is 1200 penalty units and
10 years imprisonment (level 5).
7
The clause is intended to provide an offence where officers are
directly involved in the withholding of entitlements and is
distinct from clause 13 where liability is attributed to officers.
Subclause (8) provides that an employee's consent to the
withholding in subclause (7) is irrelevant to determining whether
the withholding is dishonest if it reduces the employee
entitlement to less than the minimum amount or benefit required
under the relevant laws. This is intended to provide that an
officer's conduct is still dishonest in circumstances where an
employee has been induced to accept less than the minimum
amount or benefit required under the relevant law through
scenarios such as their lack of bargaining power or threats.
Subclause (9) clarifies how an officer's authorisation or
permission in subclause (7)(b) can be proved, which includes that
the officer directed, encouraged or tolerated the relevant conduct
being carried out.
Subclause (10) provides that it is a defence to the offence in
subclause (7) if the officer proves that it exercised due diligence
to pay or attribute the employee entitlements to the employee.
The officer must have exercised due diligence before the alleged
offence.
Subclause (11) provides a definition for dishonesty for clause 6.
dishonest means dishonest to the standards of a reasonable
person. This is to be an objective assessment and displaces the
subjective assessment of the accused's state of mind. It is also
intended that the assessment of dishonesty go beyond
intentionally dishonest conduct and for recklessness to be
captured as part of a reasonable person's understanding of
dishonesty. Consideration should be given to what a reasonable
person would have known, or was reckless to, in the
circumstances.
Clause 7 creates offences of falsification of an employee entitlement
record for the employer and officers of the employer.
Subclause (1) provides that an employer must not falsify an
employee entitlement record of an employee with a view to
dishonestly obtaining a financial advantage for the employer or
another person, or preventing the exposure of a financial
advantage obtained by the employer or another person.
8
An employer must also not authorise or permit another person
(either expressly or impliedly) to falsify an employee entitlement
record of an employee with a view to dishonestly obtaining a
financial advantage for the employer or another person, or
preventing the exposure of a financial advantage obtained by the
employer or another person.
The maximum penalty for this offence is 6000 penalty units for a
body corporate or 1200 penalty units and 10 years imprisonment
(level 5) for an individual.
Subclause (2) provides that an officer of an employer must not
falsify an employee entitlement record of an employee with a
view to dishonestly obtaining a financial advantage for the
employer or another person, or preventing the exposure of a
financial advantage obtained by the employer or another person.
An officer must also not authorise or permit another person
(either expressly or impliedly) to falsify an employee entitlement
record of an employee with a view to dishonestly obtaining a
financial advantage for the employer or another person, or
preventing the exposure of a financial advantage obtained by the
employer or another person.
The maximum penalty for this offence is 1200 penalty units and
10 years imprisonment (level 5).
The clause is intended to provide an offence where officers are
directly involved in the withholding of entitlements and is
distinct from clause 13 where liability is attributed to officers.
Examples of falsification of an employee entitlement record
are--
• Where an officer asks payroll staff to alter the number
of hours an employee has worked on their timesheet,
with a view to dishonestly obtaining a financial
advantage.
• An employer alters an employee's payslip to provide a
misleading rate of pay, with a view to dishonestly
obtaining a financial advantage.
Subclause (3) provides when determining whether obtaining a
financial advantage is dishonest, the employee's consent is
irrelevant if the entitlement is reduced to less than the minimum
amount or benefit required under the relevant laws.
9
Subclause (4) provides that for the purposes of the offence in
subclause (1) an employer's authorisation or permission for
another person to falsify employee entitlement records can be
established by proving that--
(a) the employer or an officer expressly or impliedly gave
the authorisation or permission;
(b) the board of directors expressly or impliedly gave the
authorisation or permission (for bodies corporate); or
(c) a corporate culture existed that directed, encouraged,
tolerated or led to the relevant conduct being carried out
(for employers that are not a natural person).
Subclause (5) provides a due diligence defence for employers if
the employer can prove that it exercised due diligence to prevent
the authorisation or permission being given in subclause (4)(a).
Subclause (6) clarifies how an officer's authorisation or
permission in subclause (2) can be proved, which includes that
the officer directed, encouraged or tolerated the relevant conduct
being carried out.
Subclause (7) provides definitions for dishonest and falsify for
clause 7.
dishonest means dishonest according to the standards of a
reasonable person. This is to be an objective assessment and
displaces the subjective assessment of the accused's state of
mind. It is also intended that the assessment of dishonesty go
beyond intentionally dishonest conduct and for recklessness to be
captured as part of a reasonable person's understanding of
dishonesty. Consideration should be given to what a reasonable
person would have known, or was reckless to, in the
circumstances.
falsify includes to produce or make a record, copy a record, alter
a record, or provide information that is (or causes the record to
be) misleading, false or deceptive in material particular.
Clause 8 creates offences of failure to keep an employee entitlement
record for the employer and an officer of the employer.
Subclause (1) provides that an employer must not fail to keep an
employee entitlement record of an employee with a view to
dishonestly obtaining a financial advantage for the employer or
10
another person, or preventing the exposure of a financial
advantage obtained by the employer or another person.
An employer must also not authorise or permit another person
(either expressly or impliedly) to fail to keep an employee
entitlement record of an employee with a view to dishonestly
obtaining a financial advantage for the employer or another
person, or preventing the exposure of a financial advantage
obtained by the employer or another person.
The maximum penalty for this offence is 6000 penalty units for a
body corporate or 1200 penalty units and 10 years imprisonment
(level 5) for an individual.
Subclause (2) provides that an officer of an employer must not
fail to keep an employee entitlement record of an employee with
a view to dishonestly obtaining a financial advantage for the
employer or another person, or preventing the exposure of a
financial advantage obtained by the employer or another person.
An officer must also not authorise or permit another person
(either expressly or impliedly) to fail to keep an employee
entitlement record of an employee with a view to dishonestly
obtaining a financial advantage for the employer or another
person, or preventing the exposure of a financial advantage
obtained by the employer or another person.
The maximum penalty for this offence is 1200 penalty units and
10 years imprisonment (level 5).
The clause is intended to provide an offence where officers are
directly involved in the withholding of entitlements and is
distinct from clause 13 where liability is attributed to officers.
Examples of a failure to keep an employee entitlement record
are--
• Where the employer pays the employee for work
performed but does not keep a record of the hours of
work performed or the amount paid to the employee,
with a view to dishonestly obtaining a financial
advantage.
• An employer paying the employee for set shift hours
and recording these hours but not recording the
additional hours that the employee works as overtime,
with a view to dishonestly obtaining a financial
11
advantage. This could also be an example of falsifying
an employee entitlement if the employer requires the
employee to mis-record their hours.
Subclause (3) provides when determining whether obtaining a
financial advantage is dishonest, the employee's consent is
irrelevant if the entitlement is reduced to less than the minimum
amount or benefit required under the relevant laws.
Subclause (4) provides that for the purposes of the offence in
subclause (1) an employer's authorisation or permission for
another person to fail to keep an employee entitlement record can
be established by proving that--
(a) the employer or an officer expressly or impliedly gave
the authorisation or permission;
(b) the board of directors expressly or impliedly gave the
authorisation or permission (for bodies corporate); or
(c) a corporate culture existed that directed, encouraged,
tolerated or led to the relevant conduct being carried out
(for employers that are not a natural person).
Subclause (5) provides a due diligence defence for employers if
the employer can prove that it exercised due diligence to prevent
the authorisation or permission being given in subclause (4)(a).
Subclause (6) clarifies how an officer's authorisation or
permission in subclause (2) can be proved, which includes that
the officer directed, encouraged or tolerated the relevant conduct
being carried out.
Subclause (7) provides definitions of dishonest and fail to keep a
record for clause 8.
dishonest means dishonest to the standards of a reasonable
person. This is to be an objective assessment and displaces the
subjective assessment of the accused's state of mind. It is also
intended that the assessment of dishonesty go beyond
intentionally dishonest conduct and for recklessness to be
captured as part of a reasonable person's understanding of
dishonesty. Consideration should be given to what a reasonable
person would have known, or was reckless to, in the
circumstances.
fail to keep a record includes not making or destroying, defacing
or concealing a record.
12
Clause 9 clarifies how complicity will operate in respect of the employee
entitlement offences. Subdivision (1) of Division 1 of Part II of
the Crimes Act 1958 (complicity provisions) does not apply to a
person who acts under the direction of the employer and is not an
officer of the employer. It is not intended that employees
following directions of officers (such as payroll staff) be
considered complicit to the employer's or officer's offending.
It is otherwise intended that Part II, Division 1 of the Crimes
Act 1958 will apply to the employee entitlement offences. A
person who assists, encourages or directs the commission of the
offence is taken to have committed the offence. For example,
franchisors that assist, encourage or direct franchisees to
dishonestly withhold employee entitlements could be found
guilty of an offence.
It is not intended that victims of wage theft be liable for the theft
of their own employee entitlements or falsification of their own
records. Under section 324(3) of the Crimes Act 1958, a person
is excluded from being found to be complicit where, as a matter
of policy, the offence is intended to benefit or protect that person.
