Wage Theft Act 2020 (Vic)

Version No. 002

Wage Theft Act 2020

No. 21 of 2020

Version incorporating amendments as at

1 July 2022

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

4Act binds the Crown

5Application of Act

Part 2—Wage theft offences

6Dishonest withholding of employee entitlements

7Falsification of employee entitlement record

8Failure to keep employee entitlement record

9Complicity in commission of offence

10Body corporate liability for offence by officer

11Attribution to body corporate of conduct, knowledge, intention and belief of officers and associates

12Factors relevant to corporate culture in body corporate

13Officers' liability for employee entitlement offence

14Offences by partnerships and partners

15Offences by unincorporated associations

16Responsible agency for the Crown

17Proceedings against successors to public bodies

18Maximum fine for body corporate for indictable offence heard and determined summarily

Part 3—Wage Inspectorate Victoria and Commissioner

Division 1—The Wage Inspectorate Victoria

19Establishment of the Wage Inspectorate Victoria

20Functions of the Wage Inspectorate Victoria

21Powers of the Wage Inspectorate Victoria

22Guiding principles of the Wage Inspectorate Victoria

23Staff of the Wage Inspectorate Victoria

24Ministerial directions

Division 2—Commissioner of the Wage Inspectorate Victoria

25Appointment of Commissioner

26Terms and conditions of appointment

27Vacancy and resignation

28Removal from office

29Acting appointment

30Functions and powers of Commissioner

31Power to delegate

Part 4—Investigations by the Wage Inspectorate Victoria

Division 1—Investigating employee entitlement offences

32Wage Inspectorate Victoria may investigate possible employee entitlement offences

Division 2—Inspectors

33Appointment of inspectors

34Identity cards

35Inspectors subject to Wage Inspectorate Victoria's directions

36Inspectors may perform functions and exercise powers for certain purposes

37Inspectors may exercise powers only at certain premises

Division 3—Entry, search and seizure with consent

38Entry, search and seizure with consent

39Entry of premises open to the public

Division 4—Entry, search and seizure without consent or warrant

40Limited power of entry, search and seizure without consent or search warrant

41Notice requirements

42Report to Victorian Inspectorate

43Entry without consent or warrant

Division 5—Entry, search and seizure with search warrant

44Search warrants

45Form and content of search warrants

46Announcement before entry

47Seizure of document or other things not described in the warrant

Division 6—Production of documents and records

48Power to require production of documents and answer questions

49Privilege against self-incrimination abrogated in respect of production of documents

Division 7—Retention and return of seized document or other things

50Retention and return of seized documents or things

51Magistrates' Court may extend 3 month period

Division 8—Power of the Wage Inspectorate Victoria to require attendance, etc.

52Wage Inspectorate Victoria may compel production of documents and other things or attendance

53Additional notice requirements

54Report to Victorian Inspectorate

55Privilege against self-incrimination abrogated in respect of production of documents

56Notice given to person under 16 years

57Provisions relating to attendances

58Audio or video recording of attendances

59Power to take evidence on oath or affirmation

60Powers in relation to documents and other things

61Legal representation of persons attending and other persons

62Part does not require disclosure of privileged information

Part 5—General matters

Division 1—Enforceable undertakings

63Wage Inspectorate Victoria may accept an undertaking

64Certain actions prohibited while undertaking is in force or is complied with

65Failure to comply with enforceable undertakings

Division 2—Offences

66Offences relating to hindering or obstructing inspectors, etc.

67Offence relating to allowing entry of person assisting an inspector

68Offence to fail to take oath, make affirmation or answer question

69Offence for failure to attend, etc.

70Offence to give false or misleading information

Division 3—Referrals

71Referral to the Office of Public Prosecutions

72Consultation prior to referral

73Information to be provided with referral

Division 4—Other general matters

74Validity of acts and decisions

75Immunity for carrying out functions

76Prohibition of discrimination against a person for complying with Act

77Confidentiality

78Conduct of officers, employees and agents of bodies corporate

Division 5—Regulations

79Regulations

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Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 002

Wage Theft Act 2020

No. 21 of 2020

Version incorporating amendments as at

1 July 2022

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to create offences relating to the theft of employee entitlements and the keeping of records relating to employee entitlements; and

(b)to establish the Wage Inspectorate Victoria; and

(c)to provide for the functions and powers of the Wage Inspectorate Victoria in relation to investigating and enforcing employee entitlement offences and related matters; and

(d)to make consequential amendments of other Acts.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 July 2021, it comes into operation on that day.

3Definitions

(1)In this Act—

associate, in relation to a body corporate, means an employee or agent of the body corporate to the extent that the person is acting within the actual or apparent scope of the person's employment or within the person's actual or apparent authority;

board of directors, in relation to a body corporate, means the body (by whatever name called) exercising the executive authority of the body corporate;

Commissioner means the Commissioner of the Wage Inspectorate Victoria appointed under section 25(2);

corporate culture, in relation to an employer that is not a natural person, 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 the relevant intention is formed;

employee, in relation to an employer, means a person who is or has been employed by the employer;

employee entitlement means an amount payable by an employer to or in respect of an employee, or any other benefit payable or attributable by an employer to or in respect of an employee, including wages or salary, allowances and gratuities, and the attribution of annual leave, long service leave, meal breaks and superannuation—

(a)in accordance with the relevant laws, contracts and agreements; or

(b)if the amount or benefit under a contract or agreement is less than the minimum amount or benefit required under the relevant laws, in accordance with the relevant laws; or

(c)if the amount or benefit under a contract or agreement is more than the minimum amount or benefit required under the relevant laws, in accordance with the contract or agreement that applies to the employee;

employee entitlement offence means—

(a)an offence against section 6(1), 6(7), 7(1), 7(2), 8(1) or 8(2); or

(b)an offence against section 321, 321G or 321M of the Crimes Act 1958 in relation to an offence referred to in paragraph (a); or

(c)an offence against section 257(1) of the Crimes Act 1958 in relation to a criminal investigation of, or criminal proceeding for—

(i)an offence referred to in paragraph (a); or

(ii)an offence referred to in paragraph (b);

employee entitlement record means a record of an employee entitlement;

employer means a natural person, body corporate, partnership, unincorporated association or other entity that employs or has employed another person;

inspector means an inspector appointed under section 33;

Office of Public Prosecutions means the Office of Public Prosecutions established under the Public Prosecutions Act 1994;

officer—

(a)in relation to a body corporate that is a corporation within the meaning of the Corporations Act, means an officer of the corporation within the meaning of section 9 of that Act; or

(b)in relation to an entity that is neither a natural person nor a corporation, means—

