Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) An employer commits an offence if:
(a) the employer is required to pay an amount (a required amount ) to, on behalf of, or for the benefit of, an employee under:
(i) this Act; or
(ii) a fair work instrument; or
(iii) a transitional instrument (as continued in existence by Schedule 3 to the Transitional Act); and
(b) the required amount is not an amount covered by subsection (2); and
(c) the employer engages in conduct; and
(d) the conduct results in a failure to pay the required amount to, on behalf of, or for the benefit of, the employee in full on or before the day when the required amount is due for payment.
Note 1: For the penalty for an offence against this subsection, see subsection (5).
Note 2: A single payment to, on behalf of, or for the benefit of, an employee in relation to a particular period may comprise more than one required amount. For example, a single payment consisting of:
(a) a required amount referable to wages earned during the period; and
(b) a required amount referable to paid leave taken during the period.
(2) For the purposes of paragraph (1)(b), an amount is covered by this subsection if:
(a) either of the following apply:
(i) the employee is a national system employee only because of section 30C or 30M (which extend the meaning of national system employee );
(ii) the employer is a national system employer only because of section 30D or 30N (which extend the meaning of national system employer ); and
(b) the amount is:
(i) a contribution payable to a superannuation fund for the benefit of the employee; or
(ii) referable to the employee taking a period of long service leave; or
(iii) referable to the employee taking a period of paid leave that the employee was entitled to take by reason of being a victim of crime; or
(iv) referable to the employee taking a period of paid leave that the employee was entitled to take because the employee attended for service on a jury, or for emergency services duties.
Fault elements
(3) For the purposes of subsection (1):
(a) absolute liability applies to paragraphs (1)(a) and (b); and
(b) the fault element for paragraphs (1)(c) and (d) is intention.
Note 1: For absolute liability , see section 6.2 of the Criminal Code .
Note 2: For intention , see section 5.2 of the Criminal Code .
Things given or provided, and amounts required to be spent or paid, in contravention of Subdivision A
(4) Section 327 applies for the purposes of determining whether a person commits an offence against subsection (1) of this section in the same way as it applies in proceedings for recovery of an amount payable to an employee in relation to the performance of work.
Penalty--general
(5) An offence against subsection (1) is punishable on conviction as follows:
(a) for an individual--by a term of imprisonment of not more than 10 years or a fine of not more than the amount determined under subsection (6), or both;
(b) for a body corporate--by a fine of not more than the amount determined under subsection (6).
Determining maximum fine
(6) For the purposes of subsection (5), the amount is:
(a) if the court can determine the underpayment amount for the offence--the greater of 3 times the underpayment amount and whichever of the following applies:
(i) for an individual--5,000 penalty units;
(ii) for a body corporate--25,000 penalty units; or
(b) otherwise--the following amount:
(i) for an individual--5,000 penalty units;
(ii) for a body corporate--25,000 penalty units.
(7) The underpayment amount for an offence committed by an employer against subsection (1) is the difference between:
(a) the required amount mentioned in paragraph (1)(a); and
(b) the amount (including a nil amount) the employer actually paid to, on behalf of, or for the benefit of, the employee on account of the required amount.
Penalty for courses of conduct
(8) If:
(a) a person is found guilty of committing 2 or more offences (the aggregated offences ) against subsection (1); and
(b) the aggregated offences arose out of a course of conduct by the person;
then, subject to subsections (9) and (10), the person is taken for the purposes of subsections (5) to (7) to have been found guilty of only a single offence.
(9) Paragraph (6)(a) applies in relation to the single offence if, and only if, the court can determine the underpayment amount for any of the aggregated offences.
(10) The underpayment amount for the single offence is taken to be the sum of each of the underpayment amounts for the aggregated offences that the court can determine.