Clause 10 provides that the body corporate is liable for officers' offending.
If an officer of the body corporate (which includes the Crown
through clause 4) commits an offence, the body corporate is also
taken to have committed the offence and may be prosecuted and
found guilty of the offence, whether or not the officer is
prosecuted or found guilty of the offence.
Clause 11 creates corporate responsibility for the employee entitlement
offences by attributing conduct, knowledge, intention and belief
of officers and associates to the body corporate.
Subclause (1) provides for how the conduct and state of mind of
officers and the board of directors is to be attributed to the body
corporate for the purposes of an employee entitlement offence.
An officer's conduct must be attributed to the body corporate if
the officer is acting within the actual or apparent scope of the
officer's employment or within their actual or apparent authority,
and an officer's knowledge, intention or belief must be attributed
to the body corporate. The knowledge or intention of, or a belief
held by, a board of directors must also be attributed to the body
corporate.
13
Subclause (2) provides for how an associate's conduct and state
of mind is to be attributed to the body corporate. An associate's
conduct must be attributed to the body corporate if an officer or
the board of directors expressly or impliedly authorised or
permitted the relevant conduct, or if a corporate culture existed
within the body corporate that directed, encouraged, tolerated or
led to the relevant conduct.
An associate's knowledge, intention or belief must be attributed
to the body corporate if a corporate culture existed within the
body corporate that directed, encouraged, tolerated or led to the
acquisition of the knowledge or the formation of that intention or
belief.
Subclause (3) provides that when attributing the conduct and
state of mind to a body corporate, the elements of an employee
entitlement offence do not have to be supplied by the same
officer or associate. For example, an officer could have the
dishonest state of mind and an associate could carry out the
conduct as authorised and the body corporate can be found to
have committed the offence.
Subclause (4) provides that engage in conduct includes a failure
or refusal to engage in conduct.
Clause 12 provides for factors relevant to whether a corporate culture
existed within a body corporate, including--
(a) whether authority to commit the offence or an offence
of a similar character had been given by an officer; and
(b) whether an associate who carried out the relevant
conduct or formed the relevant intention believed on
reasonable grounds, or entertained a reasonable
expectation, that an officer would have authorised or
permitted the relevant conduct being carried out with
the relevant intention.
Clause 13 creates officers' liability for the employee entitlement offences.
Subclause (1) provides that if a body corporate commits an
employee entitlement offence, all officers of the body corporate
are taken to have also committed the offence and may be
prosecuted and found guilty of the offence, regardless of whether
the body corporate has been prosecuted or found guilty of the
offence.
14
Subclause (2) provides a defence to the offence in subclause (1)
if the officer can prove that the officer exercised due diligence to
prevent the commission of the offence by the body corporate.
Subclause (3) provides that an officer is not liable to be sentenced
to imprisonment if they are convicted of an employee entitlement
offence based on subclause (1).
Clause 14 provides for how partnerships and partners commit the offences.
Subclause (1) provides that for the purposes of this Bill, if an
employer that is a partnership commits an employee entitlement
offence, the employer is taken to be each partner in the
partnership. For a partnership in which any partner has limited
liability under law, for example a silent partner, the employer is
taken to be each partner in the partnership whose liability is not
so limited. This clause assigns liability to the partners where the
partnership is not a legal entity, and therefore cannot be held
liable. It is intended that individual partners are liable for the
offending of the partnership as the employer.
Subclause (2) provides that if a partner commits an employee
entitlement offence (other than because of subclause (1)) in the
course of the activities of the partnership, each other partner in
the partnership also commits the offence. For a partnership in
which any partner has limited liability under law, for example a
silent partner, each other partner in the partnership whose
liability is not so limited also commits the offence.
Subclause (3) provides a defence for the partner if the partner can
prove that they exercised due diligence to avoid the commission
of the offence.
Subclause (4) provides that a partner is not liable to be sentenced
to imprisonment if they are convicted of an employee entitlement
offence based solely on this clause. For example, a partner will
be not liable to imprisonment if they are convicted based on the
attribution of liability from the partnership or other partners.
Subclause (5) clarifies that this clause does not apply in relation
to incorporated partnerships or partnerships that are a separate
legal entity.
15
Clause 15 provides for how unincorporated associations and officers
commit the offences.
Subclause (1) provides that for the purposes of this Bill, if an
employer that is an unincorporated association commits an
employee entitlement offence, the employer is taken to be each
member of the committee of management of the association. It is
intended that each member of the committee of management of
the association is liable for the offending of the unincorporated
association.
Subclause (2) provides that if an officer of an unincorporated
association commits an employee entitlement offence in the
course of the activities of the unincorporated association, each
other officer at the time of the commission of the offence is taken
to have committed the offence. It is intended that each officer of
an unincorporated association is liable for offences committed by
other officers.
Subclause (3) provides a defence for a person if they can prove
that they exercised due diligence to avoid the commission of the
offence.
Subclause (4) provides that a person is not liable to be sentenced
to imprisonment if they are convicted of an employee entitlement
offence based solely on this clause. For example, an officer will
be not liable to imprisonment if they are convicted based on the
attribution of liability from other officers within the
unincorporated association.
Clause 16 clarifies the responsible agency for the Crown. If a proceeding is
brought against the Crown for an employee entitlement offence,
the responsible agency may be specified in any document relating
to the proceeding. The responsible agency is entitled to act in a
proceeding against the Crown, and the procedural rights and
obligations of the Crown as an accused are conferred or imposed
on the responsible agency. The prosecutor may change the
responsible agency during the proceeding with leave of the court.
A responsible agency is the agency of the Crown whose acts or
omissions are alleged to constitute the offence, the successor to
the agency if the agency ceases to exist or, if there is no clear
successor, the agency that the court declares as the responsible
agency.
16
Clause 17 provides for proceedings against successors to public bodies.
Proceedings for an employee entitlement offence may be
continued or commenced against the successor of a public body.
Public bodies include a body corporate representing the Crown, a
state owned enterprise or reorganising body (within the meaning
of the State Owned Enterprises Act 1992), a Council
(within the meaning of the Local Government Act 2020) or a
public entity (within the meaning of the Public Administration
Act 2004).
Clause 18 clarifies that the maximum fine the Magistrates' Court can
impose for a body corporate under clauses 6(1), 7(1) and 8(1), if
determined summarily, is 2500 penalty units.
Part 3--Wage Inspectorate Victoria and Commissioner
Clause 19 sets out the establishment of the Wage Inspectorate Victoria.
Clause 20 sets out the functions of the Wage Inspectorate Victoria which
are--
• to inform, educate and assist people in relation to their
rights and obligations under this Bill;
• to promote, monitor and enforce compliance with this
Bill and the regulations;
• to investigate the commission or possible commission
of employee entitlement offence 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;
• to develop and publish guidelines in relation to this Bill;
• to perform the functions necessary for the
administration of this Bill;
• to provide advice and report to the Minister on the
guidelines or any other matter referred to the Wage
Inspectorate Victoria by the Minister;
17
• 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
purposed of this Bill;
• to disseminate information about the duties, rights and
obligations of persons under this Bill and the
regulations;
• to refer matters, as appropriate, to other bodies;
• any other function conferred on the Wage Inspectorate
Victoria by this Bill or any other Act.
Subclause (2) provides that the Wage Inspectorate Victoria has
all the powers that are necessary or convenient to perform its
functions under this Bill or any other Act.
Clause 21 empowers the Wage Inspectorate Victoria to do all things that are
necessary or convenient to be done for or in connection with the
performance of its duties and functions.
Subclause (2) provides that without limiting subclause (1), the
Wage Inspectorate Victoria has and may exercise the functions
and powers of an inspector. Inspectors will be appointed by the
Wage Inspectorate Victoria and this ensures that inspector
powers are able to be delegated.
Clause 22 sets out the guiding principles of the Wage Inspectorate Victoria,
which are--
• to 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.
Clause 23 provides for the staff of the Wage Inspectorate Victoria.
Subclause (1) provides that the Wage Inspectorate Victoria may
employ under Part 3 of the Public Administration Act 2004 any
employees that are necessary for the administration of this Bill or
to enable the Wage Inspectorate Victoria to perform its functions
and exercise its powers.
18
Subclause (2) provides for the Wage Inspectorate Victoria to
engage consultants, contractors or agents for or in connection
with the performance of its functions.
Subclause (3) empowers the Wage Inspectorate Victoria to enter
into an agreement or arrangement for the use of the services of
any person with suitable qualifications or experience to assist the
Wage Inspectorate Victoria in the performance of its functions
and powers under this Bill.
Subclause (4) clarifies that an agreement or arrangement made
under subclause (3) may be on any terms and conditions that the
Wage Inspectorate Victoria is satisfied are appropriate.
Clause 24 sets out that the Minister may give general written directions to
the Wage Inspectorate Victoria about the performance of its
functions except in relation to--
• the investigation or prosecution of an employee
entitlement offence;
• the employment or engagement (however described)
of employees, consultants or under subclause 23(1),
(2), (3).