(i)if the entity is a body corporate that is not a corporation within the meaning of the Corporations Act, a member of the board of directors of the body corporate; or

(ii)if the entity is a partnership (other than a partnership that is incorporated or is otherwise a separate legal entity), a partner in the partnership; or

(iii)if the entity is an unincorporated association, an office holder of the unincorporated association; or

(iv)a person who   makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or

(v)a person who has the capacity to affect significantly the entity's financial standing;

privilege means—

(a)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

(b)public interest immunity;

registered office, in relation to a body corporate, has the meaning given by section 9 of the Corporations Act;

undertaking means an undertaking under section 63;

Victorian Inspectorate means the Victorian Inspectorate established under the Victorian Inspectorate Act 2011;

Wage Inspectorate Victoria means the Wage Inspectorate Victoria established under section 19;

withhold means fail to pay, distribute or attribute or otherwise deprive, whether directly or indirectly, and includes—

(a)fail to pay, distribute or attribute to a third party; and

(b)make an unlawful deduction or require the payment of an unlawful fee or other charge; and

(c)require the payment of an amount to the employer from the employee entitlements;

workplace includes residential premises where work is carried out, but does not include a part of any premises that is the domestic home of a person.

(2)For the purposes of this Act—

(a)the following persons are taken to be employed by the Crown under a contract of service—

(i)a police officer within the meaning of the Victoria Police Act 2013;

(ii)a police reservist within the meaning of the Victoria Police Act 2013;

(iii)a protective services officer within the meaning of the Victoria Police Act 2013; and

(b)despite any rule of law to the contrary, the contract of service and the relationship of employer and employee is to be taken to exist between the Crown and each of those persons in respect of the performance of the duties and exercise of the powers as such a person (whether arising at common law, under statute, by the instructions of superiors or otherwise).

(3)For the purposes of this Act, a reference to the owner or occupier of premises includes a reference to the following—

(a)a person authorised by the owner or occupier to receive correspondence directed to the owner or occupier;

(b)a person who apparently represents the owner or occupier.

4Act binds the Crown

(1)This Act binds the Crown—

(a)in right of the State of Victoria; and

(b)to the extent that the legislative power of the Parliament permits, in all its other capacities.

(2)To avoid doubt, the Crown is a body corporate for the purposes of this Act.

5Application of Act

(1)This Act applies to employee entitlements that are paid, payable or attributable by an employer for or in relation to services that are performed by an employee—

(a)wholly in Victoria; or

(b)in 2 or more Australian jurisdictions, or partly in one or more Australian jurisdictions and partly outside Australia if—

(i)the employee is based in Victoria; or

(ii)the employer is based in Victoria and the employee is based outside Australia; or

(iii)the employee entitlements are paid, payable or attributable in Victoria and both the employer and the employee are based outside Australia; or

(iv)the employee entitlements are paid, payable or attributable in an Australian jurisdiction for services performed mainly in Victoria and both the employer and the employee are based outside Australia; or

(c)wholly outside Australia if the employee entitlements are paid, payable or attributable in Victoria.

(2)In subsection (1)—

Australian jurisdiction means an Australian State or a Territory.

(3)This Act applies to employee entitlements irrespective of when the entitlements accrue or have accrued.

Part 2—Wage theft offences

6Dishonest withholding of employee entitlements

(1)An employer must not dishonestly—

(a)withhold the whole or part of an employee entitlement owed by the employer to an employee; or

(b)authorise or permit, expressly or impliedly, another person to withhold the whole or part of an employee entitlement owed by the employer to an employee and that other person does so.

Penalty:In the case of a body corporate, 6000 penalty units;

In any other case, level 5 imprisonment (10 years maximum).

(2)In determining whether a withholding is dishonest under subsection (1), consent by or on behalf of the employee to the withholding is irrelevant if the withholding reduces the employee entitlement to less than the minimum amount or benefit required under the relevant laws.

(3)For the purposes of subsection (1)(b), the means by which authorisation or permission may be established include any of the following—

(a)proving that the employer or an officer of the employer gave that authorisation or permission, whether expressly or impliedly;

(b)in the case of an employer that is a body corporate, proving that the employer's board of directors gave that authorisation or permission, whether expressly or impliedly;

(c)in the case of an employer that is not a natural person, proving that a corporate culture existed within the employer that directed, encouraged, tolerated or led to the relevant conduct being carried out.

(4)Subsection (3)(a) does not apply if the employer proves that it exercised due diligence to prevent the authorisation or permission being given.

(5)It is a defence to a charge for an offence against subsection (1) if the employer proves that, before the alleged offence, the employer had exercised due diligence to pay or attribute the employee entitlements to the employee.

(6)For the purposes of subsection (5), evidence that the employer failed to comply with a requirement of a regulator is evidence that the employer had not taken all reasonable steps to pay or attribute the employee entitlements to the employee.

(7)An officer of an employer must not dishonestly—

(a)withhold the whole or part of an employee entitlement owed by the employer to an employee; or

(b)authorise or permit, expressly or impliedly, another person to withhold the whole or part of an employee entitlement owed by the employer to an employee and that other person does so.

Penalty:Level 5 imprisonment (10 years maximum).

(8)In determining whether a withholding is dishonest under subsection (7), consent by or on behalf of the employee to the withholding is irrelevant if the withholding reduces the employee entitlement to less than the minimum amount or benefit required under the relevant laws.

(9)For the purposes of subsection (7)(b), the means by which authorisation or permission may be established include proving that the officer directed, encouraged or tolerated the relevant conduct being carried out.

(10)It is a defence to a charge for an offence against subsection (7) if the officer proves that, before the alleged offence, the officer had exercised due diligence to pay or attribute the employee entitlements to the employee.

(11)In this section—

dishonest means dishonest according to the standards of a reasonable person.

Note

See section 11 for attribution to a body corporate of physical and fault elements of the offence.

7Falsification of employee entitlement record

(1)An employer must not falsify, or expressly or impliedly authorise or permit another person to falsify, an employee entitlement record in respect of an employee with a view to dishonestly—

(a)obtaining a financial advantage for the employer or another person; or

(b)preventing the exposure of a financial advantage obtained by the employer or another person.

Penalty:In the case of a body corporate, 6000 penalty units;

In any other case, level 5 imprisonment (10 years maximum).

(2)An officer of an employer must not falsify, or expressly or impliedly authorise or permit another person to falsify, an employee entitlement record in respect of an employee with a view to dishonestly—

(a)obtaining a financial advantage for the employer or another person; or

(b)preventing the exposure of a financial advantage obtained by the employer or another person.

Penalty:Level 5 imprisonment (10 years maximum).

