Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) A contravention of a civil remedy provision by a person is a serious contravention if:
(a) the person knowingly contravened the provision; and
(b) the person's conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.
Note: For the liability of bodies corporate for serious contraventions, see section 557B.
Example: Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.
A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full (even if the employer does not know the exact amount of the underpayment) and that contravention is part of a systematic pattern of conduct by the employer. The systematic pattern of conduct of the employer may relate to more than one employee and may consist of different contraventions.
Systematic pattern of conduct
(2) In determining whether the person's conduct constituting the contravention of the provision was part of a systematic pattern of conduct, a court may have regard to:
(a) the number of contraventions (the relevant contraventions ) of this Act committed by the person; and
(b) the period over which the relevant contraventions occurred; and
(c) the number of other persons affected by the relevant contraventions; and
(ca) the person's response, or failure to respond, to any complaints made about the relevant contraventions; and
(d) except if the provision contravened is section 535--whether the person also contravened subsection 535(1), (2) or (4) by failing to make or keep, in accordance with that section, an employee record relating to the conduct constituting the relevant contraventions; and
(e) except if the provision contravened is section 536--whether the person also contravened subsection 536(1), (2) or (3) by failing to give, in accordance with that section, a pay slip relating to the conduct constituting the relevant contraventions.
(3) Subsection (2) does not limit the matters that a court may have regard to.
(4) Subsection 557(1) does not apply for the purposes of determining whether the person's conduct was part of a systematic pattern of conduct.
(5) Subsection (4) does not otherwise affect the operation of subsection 557(1) in relation to serious contraventions of civil remedy provisions.
Involvement in a serious contravention
(5A) A person (the involved person ) who is involved in a contravention of a civil remedy provision by another person (the principal ) commits a serious contravention of the provision only if:
(a) the principal's contravention was a serious contravention; and
(b) the involved person knew that the principal's contravention was a serious contravention.
Application for a serious contravention order and alternative orders
(6) If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person's application under subsection 539(2) must specify the relevant serious contravention.
(7) If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:
(a) is not satisfied that the person has committed a serious contravention against that provision; and
(b) is satisfied that the person has contravened that provision;
the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.