Subclause (2) provides that the Minister, in writing, may direct
the Wage Inspectorate to give the Minister reports on specified
matters relating to the Wage Inspectorate Victoria's functions.
Subclause (3) provides that the Wage Inspectorate Victoria must
comply with a direction under subclause (2) within a reasonable
time.
Division 2--Commissioner of the Wage Inspectorate Victoria
Clause 25 provides for the appointment of a Commissioner of the Wage
Inspectorate Victoria.
Subclause (2) provides that the Governor in Council, on the
recommendation of the Minister, may by instrument appoint a
person to be the Commissioner.
Clause 26 sets out the terms and conditions for the appointment of the
Commissioner which are--
• The Commissioner is to be appointed for the period, not
exceeding 5 years, set out in the instrument of
appointment; and
19
• They are eligible for reappointment; and
• They may be appointed on a full-time or part-time basis;
and
• Holds office on the terms and conditions that are
specified in the instrument of appointment.
Subclause (2) provides that the Commissioner is entitled to
receive the remuneration and allowance that are fixed from time
to time by the Governor in Council.
Clause 27 sets out the procedure for vacancy and resignation of the
Commissioner. The Commissioner ceases to hold office if the
Commissioner--
• resigns by writing signed and delivered to the Governor;
or
• becomes insolvent under administration; or
• is convicted of an indictable offence or of an offence
that, if committed in Victoria, would be an indictable
offence; or
• nominates for election or is elected to the Parliament of
Victoria or of the Commonwealth or of another State or
a Territory, or a Council; or
• is removed from office under clause 28.
Clause 28 sets out the procedure for removal of the Commissioner from
office. The Governor in Council may remove the Commissioner
from office on any of the following grounds--
• neglect of the Commissioner in carrying out the duties
of the office;
• misconduct by the Commissioner in carrying out the
duties of the office;
• inability of the Commissioner to perform the duties of
the office;
20
• a conflict of interest of the Commissioner when carrying
out the duties of the office;
• the Commissioner engaging in paid employment outside
of the duties of the office without the consent of the
Minister.
Clause 29 allows for the appointment and removal of an acting
Commissioner.
Subclause (1) provides that the Governor in Council, on the
recommendation of the Minister, may appoint a person to act as
the Commissioner--
• during a vacancy in the office of the Commissioner; or
• during any period, not exceeding 12 months, when the
Commissioner is absent or is for any other reason
unable to perform the duties of the office.
Subclause (2) provides that a person appointed under subclause
(1) is entitled to the remuneration and allowance that are
determined from time to time by the Governor in Council.
Subclause (3) provides that while a person is acting in the office
of the Commissioner the person has all the powers and may
perform all the functions and duties of the Commissioner under
this Bill.
Subclause (4) provides that the Governor in Council, on the
recommendation of the Minister, may revoke an appointment
under subclause (1) at any time.
Clause 30 sets out the functions and powers of the Commissioner.
Subclause (1) provides that the Commissioner--
• has all the duties, functions and powers of the Wage
Inspectorate Victoria;
• has any other duties, functions and powers conferred on
the Commissioner under this Bill or any other Act.
Subclause (2) provides that the Commissioner--
• is responsible for undertaking the strategic leadership of
the Wage Inspectorate Victoria for the purposes of this
Bill;
21
• is the public service body Head of the Wage
Inspectorate Victoria for the purposes of section 16 of
the Public Administration Act 2004.
Subclause (3) clarifies that all acts and things done by the
Commissioner in the name of or on behalf of the Wage
Inspectorate Victoria are taken to have been done by the Wage
Inspectorate Victoria.
Clause 31 provides that the Commissioner may delegate, by instrument, any
power of the Commissioner under this Bill, including a function
or power referred to in clause 30, other than this power of
delegation, to any person referred to in clause 23.
Part 4--Investigations by the Wage Inspectorate Victoria
Division 1--Investigating employee entitlement offences
Clause 32 provides that the Wage Inspectorate Victoria may investigate
possible employee entitlement offences.
Subclause (1) provides that the Wage Inspectorate Victoria may
investigate the commission or possible commission of one or
more employee entitlement offences and any matter relating to
the commission or possible commission of one or more employee
entitlement offences.
Subclause (2) provides that the Wage Inspectorate Victoria may
discontinue investigating the commission or possible commission
of an employee entitlement offence at any time.
Subclause (3) provides that the Wage Inspectorate Victoria may
commence proceedings for an employee entitlement offence if
the Wage Inspectorate Victoria considers it desirable to do so.
Subclause (4) provides that The Wage Inspectorate Victoria must
commence proceedings for an employee entitlement offence
within 3 years of the date on which the offence is alleged to have
been committed.
Subclause (5) clarifies that nothing in this clause requires the
Wage Inspectorate Victoria to investigate the commission or
possible commission of an employee entitlement offence.
22
Division 2--Inspectors
Clause 33 sets out who can be appointed an inspector.
Subclause (1) provides that the Wage Inspectorate Victoria may,
by instrument, appoint a person employed under Part 3 of the
Public Administration Act 2004 to be an inspector for the
purposes of this Bill.
Subclause (2) provides that the Wage Inspectorate Victoria must
give each inspector a certificate of appointment signed by the
Commissioner.
Subclause (3) provides that a certificate of appointment given to
an inspector in accordance with subclause (2) is conclusive proof
of the valid appointment of the inspector under this clause.
Subclause (4) maintains that the Wage Inspectorate Victoria, by
instrument, may revoke an appointment under subclause (1) at
any time.
Clause 34 provides for identity cards of inspectors. Subclause (1) requires
the Wage Inspectorate Victoria to issue an identity card to each
inspector containing a photograph of the inspector and the
inspector's signature.
Subclause (2) stipulates that an inspector must--
• carry the inspector's identity card when performing
functions or exercising powers of an inspector; and
• produce the inspector's identity card for inspection--
• before exercising a power under this Part, other
than a power exercised by way of post; and
• at any time during the exercise of a power under
this Part, if asked to do so.
The maximum penalty for non-compliance is 12 penalty units.
Subclause (3) provides that if a person to whom an identity card
has been issued ceases to be an inspector, the person must return
the identity card to the Wage Inspectorate Victoria within
14 days of ceasing to be an inspector unless the person
unintentionally lost or destroyed the identity card or the identity
card was destroyed by another person. Failure to do so may incur
12 penalty units.
23
Clause 35 provides that inspectors are subject to the Wage Inspectorate
Victoria's directions.
Subclause (1) provides that an inspector is subject to the Wage
Inspectorate Victoria's directions in the performance of their
functions or exercise of their powers under this Bill or the
regulations.
Subclause (2) clarifies that a direction under subclause (1) may
be of a general nature or may relate to a specified matter or
specified class of matter.
Clause 36 provides that inspectors may perform functions and exercise
powers for certain purposes. Under this Part, an inspector may
exercise powers under for a purpose relating to the investigation
of the commission or possible commission of an employee
entitlement offence.
Clause 37 clarifies that inspectors may exercise powers of entry, search and
seizure and powers to require a person to answer questions or
produce documents only at certain premises being--
• a workplace; or
• the registered office of a body corporate; or
• premises at which work is carried out (including a
residential address if work is being carried out at that
location), or records are kept, which the inspector
reasonably believes may be relevant to the commission
or possible commission of an employee entitlement
offence. This acknowledges that employee records can
be kept at premises outside the workplace or registered
business office and allows the Wage Inspectorate
Victoria to require the production of documents from
any premises where those records are kept provided
they may be relevant to the commission or possible
commission of an employee entitlement offence.
Division 3--Entry, search and seizure with consent
Clause 38 sets out the procedure for entry, search and seizure with consent.
Subclause (1) specifies that an inspector, with the consent of the
owner or occupier of premises, may do one or more of the
following--
24
• enter and search the premises;
• examine and seize any document or other thing found
on the premises which the inspector believes on
reasonable grounds to be connected with the
commission or possible commission of an employee
entitlement offence;
• inspect and make copies of, or take extracts from, any
document found on the premises;
• make any still or moving image, audio recording or
audiovisual recording.
Subclause (2) provides that an inspector must not enter and
search any premises with the consent of the owner or occupier
unless, before the owner or occupier consents to that entry, the
inspector has informed the owner or occupier of the purpose of
the search and that--
• the owner or occupier may refuse to give consent to the
entry and search or to the seizure of any document or
other thing found during the search; and
• the owner or occupier may refuse to consent to the
taking of any copy of, or extract from, a document
found on the premises during the search; and
• any document or other thing seized or taken during the
search with the consent of the owner or occupier may be
used in evidence in proceedings.
Subclause (3) provides that if an owner or occupier consents to
an entry and search, the inspector who requested consent must,
before entering the premises, ask the owner or occupier to sign an
acknowledgement stating the inspector has complied with
subclause (2).
Subclause (4) provides that if an owner or occupier consents to
the seizure or taking of any document or other thing during a
search under this clause, the inspector must, before seizing or
taking the document or other thing, ask the owner or occupier to
sign an acknowledgement stating--
• that the owner or occupier has consented to the seizure
or taking of the document or other thing; and
• the date and time that the owner or occupier consented.