(3)In determining whether the obtaining of a financial advantage is dishonest, consent by or on behalf of the employee to a reduction of the employee's entitlement is irrelevant if the employee entitlement so reduced is less than the minimum amount or benefit required under the relevant laws.

(4)For the purposes of subsection (1), the means by which authorisation or permission may be established include any of the following—

(a)proving that the employer or an officer of the employer gave that authorisation or permission, whether expressly or impliedly;

(b)in the case of an employer that is a body corporate, proving that the employer's board of directors gave that authorisation or permission, whether expressly or impliedly;

(c)in the case of an employer other than a natural person, proving that a corporate culture existed within the employer that directed, encouraged, tolerated or led to the relevant conduct being carried out.

(5)Subsection (4)(a) does not apply if the employer proves that it exercised due diligence to prevent the authorisation or permission being given.

(6)For the purposes of subsection (2), the means by which authorisation or permission may be established include proving that the officer directed, encouraged or tolerated the relevant conduct being carried out.

(7)In this section—

dishonest means dishonest according to the standards of a reasonable person;

falsify, in relation to a record, includes—

(a)produce or make a record that is misleading, false or deceptive in a material particular; and

(b)copy a record that is misleading, false or deceptive in a material particular; and

(c)alter a record in such a way that causes the record to be misleading, false or deceptive in a material particular; and

(d)provide information that causes a record to be misleading, false or deceptive in a material particular.

Note

See section 11 for attribution to a body corporate of physical and fault elements of the offence.

8Failure to keep employee entitlement record

(1)An employer must not fail to keep, or expressly or impliedly authorise or permit another person to fail to keep, an employee entitlement record in respect of an employee with a view to dishonestly—

(a)obtaining a financial advantage for the employer or another person; or

(b)preventing the exposure of a financial advantage obtained by the employer or another person.

Penalty:In the case of a body corporate, 6000 penalty units;

In any other case, level 5 imprisonment (10 years maximum).

(2)An officer of an employer must not fail to keep, or expressly or impliedly authorise or permit another person to fail to keep, an employee entitlement record in respect of an employee with a view to dishonestly—

(a)obtaining a financial advantage for the employer or another person; or

(b)preventing the exposure of a financial advantage obtained by the employer or another person.

Penalty:Level 5 imprisonment (10 years maximum).

(3)In determining whether the obtaining of a financial advantage is dishonest, consent of the employee to a reduction of the employee's entitlement is irrelevant if the employee entitlement so reduced is less than the minimum amount or benefit required under the relevant laws.

(4)For the purposes of subsection (1), the means by which authorisation or permission may be established include any of the following—

(a)proving that the employer or an officer of the employer gave that authorisation or permission, whether expressly or impliedly;

(b)in the case of an employer that is a body corporate, proving that the employer's board of directors gave that authorisation or permission, whether expressly or impliedly;

(c)in the case of an employer other than a natural person, proving that a corporate culture existed within the employer that directed, encouraged, tolerated or led to the relevant conduct being carried out.

(5)Subsection (4)(a) does not apply if the employer proves that it exercised due diligence to prevent the authorisation or permission being given.

(6)For the purposes of subsection (2), the means by which authorisation or permission may be established include proving that the officer directed, encouraged or tolerated the relevant conduct being carried out.

(7)In this section—

dishonest means dishonest according to the standards of a reasonable person;

fail to keep a record includes—

(a)not make a record; and

(b)destroy, deface or conceal a record.

Note

See section 11 for attribution to a body corporate of physical and fault elements of the offence.

9Complicity in commission of offence

Subdivision (1) of Division 1 of Part II of the Crimes Act 1958 does not apply to   a person who—

(a)acts under the direction of the employer; and

(b)is not an officer of the employer.

10Body corporate liability for offence by officer

(1)If an officer of a body corporate commits an employee entitlement offence, the body corporate must be taken to have also committed the offence and may be prosecuted and found guilty of the offence, whether or not the officer has been prosecuted for or found guilty of the offence.

(2)In a prosecution of a body corporate for an employee entitlement offence brought in reliance on subsection (1), it is a defence to the charge for the body corporate to prove that it exercised due diligence to prevent the commission of the offence by the officer.

11Attribution to body corporate of conduct, knowledge, intention and belief of officers and associates

(1)For the purposes of a proceeding against a body corporate for an employee entitlement offence—

(a)relevant conduct engaged in by an officer of the body corporate to the extent that the officer is acting within the actual or apparent scope of the officer's employment or within the officer's actual or apparent authority must also be attributed to the body corporate; and

(b)knowledge or intention of, or a belief held by, any of the following must also be attributed to the body corporate—

(i)the board of directors of the body corporate;

(ii)an officer of the body corporate.

(2)For the purposes of a proceeding against a body corporate for an employee entitlement offence—

(a)relevant conduct engaged in by an associate of the body corporate must also be attributed to the body corporate if—

(i)an officer of the body corporate or the board of directors of the body corporate authorised or permitted the relevant conduct to be carried out, whether expressly or impliedly; or

(ii)a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the relevant conduct being carried out; and

(b)knowledge or intention of, or a belief held by, an associate of the body corporate must also 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.

(3)It is not necessary that each element of an employee entitlement offence that is attributed to a body corporate by force of this section be supplied by the same officer or associate of the body corporate.

(4)In this section—

engage in conduct includes fail or refuse to engage in conduct.

12Factors relevant to corporate culture in body corporate

Factors relevant to the issue of whether a corporate culture existed within a body corporate include the following—

(a)whether authority to commit the offence charged or an offence of a similar character had been given by an officer of the body corporate;

(b)whether the associate of the body corporate who carried out the relevant conduct or formed the relevant intention believed on reasonable grounds, or entertained a reasonable expectation, that an officer of the body corporate would have authorised or permitted the relevant conduct being carried out with the relevant intention.

13Officers' liability for employee entitlement offence

(1)If a body corporate commits an employee entitlement offence, each officer of the body corporate must be taken to have also committed the offence and may be prosecuted and found guilty of the offence, whether or not the body corporate has been prosecuted for or found guilty of the offence.

(2)In a prosecution of an officer of a body corporate for an employee entitlement offence brought in reliance on subsection (1), it is a defence to the charge for the officer to prove that the officer exercised due diligence to prevent the commission of the offence by the body corporate.

(3)If an officer of a body corporate is convicted of an employee entitlement offence and, but for this section, the officer would not have been convicted of the offence, the officer is not liable to be sentenced to imprisonment for that offence.

