Fair Work (Worker Entitlements) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 September 2025.)

The Hon. B.R. HOOD (17:23): I rise today to speak on the Fair Work (Worker Entitlements) Amendment Bill 2025 and indicate that I will be the lead speaker for the opposition. We support the bill and will have two amendments to speak to. This bill is a part of the state government's election commitment to introduce wage theft laws, albeit late in their term of government. Interestingly, this amendment will only apply to the public sector, local government employees, as the rest of South Australia's workers are captured by the recently amended commonwealth legislation.

The main feature of the bill is the introduction of the civil penalty powers of the SA Employment Tribunal, providing the ability for the tribunal to impose a maximum fine of $25,000. This penalty can be ordered in addition to the owed wages and interest on those wages. The government has touted that this penalty would act as a deterrent to employees, namely, the government itself, to prevent them deliberately and systemically underpaying their employees. Whilst this bill appears to be common sense, in practice the court has discretion as to whom the civil penalties amounts will be paid to, which is a matter the opposition would like the chamber to consider.

In the recent decision of the Transport Workers' Union of Australia and Qantas Airways Limited, applying the equivalent commonwealth provision of section 104A(7) of the proposed bill, the court awarded the civil penalty of $50 million to the union who brought the action. In other cases, the court was awarded 50 per cent of the penalty to the representative and 50 per cent to the employee.

The current bill proposes that government money will be paid to the employee's legal representative, which is, in most cases, the union, as a penalty for government agencies not paying their workers appropriately. We would argue that legal costs and possible liability of those litigation costs should be a matter determined between the union and their employees or their members.

We will propose an amendment to the proposed section 104A which requires that where employees are found to have contravened section 104(1), any civil penalty imposed by the South Australian Employment Court must be paid directly to the employee affected by the breach. In other circumstances, the court retains discretion for direct penalties to the state, an organisation or another person as appropriate. This change strengthens fairness to ensure that workers who are directly wronged are the ones to receive the benefit of the penalty, rather than seeing it absorbed elsewhere.

In situations where the government agency is required to pay a wage claim as well as a civil penalty, we have been advised that these funds would come from the agency budget and declared during the budget and estimates process. Employment tribunal findings are already public, but there is concern that deliberate and systemic underpayment within government departments is not reported in a fully transparent manner, and in some cases should be reported more proactively.

We would also propose an amendment to insert a section 104D, introducing a transparency measure for cases where public sector employees are found to have contravened section 104(1). It obliges the responsible minister to table a report in parliament within six sitting days of the civil penalty being imposed, detailing the agency involved, the case reference, the penalty or penalties applied, and the costs incurred by the Crown.

This requirement ensures accountability when government agencies breach workplace entitlements, allowing both parliament and the public to scrutinise the circumstances and consequences of such contraventions. With regard to the committee stage, the opposition only has a few questions to ask the government for some clarification but, as I said, we will be moving two amendments and we will support the bill's passage.

The Hon. T.A. FRANKS (17:27): I rise in support of this bill and welcome the Malinauskas government's commitment to keeping their election promises where they can, and in this jurisdiction this is what they can do to effect change. It has been a long time coming in terms of having legislation before this place on wage theft. I was certainly pleased that former member of this place the Hon. Irene Pnevmatikos was able to champion many matters in this area and, indeed, led the parliamentary inquiry in a previous parliament of which I was a member.

We know that wage theft is a serious concern. It is deliberate in many cases, and it does impact adversely on the most vulnerable in our workforce, and we must do all we can to address it. This bill, of course, deals with the state and the state jurisdiction, and a particularly, I think, focused section. I note that the Liberal opposition has proposed two amendments. I will not be supporting amendment No. 1 of the opposition, but I will be supporting amendment No. 2 and that is where a report on certain civil penalties will be required to be laid on the table of the parliament.