25
Subclause (5) provides that an owner or occupier who signs an
acknowledgement must be given a copy of the signed
acknowledgement before the inspector leaves the premises.
Clause 39 provides that an inspector may enter and inspect any part of a
premises that at the time of entry and inspection is open to the
public. This may include, for example, a public event.
Division 4--Entry, search and seizure without consent or warrant
Clause 40 provides that inspectors have limited powers of entry, search and
seizure without consent or search warrant.
Subclause (1) provides that an inspector may enter premises
without consent and without a search warrant if--
• the inspector reasonably believes that there are
documents, other things or persons at the premises that
are relevant to the commission or possible commission
of an employee entitlement offence; and
• the inspector reasonably believes that the owner or
occupier of the premises has not consented or would not
consent to the inspector entering the premises under
clause 38; and
• either--
• a notice that complies with clause 41 has been
given to the owner or occupier of the premises at
least 5 business days before the entry; or
• the inspector believes on reasonable grounds that
delay in the entry is likely to result in the
commission of an employee entitlement offence
or the concealment, loss or destruction of
evidence of an employee entitlement offence;
and
• the inspector enters the premises at a reasonable time.
Clause 41 sets out the notice requirements for an entry under clause 40.
Subclause (1) stipulates that a notice given by an inspector under
clause 40 must state--
26
• that the inspector proposes to enter the premises
specified in the notice on the day specified in the notice;
and
• the employee entitlement offence or offences in respect
of which the inspector reasonably believes there are
relevant document or other things or persons at the
premises; and
• that it is an offence not to comply with the notice; and
• any matters prescribed by the regulations.
Subclause (2) provides that if the owner or occupier of the
premises is a natural person, the notice must be given to the
person personally.
Subclause (3) provides that if the owner or occupier of the
premises is a body corporate, the notice must be given by sending
a copy of the notice by registered post to the head office, a
registered office, a principal office or a principal place of
business of the body corporate or to a postal address of the body
corporate.
Clause 42 sets out when a report be given to the Victorian Inspectorate.
Subclause (1) provides that if an inspector gives a notice under
clause 40 to the owner or occupier, or enters premises in
accordance with clause 40(c)(ii) without notice, the inspector
must give a written report to the Victorian Inspectorate
specifying--
• the name of the owner or occupier to whom the notice
was given or whose premises were entered; and
• the reasons for giving the notice or entering the
premises.
Subclause (2) provides that the report must be given to the
Victorian Inspectorate within 7 business days after the notice was
given to the owner or occupier.
Clause 43 provides that an inspector who enters premises under clause 40
may do all or any of the following--
• search the premises and inspect or examine any
document or other thing on the premises;
27
• seize, or secure against interference, any document or
other thing on the premises that the inspector believes
on reasonable grounds to be connected with the
commission or possible commission of an employee
entitlement offence;
• make copies of, or take extracts from, any document or
part of a document kept on the premises;
• make any still or moving image, audio recording or
audiovisual recording on the premises.
Division 5--Entry, search and seizure with search warrant
Clause 44 provides for search warrants.
Subclause (1) provides that an inspector may apply to a
magistrate for the issue of a search warrant in relation to
particular premises if the inspector believes on reasonable
grounds that there is on the premises evidence that a person may
have committed an employee entitlement offence.
Subclause (2) provides that an application under subclause (1)
must not be made without the written approval of the Wage
Inspectorate Victoria.
Subclause (3) provides that if a magistrate is satisfied by
evidence, on oath or affirmation or by affidavit, that there are
reasonable grounds to believe that there is on the premises a
document or other thing, or a document or other thing of a
particular kind, connected with an employee entitlement offence,
the magistrate may issue the search warrant in accordance with
the Magistrates' Court Act 1989.
Clause 45 sets out the form and content requirements of search warrants.
Subclause (1) provides that a search warrant issued under
clause 44 may authorise the inspector named in the warrant
together with a police officer or any other person or persons
named or otherwise identified in the warrant and with any
necessary equipment to do any of the following--
• to enter the premises specified in the warrant, by force if
necessary;
28
• if the inspector believes on reasonable grounds that a
document or other thing, or document or other thing of a
particular kind, named or described in the warrant is
connected with an employee entitlement offence--
• to search for the document or other thing; and
• to seize the document or other thing; and
• to secure the document or other thing against
interference; and
• to examine and inspect the document or other
thing; and
• to make copies of, or take extracts from, the
document or other thing.
Subclause (2) provides that a search warrant issued under
subclause 44(3) must state--
• the purpose for which the search is required; and
• any condition to which the warrant is subject; and
• whether entry is authorised to be made at any time of
the day or night or during specified hours of the day or
night; and
• a day, not later than 28 days after the issue of the
warrant, on which the warrant ceases to have effect.
Subclause (3) provides that except as provided by this Bill, the
rules to be observed with respect to search warrants under the
Magistrates' Court Act 1989 extend and apply to warrants
issued under subclause 44(3).
Clause 46 sets out the requirement for an inspector to make an
announcement before entry.
Subclause (1) provides that on executing a search warrant, the
inspector executing the warrant--
• must announce that the inspector is authorised by the
warrant to enter the premises; and
• must give any person at the premises an opportunity to
allow entry to the premises.
29
Subclause (2) provides that an inspector does not need to comply
with subclause (1) if the inspector believes on reasonable grounds
that immediate entry to the premises is required to ensure--
• the safety of any person; or
• that the effective execution of the search warrant is not
frustrated.
Subclause (3) provides that if the owner or occupier is present at
premises where a search warrant is being executed, the inspector
must give to the owner or occupier a copy of the warrant.
Subclause (4) provides that if the owner or occupier is not present
at premises where a search warrant is being executed, the
inspector must give to a person at the premises (if any) a copy of
the warrant.
Clause 47 provides for the seizure of documents or other things not
described in the warrant. A search warrant issued under
subclause 44(3) authorises an inspector executing the search
warrant, in addition to the seizure of any document or other thing
of the kind described in the warrant, to seize any document or
other thing which is not of the kind described in the warrant if--
• the inspector believes, on reasonable grounds, that the
document or other thing--
• is of a kind which could have been included in a
search warrant issued under this Division; or
• is evidence of an employee entitlement offence;
and
• in the case of seizure, the inspector believes, on
reasonable grounds, that it is necessary to seize that
document or other thing in order to prevent its
concealment, loss or destruction or its use in an
employee entitlement offence.
Division 6--Production of documents and records
Clause 48 sets out the power to require production of documents and
answer questions. This power would usually be used if the Wage
Inspectorate Victoria is unable to obtain the information by
consent or through the exercise of other powers.
30
Subclause (1) provides that an inspector who enters premises
under this Part may do the following--
• require a person at the premises to produce a document
or part of a document and examine that document or
part;
• require a person at the premises to answer any questions
put by the inspector.
Subclause (2) provides that a person must not, without reasonable
excuse, refuse or fail to comply with a requirement under
subclause (1). The maximum penalty for non-compliance is a
level 7 fine (240 penalty units maximum).
Subclause (3) provides that before requiring a person to produce
a document or part of a document under subclause (1), an
inspector--
• must warn the person that a refusal or failure to comply
with the requirement, without reasonable excuse, is an
offence; and
• must inform the person of the nature and effect of
clause 49 (which deals with the privilege against
self-incrimination).
Subclause (4) provides that before requiring a person to answer
questions under subclause (1), an inspector--
• must warn the person that a refusal or failure to comply
with the requirement, without reasonable excuse, is an
offence; and
• must inform the person that the person may refuse or
fail to answer any question if answering the question
would tend to incriminate the person.
Subclause (5) provides that a person is not liable to be prosecuted
for an offence against subclause (2) if the inspector concerned
failed to comply with subclause (3) or (4) as the case requires.
Subclause (6) provides that despite section 7 of the Criminal
Procedure Act 2009, a proceeding for an offence against this
clause must be commenced within 3 years after the date on which
the Wage Inspectorate Victoria becomes aware that an offence
has been committed.
31
Clause 49 provides that a person is not excused from producing a document
as and when required by or under subclause 48(1) on the ground
that the production of the document might incriminate the person.
Subclause (2) provides that a document produced by a natural
person under subclause 48(1) is not admissible in evidence
against the person in criminal proceedings unless--
• the person, or the owner or occupier of the premises
concerned, is required by law to keep the document; or
• the proceedings are in respect of an alleged offence
against clause 70 or an offence against section 257(1),
321, 321G or 321M of the Crimes Act 1958 in relation
to an offence against clause 70; or
• the proceedings are in respect of false or misleading
information included in the document or the making of
a false or misleading statement.
Subclause (3) clarifies that subclause (2) does not prevent the
admission in criminal proceedings of any evidence obtained as a
direct or indirect consequence of a document produced as and
when required by or under clause 48, and any such evidence is
admissible in the proceeding in accordance with the rules of
evidence applicable to the proceeding.
Division 7--Retention and return of seized document or other
things
Clause 50 sets out the procedure for the retention and return of seized
documents or things.