14Offences by partnerships and partners

(1)If this Act provides that an employer that is a partnership commits an employee entitlement offence, the reference to the employer is to be read as a reference to—

(a)each partner in the partnership; or

(b)in the case of a partnership in which any partner has under the law of the place where it is formed limited liability for the liabilities of the partnership, each partner in the partnership whose liability is not so limited.

(2)If an employer who is a partner in a partnership commits an employee entitlement offence (other than because of subsection (1)) in the course of the activities of the partnership, the following also commit the employee entitlement offence—

(a)each other partner in the partnership;

(b)in the case of a partnership in which any partner has under the law of the place where it is formed limited liability for the liabilities of the partnership, each other partner in the partnership whose liability is not so limited.

(3)It is a defence to a charge for an offence against a partner for the partner to prove that the partner exercised due diligence to avoid the commission of the offence.

(4)If a partner is convicted of an employee entitlement offence and, but for this section, the partner would not have been convicted of the offence, the partner is not liable to be sentenced to imprisonment for that offence.

(5)This section does not apply in relation to a partnership that is incorporated or is otherwise a separate legal entity.

15Offences by unincorporated associations

(1)If this Act provides that an employer that is an unincorporated association commits an employee entitlement offence, the reference to the employer is to be read as a reference to each member of the committee of management of the association.

(2)If a person who is 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 also commits the offence.

(3)It is a defence to a charge brought under subsection (1) or (2) if the person charged proves that the person exercised due diligence to avoid the commission of the offence.

(4)If a person is convicted of an employee entitlement offence and, but for this section, the person would not have been convicted of the offence, the person is not liable to be sentenced to imprisonment for that offence.

16Responsible agency for the Crown

(1)If a proceeding is brought against the Crown for an employee entitlement offence, the responsible agency in respect of the offence may be specified in any document commencing or relating to the proceeding.

(2)The responsible agency in respect of an employee entitlement offence is entitled to act in a proceeding against the Crown for the offence and, subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused in the proceeding are conferred or imposed on the responsible agency.

(3)The person prosecuting the offence may change the responsible agency during the proceeding with the leave of the court.

(4)In this section—

responsible agency in respect of an offence means the agency of the Crown—

(a)whose acts or omissions are alleged to constitute the offence; or

(b)if that agency has ceased to exist, that is the successor of that agency; or

(c)if that agency has ceased to exist and there is no clear successor, that the court declares to be the responsible agency.

17Proceedings against successors to public bodies

(1)A proceeding for an employee entitlement offence that was commenced against a public body before its dissolution, or that could have been commenced against a public body if not for its dissolution, may be continued or commenced against its successor if the successor is a public body.

(2)In this section—

public body means—

(a)a body corporate representing the Crown; or

(b)a State owned enterprise or reorganising body (within the meaning of the State Owned Enterprises Act 1992); or

(c)a Council (within the meaning of the Local Government Act 2020); or

(d)a public entity (within the meaning of the Public Administration Act 2004).

18Maximum fine for body corporate for indictable offence heard and determined summarily

If a body corporate is found guilty by the Magistrates' Court in a summary hearing of an offence against section 6(1), 7(1) or 8(1), the maximum fine that the court may impose on the body corporate for the offence is 2500 penalty units.

Part 3—Wage Inspectorate Victoria and Commissioner

Division 1—The Wage Inspectorate Victoria

19Establishment of the Wage Inspectorate Victoria

(1)The Wage Inspectorate Victoria is established.

(2)The Wage Inspectorate Victoria—

(a)is a body corporate with perpetual succession; and

(b)must have an official seal; and

(c)may sue and be sued in its corporate name; and

(d)may acquire, hold and dispose of real and personal property for the purpose of performing its functions; and

(e)may do and suffer all acts and things that bodies corporate may by law do and suffer and that are necessary or incidental for the performance of its functions.

20Functions of the Wage Inspectorate Victoria

(1)The Wage Inspectorate Victoria has the following functions—

(a)to inform, educate and assist people in relation to their rights and obligations under this Act;

(b)to promote, monitor and enforce compliance with this Act and the regulations;

(c)to investigate the commission or possible commission of employee entitlement offences and related matters;

(d)to bring criminal proceedings in relation to alleged employee entitlement offences;

(e)to work with the Office of Public Prosecutions in respect of criminal proceedings in relation to alleged employee entitlement offences;

(f)to develop and publish guidelines in relation to this Act;

(g)to perform functions necessary for the administration of this Act;

(h)to provide advice and report to the Minister on the guidelines or any other matter referred to the Wage Inspectorate Victoria by the Minister;

(i)to engage in, promote and coordinate the sharing of information with other government agencies and bodies, including agencies and bodies of the government of the Commonwealth or another State or a Territory, for the purposes of this Act;

(j)to disseminate information about the duties, rights and obligations of persons under this Act and the regulations;

(k)to refer matters, as appropriate, to other bodies;

(l)any other function conferred on the Wage Inspectorate Victoria by this or any other Act.

(2)The Wage Inspectorate Victoria has all the powers that are necessary or convenient to perform its functions under this or any other Act.

21Powers of the Wage Inspectorate Victoria

(1)The Wage Inspectorate Victoria has power to do all things that are necessary or convenient to be done for or in connection with the performance of its duties and functions.

(2)Without limiting subsection (1), the Wage Inspectorate Victoria has and may exercise the functions and powers of an inspector.

22Guiding principles of the Wage Inspectorate Victoria

The Wage Inspectorate Victoria, in carrying out a function or power under this or any other Act, must—

(a)act in a fair, impartial and independent manner; and

(b)act in a manner that is transparent, accountable and consistent; and

(c)act in a consultative and collaborative manner to the extent that is consistent with the carrying out of a function or power.

23Staff of the Wage Inspectorate Victoria

(1)There may be employed under Part 3 of the Public Administration Act 2004 any employees that are necessary for the administration of this Act or to enable the Wage Inspectorate Victoria to perform its functions and exercise its powers.

(2)The Wage Inspectorate Victoria may engage consultants, contractors or agents for or in connection with the performance of the Wage Inspectorate Victoria's functions.

(3)The Wage Inspectorate Victoria may 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 the Wage Inspectorate Victoria's functions and powers under this Act.

(4)An agreement or arrangement under subsection (3) may be on any terms and conditions that the Wage Inspectorate Victoria is satisfied are appropriate.

24Ministerial directions

(1)The Minister may give general written directions to the Wage Inspectorate Victoria about the performance of the functions of the Wage Inspectorate Victoria, except in relation to the following—

(a)the investigation or prosecution of an employee entitlement offence;

(b)the employment or engagement (however described) of employees, consultants or other persons under section 23(1), (2) or (3).

