6.8.1 Employer Offences

Context

The CSRC Act imposes specific duties (5.2.4) on employers of payers. The legislation contains offence provisions for breach of those duties.

The Registrar may impose penalties (5.2.4) on employers for breaching certain duties or take action in court to prosecute (6.8.7) employers. The penalties that the court can impose are discussed in this page.

Act references

CSRC Act section 46, section 47, section 57, section 58, section 59, section 60, section 61, section 121

On this page

Failure to make deductions from salary/wages

An employer who fails to make deductions from salary or wages paid to an employee as required by a notice given by the Registrar commits an offence (CSRC Act section 46(4A)). The maximum penalty is 10 penalty units (see 6.8.7 for penalty unit amount).

Failure to pay deducted amounts to the Registrar

Where an employer makes deductions from an employee's salary or wages, the employer must pay the amounts deducted to DHS by the 7th day of the following month (CSRC Act section 47(1)(a)). Failure or refusal to pay deducted amounts is an offence. The maximum penalty is a fine of 50 penalty units (see 6.8.7 for penalty unit amount) and/or imprisonment for 12 months (CSRC Act section 47(3A)).

Failure to notify the Registrar of deductions

Where an employer makes deductions from an employee's salary or wages, the employer must notify the Registrar of the deductions by the 7th day of the following month (CSRC Act section 47(1)(b)). Failure or refusal to notify is an offence. The maximum penalty is a fine of 50 penalty units (see 6.8.7 for penalty unit amount) and/or imprisonment for 12 months (CSRC Act section 47(3A)).

In addition, a court can order that the employer comply (CSRC Act section 121).

Failure to notify the Registrar that no deductions were made

Where an employer made no deductions in a particular month (e.g. because no payments were made to the employee or the amount paid to the employee was below the protected earnings level) they must notify the Registrar by the 7th day of the following month (CSRC Act section 47(1A)). Failure or refusal to notify is an offence. The maximum penalty is a fine of 10 penalty units (see 6.8.7 for penalty unit amount) (CSRC Act section 47(3B)).

Failure to notify the employee of deductions made or that no deductions were made

Where an employer, who has been required by the Registrar to make deductions from an employee's salary or wages, makes a payment to the employee, the employer must notify the employee of the amount deducted or that no amount has been deducted (CSRC Act section 47(2)). Failure or refusal to notify the employee is an offence. The maximum penalty is a fine of 10 penalty units (see 6.8.7 for penalty unit amount) (CSRC Act section 47(3B)).

Failure to notify the Registrar of employee ceasing employment

Where an employee's employment ceases, the employer must notify the Registrar by the 7th day of the following month (CSRC Act section 47(3)). Failure or refusal to notify is an offence. The maximum penalty is a fine of 5 penalty units (see 6.8.7 for penalty unit amount) (CSRC Act section 47(3C)).

Employer not to prejudice employee or potential employee

An employer must not do any of the following things to an employee or potential employee:

  • refuse to employ or pay salary or wages,
  • dismiss or threaten to dismiss,
  • terminate or threaten to terminate payment of salary or wages,
  • prejudice or threaten to prejudice in their employment or in ways other than through receipt of salary or wages,
  • intimidate or coerce, impose any pecuniary penalty or take any disciplinary action,

because the person

  • is a payer of a liability which can be, or is registered with DHS, or
  • is a payer of a liability for whom the employer is required to make child support deductions from their salary or wages.

The provision is not limited to parents who are already payers.

It is not necessary for the prosecution to prove the reason for the employer's action. It is a defence if the employer proves, on the balance of probability, that their actions were not motivated (in whole or in part) by one of the specified reasons.

Situations which would warrant investigation include those where an employer:

  • threatens to sack employees because of the need to deduct child support,
  • charges employees an amount to cover the employers costs of deducting child support,
  • indicates that, in the future, they will not employ any person who has a child support liability, or
  • denies an employee developmental opportunities because of their child support liability.

This offence is punishable on conviction by a fine not exceeding 20 penalty units (see 6.8.7 for penalty unit amount). In addition, a court can order a convicted person to pay compensation to a person for loss or damage suffered, and/or take other action to reduce the loss or damage suffered by the employee (CSRC Act section 57).

Employer not to disclose information

Neither an employer nor any person performing duties for an employer can directly or indirectly divulge information about the deduction of child support from a payer's wages. This offence is punishable on conviction by a fine of up to 10 penalty units (see 6.8.7 for penalty unit amount) (CSRC Act section 58(1)).

Records to be kept & preserved

Employers are required to keep records that record and explain the amounts deducted, or required to be deducted, from payments to employees (CSRC Act section 59(1)). Employers are also required to record and explain any other acts required by CSRC Act Part IV. Employers must retain the records for 5 years (CSRC Act section 59(1)).

The records must be kept in writing in the English language (or in a form that can readily be converted to writing in the English language). The records must enable the matters and acts referred to above to be readily ascertained (CSRC Act section 59(2)).

The Registrar will notify a person if they are no longer required to keep records. There is no requirement to preserve records of a company that has been liquidated and finally dissolved. Apart from these 2 defences, failure or refusal to keep and preserve records is an offence (CSRC Act sections 59(3) and (4)). The maximum penalty is a fine of 20 penalty units (see 6.8.7 for penalty unit amount) (CSRC Act section 59(3)).

Incorrectly keeping records

Where an employer keeps their records in such a way that they do not correctly record and explain the matters or acts, the employer is guilty of an offence. The offence is punishable on conviction by a fine not exceeding 20 penalty units (see 6.8.7 for penalty unit amount) (CSRC Act section 60(1)).

It is a defence if the employer proves that they did not know and could not reasonably be expected to have known that the relevant record did not correctly record and explain the matter or act (CSRC Act section 60(2)).

Failure to assist an officer authorised to access premises & records

The Registrar's powers to enter premises and access documents are discussed in 6.2.

It is an offence for the occupier of land or premises entered (or proposed to be entered) by an officer under section 61 to fail to provide all reasonable assistance or facilities that the occupier is capable of providing (CSRC Act section 61(3)). The maximum penalty for this offence is a fine of 10 penalty units (see 6.8.7 for penalty unit amount).

Providing reasonable facilities includes permitting officers to use the employer's photocopier. However, if the employer does not have a photocopier or it is not reasonable for them to give access to it, then officers cannot demand this service.

Reasonable assistance can involve an employer indicating where records are located or providing a general explanation of how records are structured. An employer is not required to provide active assistance by actually searching for the exact location of the records.

Where records are stored on computer, reasonable assistance would involve assisting officers to log on to the computer and access the relevant records. It would not involve searching through the records to locate the specific file to which officers are seeking access.

Last reviewed: 20 September 2017