Subclause (1) provides that if an inspector seizes a document or
other thing under this Part, the inspector must take reasonable
steps to return the document or other thing to the person from
whom it was seized if the reason for its seizure no longer exists.
Subclause (2) provides that if an inspector retains possession of a
document seized from a person under this Part, the inspector
must, within 21 days after the seizure, give the person a copy of
the document certified as correct by the inspector.
Subclause (3) provides that a copy of a document certified under
subclause (2) must be received in all courts and VCAT to be
evidence of equal validity to the original.
32
Subclause (4) specifies that if a document or other thing seized
by an inspector under this Part has not been returned within
3 months after it was seized, the inspector must take reasonable
steps to return it unless--
• proceedings for the purpose for which the document or
other thing was retained have commenced within that
3 month period and those proceedings (including any
appeal) have not been completed; or
• the Magistrates' Court makes an order under clause 51
extending the period during which the document or
other thing may be retained.
Clause 51 provides that the Magistrate's Court may extend the 3 month
period for the retention and return of a seized document or thing.
Subclause (1) provides that an inspector may apply to the
Magistrates' Court for an extension (not exceeding 3 months) of
the period during which a seized document or other thing may be
retained--
• within 3 months after the document or other thing is
seized under this Part; or
• if an extension has been granted under this clause,
before the end of the period of the extension.
Subclause (2) empowers the Magistrates' Court to make an order
extending the period if it is satisfied that the total period of
retention does not exceed 12 months and retention of the
document or other thing is necessary--
• for the purposes of the Wage Inspectorate Victoria
investigating the commission or possible commission of
an employee entitlement offence; or
• to enable evidence of the commission or possible
commission of an employee entitlement offence to be
obtained for the purposes of a proceeding under this
Bill.
Subclause (3) provides that the Magistrates' Court may adjourn
an application to enable notice of the application to be given to
any person.
33
Division 8--Power of the Wage Inspectorate Victoria to require
attendance, etc.
Clause 52 provides that the Wage Inspectorate Victoria may compel
production of documents and other things or attendance.
Subclause (1) sets out that for the purposes of investigating the
commission or possible commission of an employee entitlement
offence, the Wage Inspectorate Victoria may give written notice
to a person requiring the person to--
• produce a specified document or other thing to the
Wage Inspectorate Victoria, or provide specified
information to the Wage Inspectorate Victoria, before a
specified time and in a specified manner; or
• attend the Wage Inspectorate Victoria at a specified
time and place, and from then on from day to day until
excused, to one or more of the following--
• give evidence;
• answer questions;
• produce a specified document or other thing.
Subclause (2) provides that a notice under subclause (1)--
• must be in the prescribed form (if any); and
• must contain the following information--
• a statement outlining the employee entitlement
offence or offences that are being investigated;
and
• a statement outlining the consequences of non-
compliance with the notice; and
• any other prescribed information; and
• must be accompanied by a statement that sets out
the matters in subclause (3); and
• must be given in accordance with clause 53.
Subclause (3) provides that a statement referred to in subclause
(2) must include the following--
• that failure to comply with the notice may be an offence
and penalties may apply;
34
• that if the person summoned is aged under 16 years
when the notice is given, the person need not comply
with the notice, subject to the requirements of clause 56;
• that the person is entitled to seek legal advice in relation
to the notice;
• that the person has a right to legal representation;
• that, if applicable, the person has a right to have an
interpreter present at an attendance before the Wage
Inspectorate Victoria;
• that, if applicable, the person is required to have a
parent, a guardian or an independent person present at
an attendance before the Wage Inspectorate Victoria;
• that a person may claim a privilege;
• the effect of clause 55 (which deals with the privilege
against self-incrimination in relation to the production
of documents).
Subclause (4) clarifies that the Wage Inspectorate Victoria must
not issue a notice under subclause (1) to a person who is aged at
least 16 years, but under 18 years, at the time the notice is given,
unless the Wage Inspectorate Victoria considers on reasonable
grounds that--
• the information, evidence, document or thing that the
person could provide may be compelling and probative
evidence; and
• it is not practicable to obtain the evidence, information,
document or thing by any other means.
Clause 53 sets out additional notice requirements.
Subclause (1) provides that a notice given under clause 52 to a
person that requires the person to attend the Wage Inspectorate
Victoria and give evidence or answer questions must state the
nature of the matters on which the person may be asked to give
evidence or answer questions, unless the Wage Inspectorate
Victoria considers on reasonable grounds that to do so--
• would be likely to prejudice the investigation; or
• would otherwise be contrary to the public interest.
35
Subclause (2) provides that a notice given to a natural person
under subclause 52(1) must be given by giving a copy of the
notice to the person personally.
Subclause (3) provides that a notice under subclause 52(1) given
to a body corporate must be given by leaving a copy of the notice
at the registered office or principal place of business of the body
corporate with a person who--
• is apparently employed at that office or place; and
• is apparently at least 18 years of age.
Subclause (4) clarifies that subclause (3) is in addition to, and not
in derogation of, sections 109X and 601CX of the Corporations
Act 2001 of the Commonwealth.
Clause 54 sets out when a report must be given to the Victorian
Inspectorate.
Subclause (1) provides that if an inspector gives a notice under
subclause 52(1) to a person, the inspector must give a written
report to the Victorian Inspectorate specifying--
• the name of the person to whom the notice was given;
and
• the reasons for giving the notice.
Subclause (2) provides that the report must be given to the
Victorian Inspectorate within 7 business days after the notice was
given to the person.
Clause 55 provides that privilege against self-incrimination is abrogated in
respect of the production of documents. Subclause (1) provides
that a person is not excused from producing a document as and
when required by or under clause 52 on the ground that the
production of the document might incriminate the person.
Subclause (2) provides that a document produced by a natural
person under clause 52 is not admissible in evidence against the
person in criminal proceedings unless--
• the person, or the owner or occupier of the premises
concerned, is required by law to keep the document; or
36
• the proceedings are in respect of an alleged offence
against clause 70 or an offence against section 257(1),
321, 321G or 321M of the Crimes Act 1958 in relation
to an offence against clause 70; or
• the proceedings are in respect of false or misleading
information included in the document or the making of
a false or misleading statement.
Subclause (3) clarifies that subclause (2) does not prevent the
admission in criminal proceedings of any evidence obtained as a
direct or indirect consequence of a document produced as and
when required by or under clause 52, and any such evidence is
admissible in the proceeding in accordance with the rules of
evidence applicable to the proceeding.
Clause 56 provides that a notice given under clause 52 to a person aged
under 16 years when the notice is given has no effect.
Subclause (2) provides that a person who claims to be aged under
16 years when a notice was given to the person must provide
proof of age in accordance with the regulations to the Wage
Inspectorate Victoria.
Clause 57 sets out the provisions relating to attendances.
Subclause (1) clarifies that this clause only applies if a person
attends the Wage Inspectorate Victoria to give evidence or
answer questions pursuant to a notice under subclause 52(1).
Subclause (2) provides that if, before the questioning commences
or at any time during the attendance, the Wage Inspectorate
Victoria considers that person does not have sufficient
knowledge of the English language to enable the person to
understand questions asked or to answer those questions, the
Wage Inspectorate Victoria must provide for a competent
interpreter to be present.
Subclause (3) provides that if the person attending is aged under
18 years, the person must be accompanied by a parent, guardian
or an independent person.
Subclause (4) stipulates that the Wage Inspectorate Victoria must
direct that an independent person be present during the
attendance if--
37
• the Wage Inspectorate Victoria believes the person
attending has a mental impairment; or
• the person attending provides the Wage Inspectorate
Victoria with reasonably satisfactory medical evidence
that the person has a mental impairment.
Subclause (5) provides that the Wage Inspectorate Victoria must
immediately release a person from attending if, at any time
during the attendance, the Wage Inspectorate Victoria becomes
aware that the person attending is aged under 16 years.
Clause 58 sets out the procedure underpinning the audio or video recording
of attendances.
Subclause (1) provides that if a person attends the Wage
Inspectorate Victoria to give evidence or answer questions
pursuant to a notice under subclause 52(1), the Wage
Inspectorate must ensure that an audio or video recording of the
attendance is made.
Subclause (2) clarifies that evidence of anything said by the
person during the attendance is inadmissible as evidence against
any person in any proceeding before a court or tribunal unless--
• an audio or video recording of the attendance is made;
and
• the audio or video recording is available to be tendered
in evidence.
Subclause (3) provides that despite subclause (2), a court may
admit evidence of anything said by the person that is otherwise
inadmissible because of that subclause if the court is satisfied that
there are exceptional circumstances that justify the admission of
the evidence.
Subclause (4) provides that, unless the Wage Inspectorate
Victoria considers on reasonable grounds that doing so may
prejudice the investigation of the commission or possible
commission of an employee entitlement offence, the Wage
Inspectorate Victoria must provide the person with--
• the audio or video recording; and
• any transcript created.
38
Subclause (5) stipulates that if the Wage Inspectorate Victoria
decides not to provide the person with a copy of the audio or
video recording and any transcript, the Wage Inspectorate
Victoria must allow the person to listen to or view the recording
of the person's evidence at the Wage Inspectorate Victoria's
premises at any reasonable time.