(2)The Minister, in writing, may direct the Wage Inspectorate Victoria to give the Minister reports on specified matters relating to the Wage Inspectorate Victoria's functions.

(3)The Wage Inspectorate Victoria must comply with a direction given under subsection (2) within a reasonable time.

Division 2—Commissioner of the Wage Inspectorate Victoria

25Appointment of Commissioner

(1)There is to be a Commissioner of the Wage Inspectorate Victoria.

(2)The Governor in Council, on the recommendation of the Minister, may by instrument appoint a person to be the Commissioner.

26Terms and conditions of appointment

(1)The Commissioner—

(a)holds office for a term, not exceeding 5 years, that is specified in the instrument of appointment; and

(b)is eligible for reappointment; and

(c)may be appointed on a full-time or part-time basis; and

(d)holds office on the terms and conditions that are specified in the instrument of appointment.

(2)The Commissioner is entitled to be paid the remuneration and allowances that are fixed from time to time by the Governor in Council.

27Vacancy and resignation

The Commissioner ceases to hold office if the Commissioner—

(a)resigns by writing signed and delivered to the Governor; or

(b)becomes insolvent under administration; or

(c)is convicted of an indictable offence or of an offence that, if committed in Victoria, would be an indictable offence; or

(d)nominates for election for or is elected to—

(i)the Parliament of Victoria; or

(ii)the Parliament of the Commonwealth or of another State or a Territory of the Commonwealth; or

(iii)a Council, within the meaning of the Local Government Act 2020; or

(e)is removed from office under section 28.

28Removal from office

The Governor in Council, on the recommendation of the Minister, may remove the Commissioner from office on any of the following grounds—

(a)neglect of the Commissioner in carrying out the duties of the office;

(b)misconduct by the Commissioner in carrying out the duties of the office;

(c)inability of the Commissioner to perform the duties of the office;

(d)a conflict of interest of the Commissioner when carrying out the duties of the office;

(e)the Commissioner engaging in paid employment outside of the duties of the office without the consent of the Minister.

29Acting appointment

(1)The Governor in Council, on the recommendation of the Minister, may appoint a person to act as the Commissioner—

(a)during a vacancy in the office of the Commissioner; or

(b)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 of Commissioner.

(2)A person appointed under subsection (1) is entitled to the remuneration and allowances that are determined from time to time by the Governor in Council.

(3)While a person is acting as the Commissioner, the person has all the powers and may perform any of the functions of the Commissioner.

(4)The Governor in Council, on the recommendation of the Minister, may revoke an appointment under subsection (1) at any time.

30Functions and powers of Commissioner

(1)The Commissioner—

(a)has all the duties, functions and powers of the Wage Inspectorate Victoria; and

(b)has any other duties, functions and powers conferred on the Commissioner under this Act or any other Act.

(2)The Commissioner—

(a)is responsible for undertaking the strategic leadership of the Wage Inspectorate Victoria for the purposes of this Act; and

(b)is the public service body Head of the Wage Inspectorate Victoria for the purposes of section 16 of the Public Administration Act 2004.

(3)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.

31Power to delegate

The Commissioner, by instrument in writing, may delegate to any person referred to in section 23(1) any function or power of the Commissioner under this Act (including a function or power referred to in paragraph 30(1)(a)), or under any other Act, other than this power of delegation.

Part 4—Investigations by the Wage Inspectorate Victoria

Division 1—Investigating employee entitlement offences

32Wage Inspectorate Victoria may investigate possible employee entitlement offences

(1)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.

(2)The Wage Inspectorate Victoria may discontinue investigating the commission or possible commission of an employee entitlement offence at any time.

(3)The Wage Inspectorate Victoria may commence proceedings for an employee entitlement offence if the Wage Inspectorate Victoria considers it desirable to do so.

(4)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.

(5)Nothing in this section requires the Wage Inspectorate Victoria to investigate the commission or possible commission of an employee entitlement offence.

Division 2—Inspectors

33Appointment of inspectors

(1)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 Act.

(2)The Wage Inspectorate Victoria must give each inspector a certificate of appointment signed by the Commissioner.

(3)A certificate of appointment given to an inspector in accordance with subsection (2) is conclusive proof of the valid appointment of the inspector under this section.

(4)The Wage Inspectorate Victoria may, by instrument, revoke an appointment under subsection (1) at any time.

34Identity cards

(1)The Wage Inspectorate Victoria must issue an identity card to each inspector containing a photograph of the inspector and the inspector's signature.

(2)An inspector must—

(a)carry the inspector's identity card when performing functions or exercising powers of an inspector; and

(b)produce the inspector's identity card for inspection—

(i)before exercising a power under this Part, other than a power exercised by way of post; and

(ii)at any time during the exercise of a power under this Part, if asked to do so.

Penalty:12 penalty units.

(3)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.

Penalty:12 penalty units.

35Inspectors subject to Wage Inspectorate Victoria's directions

(1)An inspector is subject to the Wage Inspectorate Victoria's directions in the performance of the inspector's functions or exercise of the inspector's powers under this Act or the regulations.

(2)A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter.

36Inspectors may perform functions and exercise powers for certain purposes

An inspector may perform functions and exercise powers under this Part for a purpose relating to the investigation of the commission or possible commission of an employee entitlement offence.

37Inspectors may exercise powers only at certain premises

An inspector may exercise powers under this Part of entry, search and seizure and powers to require a person to answer questions or produce documents only at the following premises—

(a)a workplace;

(b)the registered office of a body corporate;

(c)premises at which work is carried out, or records are kept, which the inspector reasonably believes may be relevant to the commission or possible commission of an employee entitlement offence.

Division 3—Entry, search and seizure with consent

38Entry, search and seizure with consent

(1)An inspector may, with the consent of the owner or occupier of premises, do one or more of the following—

(a)enter and search the premises;

(b)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;

(c)inspect and make copies of, or take extracts from, any document found on the premises;

(d)make any still or moving image, audio recording or audiovisual recording.

(2)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—

(a)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

(b)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

(c)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.

(3)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 subsection (2).

(4)If an owner or occupier consents to the seizure or taking of any document or other thing during a search under this section, the inspector must, before seizing or taking the document or other thing, ask the owner or occupier to sign an acknowledgement stating—

(a)that the owner or occupier has consented to the seizure or taking of the document or other thing; and

(b)the date and time that the owner or occupier consented.

(5)An owner or occupier who signs an acknowledgement must be given a copy of the signed acknowledgement before the inspector leaves the premises.

39Entry of premises open to the public

An inspector may enter and inspect any part of a premises that at the time of entry and inspection is open to the public.