It is quite true that with regard to wage theft, in fact, the promotion of the act is as much of a deterrent for it to happen again as the financial penalties. So with that, I think it is quite fitting that any state government would be held to account, regardless of their colour. I also welcome in this place the debates on wage theft that we have been having, quite actively, and the Liberal opposition's newfound commitment to ensuring that wage theft is held to account. It is good to see bipartisanship come at last on the wage theft issue, as somebody who remembers the former leader of the Liberal government at the time who refused to use the term 'wage theft' when we set up the inquiry. We have come a long way. We have a way to go and this bill helps us get there.

The Hon. J.S. LEE (17:29): I rise to speak in support of the Fair Work (Worker Entitlements) Amendment Bill 2025. This bill affirms the fundamental principle that every worker deserves to be paid in full, on time and in accordance with the law. It reflects the values of fairness, dignity and respect in the workplace. The legislation addresses a clear gap. While the commonwealth has introduced wage theft laws for private sector employees, those protections do not extend to workers employed by state and local government. This bill ensures that public sector and council workers, teachers, nurses and many others are not left behind.

For the first time at the state level, a civil penalty regime will apply. Employers who deliberately and systematically underpay staff will face penalties of up to $25,000 per contravention. These penalties may be directed to the affected worker, not just the state, ensuring justice and restitution. This bill makes it clear that the Crown is bound by the Fair Work Act 1994. Public sector agencies will be held to the same standards as any other employer. This is a vital step in ensuring accountability across all levels of government.

The threshold for civil penalties is focused on serious misconduct. Underpayments must be both deliberate and part of a systematic pattern of conduct—recurring or methodical behaviour affecting one or more employees. This ensures enforcement targets those who knowingly and repeatedly breach their obligations, not those who make genuine errors.

The South Australian Employment Tribunal will be empowered to impose civil penalties, award interest on a broader range of underpayments and hear claims under other workplace laws. Cost orders will only be made in cases of vexatious or unreasonable conduct, aligning with national standards and protecting workers from undue financial risk. Employers will be required to pay entitlements in full, in money—not in kind—and at least monthly. This closes a loophole that allowed some to back pay just before a court hearing to avoid consequences.

The bill also expands coverage to include wages, allowances, overtime, leave payments, superannuation, long service leave and WHS-related payments. It clarifies that the state act does not apply to national system employers, aligning with legal precedent.

While this is a strong and principled reform, it is not without complexity. The Law Society of South Australia and unions have raised concerns about the threshold for civil penalties, suggesting it may be too high and could limit enforcement. There is a risk that if the bill does not deliver meaningful change it could lead to disillusionment among workers and advocates. These concerns are valid and reflect the importance of ensuring enforcement mechanisms are both effective and fair.

However, the government's position—consistent with its election commitment—is that the threshold should target serious and intentional misconduct, not inadvertent errors. This approach seeks to strike a balance between deterrence and fairness. A statutory review after three years will provide an opportunity to assess whether the legislation is working as intended and whether further reforms are needed.

The bill strengthens protections for workers, enhances accountability for employers and reinforces the integrity of our industrial relations system. I would like to indicate my support for the amendments proposed by the opposition, the Hon. Ben Hood. I believe that the amendments will strengthen the bill's intent for ensuring that workers who have been underpaid receive the benefits of the penalty, reinforcing the principle of fairness. With these remarks, I commend the bill.

The Hon. C. BONAROS (17:34): I rise to speak in support of the Fair Work (Worker Entitlements) Amendment Bill 2025. Like the Hon. Tammy Franks, I start by acknowledging the work of the Hon. Irene Pnevmatikos and the significant role she played in campaigning and championing laws against wage theft. Can I say that the inquiry that she instigated, which I too was a part of and served on, certainly was not the start of the honourable member's work on this front, but I think it did place this issue on the political agenda not just at a state level but at a federal level. It has resulted in much-needed change, change that, as the Hon. Tammy Franks has said, has also brought the Liberals along now.

The Hon. T.A. Franks: In solidarity.