Subclause (6) provides that the Wage Inspectorate Victoria must
provide copy of the audio or video recording and any transcript
of the attendance to the Victorian Inspectorate as soon as possible
after the event.
Clause 59 empowers the Wage Inspectorate Victoria to take evidence on
oath or affirmation.
Subclause (1) provides that the Wage Inspectorate Victoria may
require a person attending the Wage Inspectorate Victoria to give
evidence or answer questions on oath or affirmation.
Subclause (2) clarifies that the Commissioner, or a member of
staff of the Wage Inspectorate Victoria who is authorised to do so
by the Commissioner, may administer an oath or affirmation to a
person for the purposes of subclause (1).
Clause 60 sets out the powers in relation to documents and other things.
Subclause (1) provides that this clause applies if the Wage
Inspectorate Victoria may--
• inspect any document or other thing produced to the
Wage Inspectorate Victoria; and
• retain the document or other thing for as long as is
reasonably necessary; and
• copy any document or other thing produced to the Wage
Inspectorate Victoria.
Subclause (2) provides that if the retention of a document or
other thing under subclause (1) ceases to be reasonably necessary
for the purposes of the investigation of the commission or
possible commission of an employee entitlement offence, the
Wage Inspectorate Victoria, at the request of a person who
attends to be entitled to the document or other thing, must cause
the document or other thing to be delivered to the person.
39
Clause 61 provides for the legal representation of persons attending and
other persons.
Subclause (1) provides that a person who is given a notice under
subclause 52(1) to attend the Wage Inspectorate Victoria is
entitled to be represented by an Australian legal practitioner in
respect of the attendance.
Subclause (2) clarifies that a legal practitioner representing the
person at the attendance, or assisting the Wage Inspectorate
Victoria at the attendance, has the same protection and immunity
as a legal practitioner has in representing a party in a proceeding
in the Supreme Court.
Subclause (3) clarifies that the person attending has the same
protection and immunity as a witness has in a proceeding in the
Supreme Court.
Clause 62 clarifies that subject to clauses 49 and 55, nothing in this Part is
to be taken to require a person to disclose information that is
subject to a privilege.
Part 5--General matters
Division 1--Enforceable undertakings
Clause 63 provides that the Wage Inspectorate Victoria may accept an
undertaking if a person has committed, or if the Wage
Inspectorate Victoria alleges a person has committed, an
employee entitlement offence.
Subclause (2) provides that the Wage Inspectorate Victoria may
accept a written undertaking from the person, under which the
person undertakes to take certain actions, or refrain from taking
certain actions, for the purpose of ensuring that the person does
not commit a further employee entitlement offence.
Subclause (3) allows a person to withdraw or amend an
undertaking with the consent of the Wage Inspectorate Victoria.
Subclause (4) provides that the Wage Inspectorate Victoria may
withdraw its acceptance of the undertaking at any time and the
undertaking ceases to be in force on that withdrawal.
40
Clause 64 prohibits certain actions while an undertaking is in force or is
being complied with.
Subclause (1) provides that while an undertaking is in force, the
Wage Inspectorate Victoria must not commence proceedings
against the person who gave the undertaking in respect of the
employee entitlement offence to which the undertaking relates.
Subclause (2) provides that if a person who has given an
undertaking complies with the undertaking, no further
proceedings may be commenced against the person in respect of
the employee entitlement offence to which the undertaking
relates.
Clause 65 sets out the options available to the Wage Inspectorate Victoria in
the event a person has failed to comply with the terms of an
undertaking.
Subclause (1) provides that the Wage Inspectorate Victoria may
apply to the Magistrate's Court for an order to enforce the
undertaking under subclause (2) if the Wage Inspectorate
Victoria considers that a person who gave an undertaking has
failed to comply with any of its terms.
Subclause (2) provides that if the Magistrates' Court is satisfied
that the person has failed to comply with the undertaking, the
Magistrates' Court may make any of the following orders--
• an order directing the person to comply with the
undertaking;
• an order that the person take any specified action for the
purpose of complying with the undertaking;
• any other order that the Magistrates' Court considers
appropriate in the circumstances.
Subclause (3) provides that if the Magistrates' Court determines
that the person has failed to comply with an undertaking,
proceedings may be commenced for an employee entitlement
offence to which the undertaking relates.
Subclause (4) clarifies that proceedings referred to in subclause
(3) may be commenced during whichever of the following
periods ends later--
41
• 12 months after the determination; or
• 3 years of the date of the alleged offence.
Division 2--Offences
Clause 66 provides for offences relating to hindering or obstructing
inspectors etc.
Subclause (1) specifies that a person must not--
• intentionally hinder or obstruct an inspector in the
performance of the inspector's functions or exercise of
the inspector's powers under this Bill or the regulations,
or induce or attempt to induce any other person to do so;
or
• intentionally conceal from an inspector the location or
existence of any other person or document or other
thing; or
• intentionally prevent or attempt to prevent any other
person from assisting an inspector.
The maximum penalty for doing so is 300 penalty units in the
case of a body corporate and in all other cases, up to 60 penalty
units.
Subclause (2) specifies that a person must not assault, directly or
indirectly intimidate or threaten, or attempt to intimidate or
threaten, an inspector or a person assisting an inspector.
The maximum penalty for doing so is up to 1200 penalty units in
the case of a body corporate and in all other cases, up to 2 years
imprisonment.
Clause 67 provides for offences relating to allowing entry of a person
assisting an inspector.
Subclause (1) specifies that for the purpose of exercising a power
under this Bill or the regulations, an inspector may seek the
assistance of any person.
Subclause (2) clarifies that if the power being exercised involves
entry to premises that are a workplace, whichever of the
following persons who is at the premises must allow access to the
person assisting--
42
• the owner or the occupier of the premises
(as applicable); or
• the person (if any) who has the management and control
of the premises.
Failure to do so incurs a maximum level 9 fine (60 penalty units
maximum).
Subclause (3) provides that if an inspector uses the assistance of
an interpreter--
• any enquiry or request made by the interpreter on the
inspector's behalf is taken to have been made by the
inspector; and
• any answer given to the interpreter is taken to have been
given to the inspector.
Clause 68 provides for the offence of failing to take an oath, make an
affirmation or answer a question.
Subclause (1) provides that a person who is given a notice under
clause 52(1) must not, without reasonable excuse, refuse or fail to
take an oath or make an affirmation when required to do so. A
failure to comply incurs a level 7 imprisonment (maximum
2 years).
Subclause (2) clarifies that a person does not commit an offence
against subclause (1) unless, before the person is required to take
the oath or make the affirmation or answer the question, the
Wage Inspectorate Victoria informs the person that refusal or
failure to do so without reasonable excuse is an offence.
Clause 69 provides that failure to attend before the Wage Inspectorate
Victoria is an offence.
Subclause (1) provides that a person who has been given a notice
under subclause 52(1) must not, without reasonable excuse, fail
to comply with the notice. The maximum penalty for
non-compliance is 300 penalty units in the case of a body
corporate and in any other case, a level 7 imprisonment (2 years
maximum).
Subclause (2) provides that a person must not, without reasonable
excuse, refuse or fail to answer a question that he or she is
required to answer by the Wage Inspectorate Victoria.
43
Subclause (3) clarifies that, without limiting what may be a
reasonable excuse for the purposes of subclause (1) or (2), it is a
reasonable excuse for a person to fail to comply with a notice by
refusing to give information to the Wage Inspectorate Victoria if
the information--
• in the case of a natural person, might tend to incriminate
the person or expose the person to a penalty in relation
to--
• proceedings for an offence that have not finally
been disposed of; or
• proceedings for the imposition or recovery of a
penalty that have been commenced against the
person but not finally disposed of; or
• is the subject of parliamentary privilege; or
• is the subject of public interest immunity; or
• is prohibited from disclosure by a court order; or
• is prohibited from disclosure by a provision of another
enactment that specifically applies to the disclosure of
information or the production of documents or other
things to the Wage Inspectorate Victoria; or
• is prohibited from disclosure by a provision of another
enactment that is prescribed by the regulations.
Clause 70 provides that it is an offence to give false or misleading
information.
Subclause (1) provides that a person must not give information to
an inspector, the Wage Inspectorate Victoria or the
Commissioner that the person believes to be false or misleading
in a material particular. The maximum penalty for doing so is a
level 5 fine (1200 penalty units maximum) in the case of a body
corporate and in any other case, level 7 imprisonment (maximum
2 years).
Subclause (2) provides that a person must not produce a
document to an inspector, the Wage Inspectorate Victoria or the
Commissioner under this Part that the person knows to be false or
misleading in a material particular without indicating the respect
in which it is false or misleading and, if practicable, providing
correct information. The maximum penalty for doing so is a
44
level 5 fine (1200 penalty units maximum) in the case of a body
corporate and in any other case, level 7 imprisonment (maximum
2 years).
Division 3--Referrals
Clause 71 sets out the process for referring matters to the Office of Public
Prosecutions.