Division 4—Entry, search and seizure without consent or warrant

40Limited power of entry, search and seizure without consent or search warrant

An inspector may enter premises without consent and without a search warrant if—

(a)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

(b)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 section 38; and

(c)either—

(i)a notice that complies with section 41 has been given to the owner or occupier of the premises at least 5 business days before the entry; or

(ii)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

(d)the inspector enters the premises at a reasonable time.

41Notice requirements

(1)A notice given by an inspector under section 40(c)(i) must state—

(a)that the inspector proposes to enter the premises specified in the notice on the day specified in the notice; and

(b)the employee entitlement offence or offences in respect of which the inspector reasonably believes there are relevant documents or other things or persons at the premises; and

(c)that it is an offence not to comply with the notice; and

(d)any matters prescribed by the regulations.

(2)If the owner or occupier of the premises is a natural person, the notice must be given to the person personally.

(3)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.

42Report to Victorian Inspectorate

(1)If an inspector gives a notice under section 40(c)(i) to an owner or occupier, or enters premises in accordance with section 40(c)(ii) without giving a notice, the inspector must give a written report to the Victorian Inspectorate specifying—

(a)the name of the owner or occupier to whom the notice was given or whose premises were entered, as the case requires; and

(b)the reasons for giving the notice or entering the premises without giving a notice, as the case requires.

(2)The report must be given to the Victorian Inspectorate within 7 business days after the notice was given to the owner or occupier or the premises were entered, as the case requires.

43Entry without consent or warrant

An inspector who enters premises under section 40 may do all or any of the following—

(a)search the premises and inspect or examine any document or other thing on the premises;

(b)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;

(c)make copies of, or take extracts from, any document or part of a document kept on the premises;

(d)make any still or moving image, audio recording or audiovisual recording on the premises.

Division 5—Entry, search and seizure with search warrant

44Search warrants

(1)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.

(2)An application under subsection (1) must not be made without the written approval of the Wage Inspectorate Victoria.

(3)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.

45Form and content of search warrants

(1)A search warrant issued under section 44(3) 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—

(a)to enter the premises specified in the warrant, by force if necessary;

(b)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—

(i)to search for the document or other thing; and

(ii)to seize the document or other thing; and

(iii)to secure the document or other thing against interference; and

(iv)to examine and inspect the document or other thing; and

(v)to make copies of, or take extracts from, the document or other thing.

(2)A search warrant issued under section 44(3) must state—

(a)the purpose for which the search is required; and

(b)any condition to which the warrant is subject; and

(c)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

(d)a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.

(3)Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants issued under section 44(3).

46Announcement before entry

(1)On executing a search warrant, the inspector executing the warrant—

(a)must announce that the inspector is authorised by the warrant to enter the premises; and

(b)must give any person at the premises an opportunity to allow entry to the premises.

(2)An inspector need not comply with subsection (1) if the inspector believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a)the safety of any person; or

(b)that the effective execution of the search warrant is not frustrated.

(3)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.

(4)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.

47Seizure of document or other things not described in the warrant

A search warrant issued under section 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—

(a)the inspector believes, on reasonable grounds, that the document or other thing—

(i)is of a kind which could have been included in a search warrant issued under this Division; or

(ii)is evidence of an employee entitlement offence; and

(b)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

48Power to require production of documents and answer questions

(1)An inspector who enters premises under this Part may do the following—

(a)require a person at the premises to produce a document or part of a document and examine that document or part;

(b)require a person at the premises to answer any questions put by the inspector.

(2)A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1).

Penalty:Level 7 fine (240 penalty units maximum).

(3)Before requiring a person to produce a document or part of a document under subsection (1), an inspector—

(a)must warn the person that a refusal or failure to comply with the requirement, without reasonable excuse, is an offence; and

(b)must inform the person of the nature and effect of section 49 (which deals with the privilege against self-incrimination).

(4)Before requiring a person to answer questions under subsection (1), an inspector—

(a)must warn the person that a refusal or failure to comply with the requirement, without reasonable excuse, is an offence; and

(b)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.

(5)A person is not liable to be prosecuted for an offence against subsection (2) if the inspector concerned failed to comply with subsection (3) or (4) as the case requires.

(6)Despite section 7 of the Criminal Procedure Act 2009, a proceeding for an offence against this section must be commenced within 3 years after the date on which the Wage Inspectorate Victoria becomes aware that an offence has been committed.

49Privilege against self-incrimination abrogated in respect of production of documents

(1)A person is not excused from producing a document as and when required by or under section 48 on the ground that the production of the document might incriminate the person.

(2)A document produced by a natural person under section 48 is not admissible in evidence against the person in criminal proceedings unless—

(a)the person, or the owner or occupier of the premises concerned, is required by law to keep the document; or

(b)the proceedings are in respect of an alleged offence against section 70 or an offence against section 257(1), 321, 321G or 321M of the Crimes Act 1958 in relation to an offence against section 70; or

(c)the proceedings are in respect of false or misleading information included in the document or the making of a false or misleading statement.

(3)Subsection (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 section 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

50Retention and return of seized documents or things

(1)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.

(2)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.

(3)A copy of a document certified under subsection (2) must be received in all courts and VCAT to be evidence of equal validity to the original.

(4)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—

(a)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

(b)the Magistrates' Court makes an order under section 51 extending the period during which the document or other thing may be retained.

51Magistrates' Court may extend 3 month period

(1)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—

(a)within 3 months after the document or other thing is seized under this Part; or

(b)if an extension has been granted under this section, before the end of the period of the extension.

(2)The Magistrates' Court may 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—

(a)for the purposes of the Wage Inspectorate Victoria investigating the commission or possible commission of an employee entitlement offence; or

(b)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 Act.

(3)The Magistrates' Court may adjourn an application to enable notice of the application to be given to any person.

Division 8—Power of the Wage Inspectorate Victoria to require attendance, etc.

52Wage Inspectorate Victoria may compel production of documents and other things or attendance

(1)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—

(a)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

(b)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—

(i)give evidence;

(ii)answer questions;

(iii)produce a specified document or other thing.

(2)A notice under subsection (1)—

(a)must be in the prescribed form (if any); and

(b)must contain the following information—

(i)a statement outlining the employee entitlement offence or offences that are being investigated;

(ii)a statement outlining the consequences of non-compliance with the notice;

(iii)any other prescribed information; and

(c)must be accompanied by a statement that sets out the matters in subsection (3); and

(d)must be given in accordance with section 53.

(3)A statement referred to in subsection (2)(c) must include the following—

(a)that failure to comply with the notice may be an offence and penalties may apply;

(b)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 section 56;

(c)that the person is entitled to seek legal advice in relation to the notice;

(d)that the person has a right to legal representation;

(e)that, if applicable, the person has a right to have an interpreter present at an attendance before the Wage Inspectorate Victoria;

(f)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;

(g)that a person may claim a privilege;

(h)the effect of section 55 (which deals with the privilege against self-incrimination in relation to the production of documents).

(4)The Wage Inspectorate Victoria must not issue a notice under subsection (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—

(a)the information, evidence, document or thing that the person could provide may be compelling and probative evidence; and

(b)it is not practicable to obtain the evidence, information, document or thing by any other means.

53Additional notice requirements

(1)A notice given under section 52(1) 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—

(a)would be likely to prejudice the investigation; or

(b)would otherwise be contrary to the public interest.

(2)A notice given to a natural person under section 52(1) must be given by giving a copy of the notice to the person personally.

(3)A notice under section 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—

(a)is apparently employed at that office or place; and

(b)is apparently at least 18 years of age.

(4)Subsection (3) is in addition to, and not in derogation of, sections 109X and 601CX of the Corporations Act.

54Report to Victorian Inspectorate

(1)If an inspector gives a notice under section 52(1) to a person, the inspector must give a written report to the Victorian Inspectorate specifying—

(a)the name of the person to whom the notice was given; and

(b)the reasons for giving the notice.

(2)The report must be given to the Victorian Inspectorate within 7 days business after the notice was given to the person.

55Privilege against self-incrimination abrogated in respect of production of documents

(1)A person is not excused from producing a document as and when required by or under section 52 on the ground that the production of the document might incriminate the person.

(2)A document produced by a natural person under section 52 is not admissible in evidence against the person in criminal proceedings unless—

(a)the person is required by law to keep the document; or

(b)the proceedings are in respect of an alleged offence against section 70 or an offence against section 257(1), 321, 321G or 321M of the Crimes Act 1958 in relation to an offence against section 70; or

(c)the proceedings are in respect of false or misleading information included in the document or the making of a false or misleading statement.

(3)Subsection (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 section 52, and any such evidence is admissible in the proceeding in accordance with the rules of evidence applicable to the proceeding.

56Notice given to person under 16 years

(1)A notice given under section 52(1) to a person aged under 16 years when the notice is given has no effect.

(2)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.

57Provisions relating to attendances

(1)This section applies if a person attends the Wage Inspectorate Victoria to give evidence or answer questions pursuant to a notice under section 52(1).

(2)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.

(3)If the person attending is aged under 18 years, the person must be accompanied by a parent, guardian or an independent person.

(4)The Wage Inspectorate Victoria must direct that an independent person be present during the attendance if—

(a)the Wage Inspectorate Victoria believes the person attending has a mental impairment; or

(b)the person attending provides the Wage Inspectorate Victoria with reasonably satisfactory medical evidence that the person has a mental impairment.

(5)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.

58Audio or video recording of attendances

(1)If a person attends the Wage Inspectorate Victoria to give evidence or answer questions pursuant to a notice under section 52(1), the Wage Inspectorate Victoria must ensure that an audio or video recording of the attendance is made.

(2)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—

(a)an audio or video recording of the attendance is made; and

(b)the audio or video recording is available to be tendered in evidence.

(3)Despite subsection (2), a court may admit evidence of anything said by the person that is otherwise inadmissible because of that subsection if the court is satisfied that there are exceptional circumstances that justify the admission of the evidence.

(4)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 a copy of—

(a)the audio or video recording; and

(b)any transcript created.

(5)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.

(6)As soon as possible after the attendance, the Wage Inspectorate Victoria must provide the Victorian Inspectorate with a copy of the audio or video recording and any transcript of the attendance.

59Power to take evidence on oath or affirmation

(1)The Wage Inspectorate Victoria may require a person attending the Wage Inspectorate Victoria to give evidence or answer questions on oath or affirmation.

(2)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 subsection (1).

60Powers in relation to documents and other things

(1)This section applies if the Wage Inspectorate Victoria may—

(a)inspect any document or other thing produced to the Wage Inspectorate Victoria; and

(b)retain the document or other thing for as long as is reasonably necessary; and

(c)copy any document or other thing produced to the Wage Inspectorate Victoria.

(2)If the retention of a document or other thing under subsection (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 appears to be entitled to the document or other thing, must cause the document or other thing to be delivered to the person.

61Legal representation of persons attending and other persons

(1)Subject to this section, a person who is given a notice under section 52(1) to attend the Wage Inspectorate Victoria is entitled to be represented by an Australian legal practitioner in respect of the attendance.

(2)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.

(3)The person attending has the same protection and immunity as a witness has in a proceeding in the Supreme Court.

62Part does not require disclosure of privileged information

Subject to sections 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

63Wage Inspectorate Victoria may accept an undertaking

(1)This section applies if a person has committed, or if the Wage Inspectorate Victoria alleges a person has committed, an employee entitlement offence.

(2)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.

(3)A person may, with the consent of the Wage Inspectorate Victoria, withdraw or amend an undertaking.

(4)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.

64Certain actions prohibited while undertaking is in force or is complied with

(1)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.

(2)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.

65Failure to comply with enforceable undertakings

(1)If the Wage Inspectorate Victoria considers that a person who gave an undertaking has failed to comply with any of its terms, the Wage Inspectorate Victoria may apply to the Magistrates' Court for an order under subsection (2) to enforce the undertaking.

(2)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—

(a)an order directing the person to comply with the undertaking;

(b)an order that the person take any specified action for the purpose of complying with the undertaking;

(c)any other order that the Magistrates' Court considers appropriate in the circumstances.

(3)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.

(4)Proceedings referred to in subsection (3) may be commenced during whichever of the following periods ends later—

(a)12 months after the determination;

(b)3 years of the date of the alleged offence.

Division 2—Offences

66Offences relating to hindering or obstructing inspectors, etc.

(1)A person must not—

(a)intentionally hinder or obstruct an inspector in the performance of the inspector's functions or exercise of the inspector's powers under this Act or the regulations, or induce or attempt to induce any other person to do so; or

(b)intentionally conceal from an inspector the location or existence of any other person or document or other thing; or

(c)intentionally prevent or attempt to prevent any other person from assisting an inspector.

Penalty:In the case of a body corporate, 300 penalty units;

In any other case, level 9 fine (60 penalty units maximum).

(2)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.

Penalty:In the case of a body corporate, level 5 fine (1200 penalty units maximum);

In any other case, level 7 imprisonment (2 years maximum).

67Offence relating to allowing entry of person assisting an inspector

(1)For the purpose of exercising a power under this Act or the regulations, an inspector may seek the assistance of any person.