The Hon. C. BONAROS: In solidarity. I must acknowledge, though, that although the opposition has come a very long way in terms of acknowledging and now supporting this legislation and the federal legislation and acknowledging the existence of wage theft, it appears that old habits die hard when it comes to resisting the temptation to have a go at unions. That is certainly reflected in the amendments, and the honourable member is going to have a hard time convincing me that these amendments are necessary.

I say that because I was quite rightly reminded that in relation to the first amendment nothing precludes a court or tribunal from ordering civil penalties to be paid to an employee, and that is clear in the government's bill, under the current bill. It is worth noting also that the courts do that frequently as is, so it is already something that is done in practice quite frequently. Aside from the fact that the member may take exception to me suggesting that old habits die hard, it is rather superfluous and, indeed, a move away from the consistency between this bill and the laws that apply federally, which this bill is modelled on.

In relation to the second amendment, I think it is also, again, worth noting, as I was reminded, that court decisions are already published online. They are readily accessible by all of us, and there is absolutely no secrecy when it comes to courts making an order. It is free for all of us to go and see, if we so wish, so there is actually no need for those reports to be laid before this parliament. It is on that basis that I will not be supporting the amendments that have been proposed by the Hon. Ben Hood.

The only other point that I would make is probably one of irony, that we are actually considering this bill in relation to the public sector post the private sector having been captured by the federal legislation. But I do think, on a serious note, that it is worth keeping consistency between those two pieces of legislation at the state and federal levels, and I acknowledge that effectively that is what this bill does. The amendments that have been provided would deviate from that consistency. It may not seem much, but given that we are already doing it, I maintain my position that it is superfluous and unnecessary and on that basis will not support the amendments but will support the bill. Once again, I reiterate and acknowledge my thanks to the Hon. Irene Pnevmatikos for all her hard work in this area.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (17:38): I thank honourable members for their contributions. As outlined in my initial second reading explanation, the legislation before us goes above and beyond the government's election commitment, which was related to criminal wage theft laws. It would have been open to the government in this bill to simply look to increase the existing criminal penalties, but we did not do that.

We recognised the appropriate policy in a state industrial context is to provide the civil penalty orders as well, which have been a very longstanding part of the industrial relations systems in other jurisdictions, particularly in a federal context. It marks the first time civil penalty orders will be available for underpayment affecting public and local government workers. That development is a product of significant consultation, particularly with workers' representatives.

The deliberate and systematic threshold in this bill reflects the government's election commitment, which was always focused on deterring deliberate underpayments of entitlements. The commitment was never about punishing the kind of administrative errors or general mistakes which perhaps will happen from time to time in any large employment organisation.

The government is up-front about recognising this as the starting point, with the bill providing an automatic statutory review for these amendments to be conducted three years after the commencement. That review will be an opportunity to consider the appropriate penalties and the thresholds, based on the practical experience.

I might just quickly outline the government's views of the amendments that the Hon. Ben Hood has put forward. In relation to the first amendment the Hon. Ben Hood put forward, it may be a slight misunderstanding or it might be a distinct anti-union bias in relation to the amendment being put forward. I want to be clear: if there has been an underpayment, the worker gets that underpayment. That happens no matter what. If there has been underpayment, the worker will get that underpayment.

What the civil penalty does is impose a further penalty on the employer—that is, the government—but that does not detract from the worker being paid that actual underpayment. The worker will get that. What the civil penalty does is impose a further penalty upon that underpayment, in part to deter future underpayments. So the worker gets it, no matter what. There is a further civil penalty that may be applied. Certainly, that is an exceptionally important part of the federal system.

I might quickly read from Justice Lee's recent decision in imposing a penalty on Qantas for the illegal dismissal of thousands of its ground staff during the COVID-19 pandemic. Justice Lee of the Federal Court said:

…but for the Union commencing and prosecuting, Qantas’ contravening conduct would never have been exposed and it would never have been held to account for its unlawful conduct; hence the Union has brought to the attention of the Court a substantial and significant transgression of a public obligation by a powerful and substantial employer;

That is the Federal Court recognising the importance of having the ability to pay civil penalties to a union. The inability to do that by the removal of the section that the Hon. Ben Hood proposes is particularly aimed at unions. It in no way stops workers who are underpaid from getting their entitlements by removing this. But what it does do, as pointed out by the Hon. Justice Lee in the Federal Court, is disincentivise unions from taking that action because they have no way of recovering some of their costs.

