In late 2023, the Federal Parliament passed the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) which, amongst other things, will criminalise wage theft when the relevant provisions commence in early 2025. Whilst non-payment of superannuation was initially excluded from the new wage theft provisions, a last minute deal with the Greens secured amendments to extend the new offence to unpaid superannuation.

As a result, superannuation entitlements for the vast majority of national system employees will have an additional layer of protection afforded to them by the new criminal offence. However, some narrow exceptions mean that a failure to pay certain amounts, in respect of certain employees, will not attract the criminal penalty in relation to superannuation.

Under the new wage theft offence, an employer commits the offence if:

• they are required to pay an amount to an employee – a required amount;
• the amount is not a required amount that is covered by an exception; and
• the employer engages in conduct which results in a failure to pay the required amount to the employee in full and on time.

Put simply, there are some required amounts that have been carved out of scope for particular employees and employers, including “…those who are covered by the FW Act only due to the States’ referral of powers to the Commonwealth”. For those, and as the Explanatory Memorandum describes it,[1] the provision ‘disapplies’ the wage theft offence in relation to certain specified entitlements. This includes superannuation contributions, long service leave payments and certain other payments in respect of specific leave – including but not limited to jury duty or emergency services leave.

Given the pace at which the Closing Loopholes reforms were passed, it is unsurprising that there is inconsistency in the publicly available commentary regarding the application of the new wage theft offence (some of which are unclear or even contain ‘blanket’ statements that superannuation payments fall outside of its operation).

However, for the vast majority of Australian employers and employees – superannuation contributions – (and other required amounts) are squarely within scope of the criminal wage theft offence.

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The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

[1] Paragraph 988 of the Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth).