Wage theft and underpayment in the arts: your options.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.

Work in the performing arts is often casual, short and paid on trust. A flat fee for a season, a handshake rate for a gig, a promise of "we will sort the super later". That informality is where underpayment hides. Some of it is a genuine mistake by a small company that does not understand the award. Some of it is deliberate. Since 1 January 2025 the deliberate kind can be a criminal offence, and the ways to recover what you are owed have become clearer. This note sets out what counts as underpayment, what the new law does, and the steps that actually get money back.

What counts as wage theft or underpayment in the arts?

Underpayment means being paid less than your legal entitlement. For most arts workers that entitlement comes from the Fair Work Act 2009 (Cth), the National Employment Standards, and the modern award that covers the work, usually the Live Performance Award 2020. It can also come from an enterprise agreement. Being paid a flat rate that falls below the award minimum, missing penalty rates and allowances, unpaid overtime, no annual leave loading for employees, and unpaid superannuation are all forms of underpayment.

The word wage theft is often used loosely to describe any underpayment. The law now uses it more precisely for the criminal offence. A useful way to hold the two ideas together is this: every case of wage theft is an underpayment, but not every underpayment is the crime. Whether you are an employee entitled to the award, or a genuine contractor paid a fee, changes which rules apply. That line is covered in the note on employee or independent contractor, and being wrongly labelled a contractor is dealt with in the note on sham contracting.

Is wage theft a crime in Australia now?

Yes, in defined cases. Section 327A of the Fair Work Act 2009 (Cth), inserted by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023, created a criminal offence of intentional underpayment. It commenced on 1 January 2025. The offence applies where an employer engages in conduct intending to underpay an employee, and that conduct results in a failure to pay a required amount on or before the day it is due.

A required amount is broad. It covers wages and certain other amounts an employer must pay under the Fair Work Act, a modern award or an enterprise agreement, and it can include amounts such as superannuation and paid leave entitlements. The section is set out on the Federal Register of Legislation. The offence is prosecuted by the Commonwealth, and the Fair Work Ombudsman can refer suitable matters to the Commonwealth Director of Public Prosecutions or the Australian Federal Police.

What are the penalties for the criminal offence?

They are serious. For an individual, such as a business owner, director or manager, the maximum is up to 10 years in prison, a fine, or both. The maximum fine is the greater of three times the amount of the underpayment, where the court can work that out, or 5,000 penalty units. For a company, the maximum fine is the greater of three times the underpayment or 25,000 penalty units.

The size of those fines rises and falls with the value of a Commonwealth penalty unit, which is set by legislation and indexed over time. The point for an arts organisation is not the exact figure. It is that intentional underpayment now sits alongside company fines and personal criminal liability for the people who run the organisation, not just an order to back-pay what was owed.

What if the underpayment was an honest mistake?

An honest mistake is not the criminal offence. The offence requires intention. The employer must have meant to underpay, and the prosecution must prove that beyond reasonable doubt. A company that miscalculates an award rate, misreads a penalty clause or makes a payroll error has not committed the crime, although it still has to fix the underpayment and may face civil penalties for breaching the Act or the award.

For small business there is a further protection. The Voluntary Small Business Wage Compliance Code is a declared standard, and a small business employer that complies with it in relation to an underpayment will not be referred for criminal prosecution for that conduct. The Code rewards employers who try to get it right and fix errors promptly. It does not excuse the underpayment itself, which still has to be repaid.

How do you recover unpaid wages or entitlements?

The criminal offence runs alongside the ordinary ways of recovering money, it does not replace them. The first step is usually to raise it directly, in writing, setting out what you were paid, what you should have been paid, and the difference. Many underpayments are resolved once an employer is shown the figures against the award. The Fair Work Ombudsman publishes pay rates and can help calculate an award entitlement.

If that does not work, you can make a complaint to the Fair Work Ombudsman, which can investigate and, in the right case, take enforcement action. For performers, the Media, Entertainment and Arts Alliance can also assist members with pay disputes. Where the amount is agreed but simply not paid, the recovery of a straightforward debt is covered in the note on recovering an unpaid performance fee.

What is the small claims option for unpaid wages?