We think this is an important part. As I said, it might be a misunderstanding on the Hon. Ben Hood's part. If a civil penalty is in whole or partly awarded, as it happens in other jurisdictions, it is not automatically awarded to a union. It can be awarded in part, in whole or not at all to a union that has brought that action. It in no way means that the worker is not getting any part of their underpayment.

Remember the jurisdiction in South Australia is a no-cost jurisdiction; it has to be unreasonable in terms of taking the action that you can actually get costs awarded. So this just means the union that has gone to the time and effort, conducted this litigation, has a possibility of recovering some, and in a lot of cases it will only be some of that. It does not mean that the worker is not getting what they ought to have got.

In relation to the second amendment, I think the Hon. Connie Bonaros made mention that we have an open judicial system in South Australia. The full reasons for a decision are made when a decision is handed down by the SAET. What is being proposed to be tabled is something that is less than what is already there. We do consider it duplication, but it is duplication that has less information than what is already on the public record, so we will not be supporting either amendments put forward.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 12 passed.

Clause 13.

The Hon. B.R. HOOD: I move:

Amendment No 1 [Hood–1]—

Page 7, lines 26 to 30 [clause 13, inserted section 104A(7)]—Delete subsection (7) and substitute:

(7) The South Australian Employment Court—

(a) in the case of a civil penalty imposed for a contravention of section 104(1)—must order that the civil penalty be paid to the employee affected by the contravention; or

(b) in any other case—may order that the civil penalty, or a part of the penalty, be paid to—

(i) the State; or

(ii) a particular organisation; or

(iii) a particular person.

There are two amendments in my name. Amendment No. 1 [Hood-1] has been the subject of debate in the second reading in regard to the civil penalty and where it obviously goes to. In answer to the minister's question about whether it is maybe a misunderstanding or an anti-union bias, I do not think it is necessarily either of those things at all.

In looking at these amendments, what the opposition was really thinking about was yes, we understand that any underpayment of wages would be going, of course, to the employee, but then over and above that, what we see most especially in the TWU reference, which the minister spoke to and I spoke to in my second reading, is that is a significant amount of money, some $50 million, which is going to a union. One would argue the fact that it is the union's job to represent the members and then should not legal costs and possible liability in litigation costs be a matter to be determined between the union and their members, not to be compensated by the court?

Should that relationship be the union doing the job of a union, which is to ensure that they represent their members in matters like this, then should not the civil penalty be open and available to the employee, because they are the ones who have suffered through the wage theft or the underemployment, and then there be a discussion and an agreement between the union and their members about how that employee will then recompense the union for the work that they have done?

We are talking about taxpayer money here. In each instance of the civil penalty up to $25,000—and I will have a question to the minister on how we arrived at that penalty, noting that Max Adlam from the UFU said it was essentially a fig leaf and should go further. We do not necessarily have an opinion on that. Again, I make the point that we are talking about taxpayer money in the civil penalties being paid out, acknowledging that the employees will be getting their back pay, which is extremely important, but then we have a civil penalty on top of that, which essentially is taxpayer money, government money, then being given out.

Our argument is that should go to the employee because they are the ones who have suffered the injustice of wage theft—from the government in this instance—and then a relationship between the union and its members should then wash out what that recompense or what that compensation should be back to the union for the work they have done. Ultimately, at the end of the day, it is the union's job to represent their members first and foremost. We do not think it should necessarily be compensated by the court, but should be compensated back from the employee or from the members of that union that has represented them.