(2)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—

(a)the owner or the occupier of the premises (as applicable);

(b)the person (if any) who has the management and control of the premises.

Penalty:Level 9 fine (60 penalty units maximum).

(3)If an inspector uses the assistance of an interpreter—

(a)any enquiry or request made by the interpreter on the inspector's behalf is taken to have been made by the inspector; and

(b)any answer given to the interpreter is taken to have been given to the inspector.

68Offence to fail to take oath, make affirmation or answer question

(1)A person who is given a notice under section 52(1) must not, without reasonable excuse, refuse or fail to take an oath or make an affirmation when required to do so.

Penalty:Level 7 imprisonment (2 years maximum).

(2)A person does not commit an offence against subsection (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.

69Offence for failure to attend, etc.

(1)A person who has been given a notice under section 52(1) must not, without reasonable excuse, fail to comply with the notice.

Penalty:In the case of a body corporate, 300 penalty units;

In any other case, level 7 imprisonment (2 years maximum).

(2)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.

(3)Without limiting what may be a reasonable excuse for the purposes of subsection (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—

(a)in the case of a natural person, might tend to incriminate the person or expose the person to a penalty in relation to—

(i)proceedings for an offence that have not finally been disposed of; or

(ii)proceedings for the imposition or recovery of a penalty that have been commenced against the person but not finally disposed of; or

(b)is the subject of parliamentary privilege; or

(c)is the subject of public interest immunity; or

(d)is prohibited from disclosure by a court order; or

(e)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

(f)is prohibited from disclosure by a provision of another enactment that is prescribed by the regulations.

70Offence to give false or misleading information

(1)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.

Penalty:In the case of a body corporate, level 5 fine (1200 penalty units maximum);

In any other case, level 7 imprisonment (2 years maximum).

(2)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.

Penalty:In the case of a body corporate, level 5 fine (1200 penalty units maximum);

In any other case, level 7 imprisonment (2 years maximum).

Division 3—Referrals

71Referral to the Office of Public Prosecutions

(1)If the Wage Inspectorate Victoria considers it appropriate, 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.

(2)Without limiting any matter which may be referred under this section, the Wage Inspectorate Victoria may refer any matter under investigation by the Wage Inspectorate Victoria.

72Consultation prior to referral

For the purposes of deciding whether to refer a matter under section 71 to the Office of Public Prosecutions, the Wage Inspectorate Victoria may consult with the Office of Public Prosecutions.

73Information to be provided with referral

(1)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 section 71.

(2)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—

(a)any investigation of the referred matter; and

(b)any action taken in respect of the referred matter.

Division 4—Other general matters

74Validity of acts and decisions

An act or decision of the Wage Inspectorate Victoria, the Commissioner or an Acting Commissioner is not invalid—

(a)only because of a defect or irregularity in, or in connection with, the appointment of the Commissioner or Acting Commissioner; or

(b)on the ground that the occasion for the Acting Commissioner to act had not arisen or had ceased.

75Immunity for carrying out functions

(1)The Commissioner, Acting Commissioner or another person who performs a function of the Commissioner under this Act or under any other Act is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith—

(a)in the performance of the function; or

(b)in the reasonable belief that the act or omission was in the performance of the function.

(2)Any liability resulting from an act or omission that, but for subsection (1), would attach to the Commissioner, Acting Commissioner or another person attaches instead to the Wage Inspectorate Victoria.

76Prohibition of discrimination against a person for complying with Act

(1)A person must not, by threat or intimidation, persuade or attempt to persuade another person—

(a)not to provide information under this Act; or

(b)not to continue with any process under this Act; or

(c)not to comply with any other requirement under this Act.

Penalty:In the case of a body corporate, level 6 fine (600 penalty units maximum);

In any other case, level 8 imprisonment (1 year maximum).

(2)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—

(a)intends to provide, provides or has provided information under this Act; or

(b)intends to take part in, or takes part in, or has taken part in any process under this Act; or

(c)intends to comply, complies or has complied with any other requirement under this Act.

Penalty:In the case of a body corporate, level 6 fine (600 penalty units maximum);

In any other case, level 8 imprisonment (1 year maximum).

77Confidentiality

(1)A person who obtains information in performing the person's functions or exercising the person's powers under this Act must not disclose the information unless the disclosure is authorised under this section.

Penalty:75 penalty units.

(2)A person may disclose information acquired in performing a function or exercising a power under this Act in any of the following circumstances—

(a)if the disclosure of the information is reasonably necessary for the person to perform the person's functions or exercise the person's powers under this Act;

(b)if the disclosure of the information is to a court or VCAT in the course of legal proceedings;

(c)if the disclosure of the information is under an order of a court or VCAT;

(d)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;

(e)if the disclosure of the information is with the written consent of the person to whom the information relates;

(f)if the disclosure is required by law.

(3)The Commissioner or an inspector may disclose information acquired in carrying out a function under this Act 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.

78Conduct of officers, employees and agents of bodies corporate

(1)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—

(a)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

(b)that the officer, employee or agent had that state of mind.

(2)For the purposes of this Act, 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

79Regulations

(1)The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act, to be prescribed or necessary to be prescribed, to give effect to this Act.

(2)Without limiting subsection (1), the Governor in Council may make regulations for or with respect to—

(a)matters to be included in a notice given by an inspector under section 40(1)(c); and

(b)requirements relating to proof of age for the purposes of section 56(2).

(3)The regulations—

(a)may be of general or of specially limited application; and

(b)may differ according to differences in time, place or circumstance; and

(c)may confer a discretionary authority, or impose a duty, on a specified person or body or class of person or body.

(4)Sections 6 and 7 of the Subordinate Legislation Act 1994 do not apply to the first regulations made under this section.

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Endnotes

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 19 March 2020

Legislative Council: 4 June 2020

The long title for the Bill for this Act was "A Bill for an Act to create offences relating to the theft of employee entitlements and the keeping of records relating to employee entitlements, to establish the Wage Inspectorate Victoria and for other purposes."

The Wage Theft Act 2020 was assented to on 23 June 2020 and came into operation on 1 July 2021: section 2(2).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms.  See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act.  See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act.  Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001.  Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. 
See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Wage Theft Act 2020 by Acts and subordinate instruments.

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Wage Theft Act 2020, No. 21/2020

Assent Date:	23.6.20
Commencement Date:	S. 100 on 1.7.21: s. 2(2)
Note:	S. 100 repealed Pt 6 (ss 80–100) on 1.7.22
Current State:	This information relates only to the provision/s amending the Wage Theft Act 2020

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3   Explanatory details

No entries at date of publication.