How to Talk to an Employee Who Isn’t Meeting Expectations

In a major step to protect Australian workers, the federal government criminalised wage theft under the Fair Work Legislation Amendment Act 2023. From 1 January 2025, employers who knowingly underpay employees face penalties including fines up to $7.825 million or three times the amount underpaid. Individuals could also face up to 10 years in prison. This crackdown, driven by the growing concern that wage theft costs workers up to $1.5 billion annually, aims to create a culture of fairness and accountability in Australian workplaces. To explore how these changes are playing out, Colleen Deere, Acting Branch Manager at people2people in Perth, spoke with Antonino Meduri, Principal at AM Law & Partners. Their discussion shed light on what the new laws mean for businesses, the common pitfalls that still occur, and how organisations can proactively ensure compliance. "Employers now face serious criminal penalties for deliberate underpayments" Antonino explained the law's key shift: intentional wage theft is now a criminal offence. This applies to both direct entitlements like wages and leave, and indirect ones such as superannuation. Crucially, the law distinguishes between unintentional errors and knowing breaches. "Criminal conduct doesn’t happen when an employer is careless or even reckless. It happens when they knowingly underpay while being aware of their legal obligation to pay more," Antonino clarified. The legislation introduces four major components: criminalisation of wage theft, significant financial penalties, a self-reporting pathway that may prevent prosecution, and a voluntary code for small businesses. The self-reporting mechanism, in particular, offers a pathway for businesses that uncover underpayments and cooperate with the Fair Work Ombudsman to avoid criminal charges. Common Mistakes That Still Lead to Underpayment Claims While intentional wage theft garners the most attention, Antonino noted that most underpayments stem from avoidable errors rather than malice. He highlighted several frequent mistakes: Misclassifying employees : Many errors begin with incorrect award classification, especially in sectors like hospitality and aged care. "Failing to properly consider the legal obligations under the Fair Work Act can snowball into significant liabilities," Antonino warned. Incorrect penalty rates : Employers sometimes overlook weekend or holiday rates or fail to include casual loading during leave. Assuming salaried employees are always compliant : Even when a salary appears generous, if the employee's entitlements under the award are higher, the employer must make up the difference. Unpaid work : Trials or internships where the worker performs productive tasks must be paid, regardless of how the arrangement is labelled. What Good Compliance Looks Like in 2025 Antonino stressed the importance of prevention over reaction. "Good compliance is preventative and not reactive. It's about systems, transparency, and leadership," he said. Here are the key elements he advised businesses to adopt: Accurate classification and regular reviews : Ensure employees are correctly classified under the appropriate award and reassess annually. Pay audits : Regularly verify that pay matches the hours worked and entitlements due, especially for salaried staff. Strong record-keeping : Maintain detailed wage and time records for at least seven years. These not only ensure legal compliance but also serve as vital defence documents in case of claims. Training and accountability : Keep HR and payroll teams updated on legislative changes. Define clear roles for compliance oversight. Early response : If an error is discovered, fix it promptly, pay interest, and engage the Fair Work Ombudsman where necessary. Protecting Legal and Reputational Interests  Beyond compliance, Antonino offered advice on safeguarding a company’s legal and reputational standing: Embed compliance in governance : Treat wage compliance as a leadership issue, not just a payroll task. Independent audits : An external payroll or classification audit can uncover hidden risks before they escalate. Document everything : From employee classification to wage audits, detailed documentation forms the cornerstone of a legal defence. Clear response plans : Have strategies in place for backpay, media management, and engagement with regulators. Foster a culture of integrity : Encourage staff to raise concerns, protect whistleblowers, and promote wage compliance as a shared responsibility. Antonino concluded with a warning: non-compliance can not only invite legal consequences but also drain a business's time and resources. "Being proactive and transparent isn’t just about law—it’s good business." In summary, the new wage theft laws signal a strong shift towards accountability and fairness in Australia’s labour market. Businesses that embrace this change, investing in robust systems and a culture of compliance, will not only avoid legal trouble but build trust and resilience for the future.