That is the intent of the amendment. There is no anti-union bias. It is literally thinking about the employees, the ones who have suffered the wage theft, being able to receive that civil penalty and then the relationship between the union and the member to toss out and wash out exactly how that money could go back to that union in compensation for the work that they had done.

The Hon. K.J. MAHER: If it were not an inadvertent mistake, this is anti-union. It is deliberately making sure a union gets no benefit from what is in there. So it is by definition an anti-union amendment, to be clear.

Regarding the TWU litigation against Qantas, the part of the civil penalty that was reserved for workers, to go to workers, was $40 million to the workers. The court has a discretion, as they do federally in our system, to apply to a union or a state for all the workers who are affected above and beyond the entitlements that they should have been paid. We think this strikes a reasonable balance. As the quote I read from Justice Lee said, it is an appropriate way to make sure that when these contraventions come up there is an incentive that action is taken.

The Hon. C. BONAROS: I am hoping the Attorney could answer this just by way of confirming that nothing in the bill as it stands now would actually prevent the civil penalties being awarded to a particular person who could be an employee, and that in fact—I am right in saying because I have been advised so—that is something that frequently does occur in the tribunal now? It is a frequent practice for the tribunal to determine to award that to the employee as opposed to the union.

The Hon. K.J. MAHER: Under federal law, yes, I am advised that very frequently occurs.

The Hon. C. BONAROS: Just so we are clear, this is in effect mirroring what happens at the federal sphere, where that practice is already common and frequent, that the courts make that determination to make the award to the employee rather than the union, if it is deemed appropriate, and that is how the court so rules, over and above the wage?

The Hon. K.J. MAHER: Yes, that is my advice.

Amendment negatived.

The Hon. B.R. HOOD: I move:

Amendment No 2 [Hood–1]—

Page 8, after line 19 [clause 13, after inserted section 104C]—Insert:

104D—Report on certain civil penalties

If a civil penalty is imposed for a contravention of section 104(1) by an employer of public employees, the Minister must, within 6 sitting days of the imposition of the civil penalty, cause a report to be laid before both Houses of Parliament setting out the circumstances of the contravention (including the citation of the matter before the South Australian Employment Court, the name of the agency or instrumentality of the Crown in which the public employee was engaged to perform duties, the details of the civil penalty (and any other penalty) imposed by the Court and a statement of the costs incurred by or on behalf of the Crown in relation to the matter).

This amendment, as other honourable members during the second reading debate discussed, is really, I suppose, just another layer of transparency. We are agreeing today that wage theft is serious. We all agree about that, and all this amendment does is cause the minister of the certain department that has caused the underpayment or the wage theft—a very serious issue—to ensure that is tabled before the parliament, that the members of parliament here have overview of what has gone on within that department in terms of the civil penalty and other details within that civil penalty.

This in no way, by introducing this amendment, lowers the threshold of what would be reported within the justice system. That still exists. In my mind, this is actually an additional layer of transparency to bring to the fore that this has happened within a government department. There is a civil penalty paid, which is taxpayer money, and we are saying exactly where that is going. I will not labour the point.

I thank the Hon. Tammy Franks for her support and the Hon. Jing Lee for her support on these amendments. I understand the government will not be supporting them but, in the opposition's mind, this is just another level of transparency, and not that onerous either, as the minister pointed out. This is less information than what would be found from the judicial reporting but, again, it is another layer of transparency that this parliament and its members are aware of what is happening in government departments.

The Hon. T.A. FRANKS: Just for the record, I am going to clarify that I support the tabling of reports in parliament and the transparency measures. I do not support the amendment around the unions.

The Hon. B.R. HOOD: I understand.

Amendment negatived.

The Hon. B.R. HOOD: As I flagged to the minister when speaking to my amendments, how was the maximum penalty of $25,000 arrived at?

The Hon. K.J. MAHER: It is commensurable with what is the criminal penalty component in this bill.

Clause passed.

Remaining clauses (14 to 15), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (17:54): I move:

That this bill be now read a third time.

Bill read a third time and passed.