Subclause (1) provides that the Wage Inspectorate Victoria, at
any time, may refer to the Office of Public Prosecutions any
matter that the Wage Inspectorate Victoria considers is relevant
to the performance of the prosecutorial duties and functions or
the exercise of prosecutorial powers of the Office of Public
Prosecutions, if the Wage Inspectorate Victoria considers the
referral appropriate.
Subclause (2) clarifies that without limiting any matter which
may be referred under this clause, the Wage Inspectorate Victoria
may refer any matter under investigation by the Wage
Inspectorate Victoria.
Clause 72 provides that the Wage Inspectorate Victoria may consult with
the Office of Public Prosecutions for the purposes of deciding
whether to refer a matter under clause 71 to the Office of Public
Prosecutions.
Clause 73 sets out the information to be provided when a referral has been
made.
Subclause (1) provides that the Wage Inspectorate Victoria may
provide or disclose to the Office of Public Prosecutions any
information that the Wage Inspectorate Victoria has in relation to
a matter referred under clause 71.
Subclause (2) provides that the Wage Inspectorate Victoria, at
any time, may require the Office of Public Prosecutions within a
reasonable time specified by the Wage Inspectorate Victoria, to
give to the Wage Inspectorate Victoria information regarding--
• any investigation of the referred matter;
• any action taken in respect of the referred matter.
45
Division 4--Other general matters
Clause 74 clarifies that an act or decision of the Wage Inspectorate Victoria,
the Commissioner or an acting Commissioner is not invalid--
• only because of a defect or irregularity in, or in
connection with, the appointment of the Commissioner
or Acting Commissioner; or
• on the ground that the occasion for the Acting
Commissioner to act had not arisen or had ceased.
Clause 75 provides immunity for carrying out functions under the Act.
Subclause (1) provides that the Commissioner, Acting
Commissioner or another person who performs a function of the
Commissioner under this Bill or under any other Act is not
personally liable for anything necessarily or reasonably done or
omitted to be done in good faith--
• in the performance of the function; or
• in the reasonable belief that the act or omission was in
the performance of the function.
Subclause (2) specifies that any liability resulting from an act or
omission that, but for subclause (1), would attach to the
Commissioner, Acting Commissioner or another person attaches
instead to the Wage Inspectorate Victoria.
Clause 76 prohibits discrimination against a person for complying with this
Bill.
Subclause (1) provides that a person must not, by threat or
intimidation, persuade or attempt to persuade another person--
• not to provide information under this Bill; or
• not to continue with any process under this Bill; or
• not to comply with any other requirement under this
Bill.
The maximum penalty for doing so is a level 6 fine (600 penalty
units) for a body corporate and in any other case, level 8
imprisonment (maximum 1 year).
46
Subclause (2) specifies that a person must not refuse to employ,
hire, or engage, or dismiss or terminate the employment, hiring or
engagement of, another person, or subject another person to any
detriment because the other person--
• intends to provide, provides or has provided information
under this Bill; or
• intends to take part in, or takes part in, or has taken part
in any process under this Bill; or
• intends to comply, complies or has complied with any
other requirement under this Bill.
The maximum penalty for doing so is up to 600 penalty units for
a body corporate and in any other case, level 8 imprisonment
(maximum 1 year).
Clause 77 provides that a person who obtains information in performing the
person's functions or exercising the person's power under this Bill
must not disclose the information unless the disclosure is
authorised under this clause. The maximum penalty for doing so
is 75 penalty units.
Subclause (2) clarifies that a person may disclose information
acquired in performing a function or exercising a power under
this Bill in any of the following circumstances--
• if the disclosure of information is reasonably necessary
for the person to perform the person's functions or
exercise the person's powers under this Bill;
• if the disclosure of the information is to a court or
VCAT in the course of legal proceedings;
• if the disclosure of the information is under an order of
a court or VCAT;
• if the disclosure of the information is to the extent
reasonably required to enable the investigation or the
enforcement of a law of this State or of any other State
or Territory or of the Commonwealth;
• if the disclosure of the information is with the written
consent of the person to whom the information relates;
• if the disclosure is required by law.
47
Subclause (3) provides that the Commissioner or an inspector
may disclose information acquired in carrying out a function
under this Bill that relates to the commencement, progress or
outcome of an investigation if the Commissioner is satisfied that
it is in the public interest to do so.
Clause 78 provides for the conduct of offices, employees and agents of
bodies corporate in proceedings under Part 4 or this Part of the
Bill.
Subclause (1) provides that if, in proceedings under Part 4 or this
Part in respect of conduct that is engaged in by a body corporate,
it is necessary to establish the state of mind of the body
corporate, it is sufficient to show--
• that an officer, employee or agent of the body corporate
engaged in that conduct within the scope of the actual or
apparent authority of the officer, employee or agent; and
• that the officer, employee or agent had that state of
mind.
Subclause (2) clarifies that for the purposes of this Bill, any
conduct engaged in on behalf of a body corporate by an officer,
employee or agent of the body corporate acting within the scope
of the person's actual or apparent authority is taken to be conduct
engaged in by the body corporate.
Division 5--Regulations
Clause 79 provides for the power of the Governor in Council to make
regulations for or with respect to any matter or thing required or
permitted under the Act to be prescribed or necessary to be
prescribed.
Subclause (2) provides that, without limiting the power, the
regulations may prescribe matters for or with respect to the
following--
• matters to be included in a notice given by an inspector
under clause 40;
• requirements relating to proof of age for the purposes of
clause 56.
48
Subclause (3) provides that the regulations made under the Act--
• may be of general or limited application; and
• may differ according to differences in time, place or
circumstance; and
• may confer a discretionary authority, or impose a duty,
on a specified person or body or class of person or body.
Subclause (4) clarifies that sections 6 and 7 of the Subordinate
Legislation Act 1994 do not apply to the first regulations made
under this clause.
Part 6--Consequential amendments
Division 1--Amendment of the Criminal Procedure Act 2009
Clause 80 inserts new subsection (ab) in clause 4A(1) of Schedule 1 to
provide that the employee entitlement offences under clauses 6, 7
and 8 are relevant offences for the purpose of being able to bring
a course of conduct charge.
Clause 81 inserts new section 29B in Schedule 2 to provide that the
jurisdictional limit for the Magistrates' Court is $100,000 for the
dishonest withholding of employee entitlement offences under
clause 6.
Division 2--Amendment of the Sentencing Act 1991
Clause 82 inserts new subsections in section 84 of the Sentencing Act 1991
to confirm that if a person is found guilty of an offence against
clauses 6(1), 7(1) or 8(1), the court may make a restitution order
that the person pay or attribute the withheld entitlements to the
employee or pay the employee an amount not exceeding the
value of the entitlements withheld. For officers convicted under
clauses 6(7), 7(2) or 8(2), the court can order the person pay the
employee an amount not exceeding the value of the entitlements
withheld.
Clause 83 amends section 85(1) of the Sentencing Act 1991 to provide that
a restitution order for an employee entitlement offence can be
enforced as a judgment debt.
49
Division 3--Amendment of the Victorian Inspectorate Act 2011
Clause 84 amends section 3(1) of the Victorian Inspectorate Act 2011 to
insert the following definitions--
• Commissioner of the Wage Inspectorate Victoria to
mean the Commissioner of the Wage Inspectorate
Victoria appointed under clause 25(2) of the Wage
Theft Act 2020;
• Wage Inspectorate Victoria has the same meaning as in
the Wage Theft Act 2020;
• Wage Inspectorate Victoria officer to mean the
following--
• the Commissioner of the Wage Inspectorate
Victoria;
• an inspector appointed under clause 33 of the
Wage Theft Act 2020;
• a person referred to in clause 23(1) of the Wage
Theft Act 2020;
Subclause (2) amends section 3(1) of the Victorian Inspectorate
Act 2011 to insert after paragraph (e) of the definition of coercive
powers the following--
"(f) in relation to the Wage Inspectorate Victoria or a Wage
Inspectorate Victoria officer, any power of the Wage
Inspectorate Victoria or a Wage Inspectorate Victoria
officer under Part 4 of the Wage Theft Act 2020;".
Clause 85 amends the object of the Victorian Inspectorate Act 2011 to
substitute and insert the following--
• in section 5(h) for "2016." substitute "2016; and".
• After section 5(h) insert "(i) monitor the use of coercive
powers by the Wage Inspectorate Victoria and Wage
Inspectorate Victoria officers.".
50
Clause 86 amends the functions of the Victorian Inspectorate Act 2011.
After section 11(6), the following is to be inserted--
"(7) Without limiting the generality of subsection (1), the
Victorian Inspectorate has the following functions in
respect of the Wage Inspectorate Victoria and Wage
Inspectorate Victoria officers--
(a) to monitor the exercise of coercive powers by the
Wage Inspectorate Victoria and Wage
Inspectorate Victoria officers;
(b) to investigate and assess, in accordance with this
Bill, the conduct of the Wage Inspectorate
Victoria and Wage Inspectorate Victoria officers
in the performance or exercise or purported
performance or purported exercise of coercive
powers;
(c) to report on, and make recommendations as a
result of, the performance of its functions under
paragraphs (a) and (b).".