There is a fast, low-cost court process for underpayment claims. An employee can bring a small claims proceeding in the Federal Circuit and Family Court of Australia, or in an eligible state court, to recover an underpayment. The Closing Loopholes reforms raised the small claims cap to $100,000, so most individual underpayment claims now fit within it.

The small claims process is designed to be used without a lawyer. It is less formal than an ordinary court hearing, the rules of evidence are relaxed, and legal costs are generally not awarded against the losing side, which lowers the risk of running it. You will need your records: the offer or contract, payslips, rosters, call sheets and bank statements showing what you were actually paid. Good records are what turn a sense that you were shortchanged into a claim a court can act on.

What about unpaid superannuation?

Superannuation is a common gap in the arts, especially for freelance and casual workers. Employees are generally entitled to compulsory superannuation contributions, and many contractors paid mainly for their labour are also entitled to super under the superannuation guarantee rules. Unpaid super is now capable of being part of a required amount for the criminal offence, and it is also pursued through the Australian Taxation Office, which administers the superannuation guarantee charge for unpaid contributions.

How super works for musicians and freelance crew, including the contractor rule, is set out in the note on superannuation for musicians and freelance crew. If your super has not been paid, keep your invoices and statements and raise it early, because there are time considerations in chasing it through the ATO.

What this means for arts workers and organisations

For a performer or crew member, the message is that underpayment is not something you simply have to accept. Work out what the award or your agreement entitled you to, put it to the employer in writing, and use the Fair Work Ombudsman, your union or the small claims process if it is not fixed. Keep every document, because the claim stands or falls on the records.

For a company, venue or producer, the message is that getting pay right is now a legal risk worth taking seriously, not a corner to cut when a budget is tight. Understand the award, pay superannuation, keep clean records, and fix errors as soon as you find them. Intentional underpayment can bring criminal liability for the people who run the organisation. If you are owed money, or you have received a claim or a Fair Work notice, get advice on where you stand before you respond.

Frequently asked.

Is wage theft a crime in Australia?

Yes, in defined cases. Section 327A of the Fair Work Act 2009 (Cth) created a criminal offence of intentional underpayment, which commenced on 1 January 2025. It applies where an employer intends to underpay an employee and that conduct results in a failure to pay a required amount, such as wages, superannuation or paid leave, on or before the day it is due. An honest mistake is not the offence, because intention must be proved.

What is the penalty for wage theft under the Fair Work Act?

For an individual, the maximum is up to 10 years in prison, a fine, or both. The maximum fine is the greater of three times the underpayment, where the court can work it out, or 5,000 penalty units. For a company, the maximum fine is the greater of three times the underpayment or 25,000 penalty units. The dollar value of a penalty unit is set by legislation and changes over time.

What if my employer underpaid me by mistake?

An honest mistake is not the criminal offence, because that offence requires an intention to underpay proved beyond reasonable doubt. But the employer still has to repay what was owed, and can face civil penalties for breaching the Fair Work Act or the award. A small business that complies with the Voluntary Small Business Wage Compliance Code will not be referred for criminal prosecution for the underpayment.

How do I recover unpaid wages in the arts?

Start by raising it in writing, setting out what you were paid against what the award or your agreement required. If that does not resolve it, you can complain to the Fair Work Ombudsman, which can investigate and enforce, and members can seek help from the Media, Entertainment and Arts Alliance. For a straightforward unpaid fee you can pursue the debt directly, and for underpayment against an entitlement you can use the small claims court process.

What is the small claims limit for unpaid wages?

An employee can bring a small claims proceeding in the Federal Circuit and Family Court of Australia or an eligible state court to recover an underpayment. The Closing Loopholes reforms raised the small claims cap to $100,000, so most individual claims fit within it. The process is designed to be used without a lawyer, is less formal, and generally does not award legal costs against the losing side.

Can I claim unpaid superannuation as an arts worker?

Often yes. Employees are generally entitled to compulsory superannuation, and many contractors paid mainly for their labour are also entitled to it under the superannuation guarantee rules. Unpaid super can now form part of a required amount for the wage theft offence, and it is also pursued through the Australian Taxation Office, which administers the superannuation guarantee charge. Keep your invoices and raise it early, as time limits apply.

If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 19 September 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.

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