Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) The Secretary may determine that a person commits a serious failure if:
(a) the Secretary is satisfied that the person has, up to the day the Secretary makes the determination, persistently failed to comply with his or her obligations in relation to a participation payment (including by committing no show no pay failures, connection failures or reconnection failures); and
(b) the person receives a participation payment for the instalment period in which the Secretary makes the determination.
Note 1: A participation payment is not payable for 8 weeks for a serious failure (see section 42P).
Note 2: For the day the Secretary makes the determination, see section 42Y.
(2) In determining whether a person commits a serious failure under subsection (1):
(a) the Secretary must not take into account failures that were outside the person's control; and
(b) the Secretary may only take into account any other failures that occurred intentionally, recklessly or negligently.
Limitations on determining persistent non - compliance serious failures
(3) The Secretary must not determine that a person commits a serious failure under subsection (1):
(a) while the person is in a serious failure period for another serious failure determined under subsection (1); or
(b) if the person is a new apprentice; or
(c) if the person is someone to whom section 42SB applies.
Legislative instrument
(4) The Minister must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether a person persistently failed to comply with his or her obligations in relation to a participation payment.
(5) In deciding whether a person persistently failed to comply with his or her obligations in relation to a participation payment, the Secretary must take the matters determined under subsection (4) into account.
(6) To avoid doubt, subsection (5) does not limit the matters that the Secretary may take into account in deciding whether the person failed to comply with his or her obligations.