Clause 87 amends the Victorian Inspectorate Act 2011 to insert the
following after section 27(1)(la)--
"(lb) the power to authorise a Victorian Inspectorate Officer
to enter premises of the Wage Inspectorate Victoria
under section 63(11); or".
Clause 88 creates 42D and 42E in the Victorian Inspectorate Act 2011.
The new section 42D is inserted after section 42C containing the
following provision--
"42D Coercive questioning by the Wage Inspectorate
(1) The Victorian Inspectorate may require the Wage
Inspectorate Victoria to provide a written report
specifying, in relation to an attendance by person before
the Wage Inspectorate Victoria under a notice given
under section 52 of the Wage Theft Act 2020--
• the name of the person who attended;
• the name of any other person who was present
during the attendance in an official capacity
under any Act;
51
• the reasons for the attendance of the person being
examined;
• the place and time of each attendance by the
person for examination;
• the relevance of the attendance to the purpose of
the investigation in relation to which the
attendance occurred;
• any other prescribed matter.
(2) The Wage Inspectorate Victoria must comply with a
requirement under subsection (1) as soon as possible
after it is made.".
The new section 42E(1), inserted after the new section 42D,
clarifies that the Victorian Inspectorate may review the
following--
• a written report given under section 42 of the Wage
Theft Act 2020;
• a written report given under section 54 of the Wage
Theft Act 2020;
• a copy of any an audio or video recording or transcript
of an attendance made under section 58 of the Wage
Theft Act 2020.
The new section 42E(2) would stipulate that a review of a matter
under section 42E(1) must assess--
• whether the requirements under the Wage Theft
Act 2020 have been complied with;
• whether the requirement to produce documents or things
for the purposes of the investigation may reasonably be
considered to assist the Wage Inspectorate Victoria to
achieve the purposes of the investigation; and
• whether the questioning of a person attending before the
Wage Inspectorate Victoria may reasonably be
considered to assist the Wage Inspectorate Victoria to
achieve the purposes of the investigation.
52
The new section 42E(3) would stipulate that if the Victorian
Inspectorate considers that an audio or video recording is no
longer necessary for the purposes of the review, the recording
may be returned to the Wage Inspectorate Victoria or destroyed.
Clause 89 amends section 46 of the Victorian Inspectorate Act 2011 to
insert subsection 46(6) to provide that the Victorian Inspectorate,
on its own motion, may investigate the conduct of the Wage
Inspectorate Victoria or a Wage Inspectorate Victoria officer in
respect of the exercise or purported exercise of coercive powers
in relation to any matter.
Clause 90 amends section 47 so that after section 47(4B) the following is to
be inserted--
"(4C) For the purposes of conducting an investigation in
relation to Wage Inspectorate Victoria or a Wage
Inspectorate Victoria officer, the Victorian
Inspectorate--
(a) may investigate any aspect of the operations of
the Wage Inspectorate Victoria or the conduct of
a Wage Inspectorate Victoria officer that relate
to the use of coercive powers; and
(b) has full and free access to all the records of the
Wage Inspectorate Victoria and may copy any
record or part of any record of the Wage
Inspectorate Victoria; and
(c) may require a Wage Inspectorate Victoria officer
to give the Victorian Inspectorate any
information in the Wage Inspectorate Victoria
officer's possession which the Victorian
Inspectorate considers is relevant to the
investigation; and
(d) may require Wage Inspectorate Victoria officer
to attend before the Victorian Inspectorate to
answer questions or to produce documents or
other things relating to operations of the Wage
Inspectorate Victoria or any conduct of a Wage
Inspectorate Victoria officer that relate to the use
of coercive powers.".
53
Clause 91 amends section 48 of the Victorian Inspectorate Act 2011 to
insert a new provision requiring the Wage Inspectorate Victoria
and its officers to provide assistance to the Victorian Inspectorate
that the Victorian Inspectorate reasonably requires to enable the
Victorian Inspectorate to conduct an investigation under this Part
that relates to Wage Inspectorate Victoria.
Clause 92 amends section 102(f) of the Victorian Inspectorate Act 2011
by substituting "63." for "63;".
Subclause (2) amends section 50 of the Victorian Inspectorate
Act 2011 to insert a new provision empowering the Victorian
Inspectorate, after notifying the Commissioner of the Wage
Inspectorate Victoria, to enter and search premises of the Wage
Inspectorate and inspect, copy and seize any document or thing in
accordance with section 63.
Clause 93 amends section 63 of the Victorian Inspectorate Act 2011 to
insert 2 new provisions. The new subsection 63(11) empowers
the Victorian Inspectorate, after notifying the Wage Inspectorate
Victoria, to enter the Wage Inspectorate Victoria premises to
search for documents, inspect or copy documents found at those
premises and seize any document found at those premises that is
relevant to the inquiry and keep it until the Victorian Inspectorate
has completed its inquiry. The new subsection 63(12) clarifies
that this can only be done by the Victorian Inspectorate if the
Victorian Inspectorate considers on reasonable grounds that the
Wage Inspectorate Victoria or its officer has wilfully failed to
give assistance in accordance with section 48(7).
Clause 94 amends the Victorian Inspectorate Act 2011 to insert new
sections 85F and 85G. 85F empowers the Victorian Inspectorate
to, at any time, make recommendations to any action that the
Victorian Inspectorate considers should be taken. A
recommendation that is not contained in a report must be made in
private although the Victorian Inspectorate can still make the
recommendation public if the Victorian Inspectorate considers
that the Wage Inspectorate Victoria has failed to take appropriate
action in relation to the recommendation.
Under section 85F, the Victorian Inspectorate may require the
Wage Inspectorate Victoria to give a report to the Victorian
Inspectorate on whether or not the Wage Inspectorate Victoria
has taken or intends to take action with regards to a
recommendation it has made, and if the Wage Inspectorate
54
Victoria has not taken or does not intend to take the
recommended action, the reason for this. The Wage Inspectorate
Victoria must comply with such a requirement of the Victorian
Inspectorate.
Section 85G allows the Victorian Inspectorate to, at any time,
recommend in private to the Wage Inspectorate Victoria the
undertaking of a disciplinary process or action against any Wage
Inspectorate Victoria officer other than the Commissioner of the
Wage Inspectorate Victoria. However, this does not limit the
power of the Victorian Inspectorate to make a public
recommendation if it considers that Wage Inspectorate Victoria
has failed to take appropriate action in relation to the
recommendation. If the Victorian Inspectorate is satisfied that
any conduct of a Wage Inspectorate Victoria officer which has
been the subject of an investigation or other finding should be the
subject of any further investigatory or enforcement action, the
Victorian Inspectorate may make a recommendation to that effect
to any or all of the following--
• the Chief Commissioner of Police;
• the Director of Public Prosecutions;
• the Australian Federal Police;
• the Independent Broad-based Anti-corruption
Commission (IBAC);
• the Victorian WorkCover Authority;
• any other person or body prescribed for the purposes of
this subsection.
Clause 95 amends section 86(1) of the Victorian Inspectorate Act 2011 to
substitute "or 85C" for ",85C, 85F or 85G".
Clause 96 amends section 89 of the Victorian Inspectorate Act 2011 to
insert provision 89(8) which empowers the Victorian Inspectorate
to make recommendations to the Wage Inspectorate Victoria,
Chief Commissioner of Police, Director of Public Prosecutions,
Australian Federal Police, the IBAC, the Victorian WorkCover
Authority and to a person or body prescribed for the purposes of
section 85G(3)(f), if it chooses to do so.
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The Victorian Inspectorate is also empowered to transmit a report
or do any combination, or all of the matters referred to above.
The Victorian Inspectorate is also empowered to make no
findings or take no action following the investigation.
Clause 97 amends section 91(1) of the Victorian Inspectorate Act 2011 to
insert a provision detailing the further matters to be included in
the Victorian Inspectorate's annual report, which are--
"(t) details of the results of the Victorian Inspectorate's
monitoring of the exercise of coercive powers by the
Wage Inspectorate Victoria or Wage Inspectorate
Victoria officers; and
(u) details of the comprehensiveness and adequacy of
reports made to the Victorian Inspectorate by the Wage
Inspectorate Victoria under this Act;
(v) details of the extent to which action recommended by
the Victorian Inspectorate to be taken by the Wage
Inspectorate Victoria has been taken.".
Clause 98 amends section 102(2) of the Victorian Inspectorate Act 2011
to substitute "Commission." for "Commission;".
This clause also amends section 102(2) of the Victorian
Inspectorate Act 2011 to insert "the Wage Inspectorate" and
"a Wage Inspectorate officer" in the definition of relevant person
or body.
Division 4--Amendment of the Public Administration Act 2004
Clause 99 amends section 16(1) of Public Administration Act 2004 to
insert the following--
"(fb) the Commissioner of the Wage Inspectorate Victoria in
relation to the Wage Inspectorate Victoria within the
meaning of the Wage Theft Act 2020;".
Division 5--Repeal of amending Part
Clause 100 repeals this Part on 1 July 2022.
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