6.2 Compliance

Introduction

This chapter is about employer compliance with obligations relating to the payment of instalments of PLP to a person and penalties that may apply to non-compliance.

Employers have a direct role in the delivery of PLP to their long-term employees. An employer's obligations under the PPLAct only arise where an employer determination has been made for the employer and the person. Employer compliance with obligations under the PPLAct is essential for the proper administration of the PPL scheme.

Centrelink and the FWO each have a role in ensuring that employers comply with their obligations under the PPLAct. Centrelink may refer certain matters to the FWO for investigation and compliance action where it is believed that an employer may have contravened his or her obligations in relation to the payment of instalments of PLP to a person.

Note: For a person who is a defence force member, a reference to the FWO or the Fair Work Inspector is taken to be a reference to the Defence Force Ombudsman.

Civil penalties

Certain employer obligations under the PPLAct are civil penalty provisions (1.1.C.80). Those provisions are listed in the table at section 146 of the PPLAct (6.2.4). Under the PPLAct, Centrelink and the FWO can enforce employer obligations in 3 ways:

• Centrelink or the FWO can issue a compliance notice for contravention of a specified civil penalty provision, requiring the person to rectify the contravention
• Centrelink or FWO can issue an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 for contravention of a specified civil penalty provision including failure to comply with an infringement notice, requiring the person to pay pecuniary penalty, or
• Centrelink or the FWO can apply to the court for a civil penalty order under Part 4 of the Regulatory Powers (Standard Provisions) Act for contravention of a civil penalty provision, potentially requiring the employer to pay a higher pecuniary penalty.

Centrelink or the FWO does not have to issue a compliance notice before issuing an infringement notice or applying for a civil penalty order. Centrelink or the FWO may choose to issue an infringement notice or apply for a civil penalty in the first instance. If the employer complies with an infringement notice by paying the required pecuniary penalty, Centrelink or the FWO will not be able to apply for a civil penalty order in relation to the same contravention.

Compliance notices

Centrelink or the FWO may give a compliance notice (1.1.C.140) in certain circumstances if they reasonably believe that the employer has contravened one or more of the civil penalty provisions specified. Compliance notices must require the employer to take the action specified in the notice to rectify the contravention and produce reasonable evidence of compliance within 14 days of the day on which the notice is given. More information about compliance notices can be found in 6.2.2.

In some instances it will be inappropriate to issue a compliance notice because the employer who has contravened the civil penalty provision cannot rectify the contravention.

Infringement notices

Centrelink or the FWO may issue an infringement notice (1.1.I.60) under Part 5 of the Regulatory Powers (Standard Provisions) Act if Centrelink or the FWO reasonably believes that the person has contravened one or more of the civil penalty provisions of the PPLAct. An infringement notice must specify a pecuniary penalty and contain a statement that the matter will not be dealt with by the Federal Court or the Federal Circuit Court of Australia if the penalty is paid within a specified timeframe. More information about infringement notices can be found in 6.2.3.

A person who is given an infringement notice can choose to pay a penalty. If the penalty is not paid, a civil penalty order may be sought in relation to the person.

Civil penalty orders

Centrelink or the FWO can apply to the Federal Court or the Federal Circuit Court of Australia to grant a civil penalty order under Part 4 of the Regulatory Powers (Standard Provisions) Act for contravention of any of the civil penalty provisions listed under PPLAct section 146. If the court is satisfied that a person has contravened one or more civil penalty provisions the court may order them to pay a pecuniary penalty, subject to the limits and matters that must be taken into account by the court under subsections 82(5) and 82(6) of the Regulatory Powers (Standard Provisions) Act.

Centrelink or the FWO can apply for a civil penalty order regardless of whether a compliance notice or infringement notice has been issued. Centrelink or the FWO will usually apply for a civil penalty order only after a person has failed to comply with an infringement notice. Failure to comply with an infringement notice, however, is NOT grounds for a civil penalty order. A civil penalty order can only be made under Part 4 of the Regulatory Powers (Standard Provisions) Act for contravention of a civil penalty provision under PPLAct section 146. More information about civil penalty orders can be found in 6.2.4.

Note: Civil penalties and infringement notices do not directly affect individuals eligible for PLP as they apply only to employers with obligations imposed by PPL law.

The Secretary can only delegate powers under Part 4 of the Regulatory Powers (Standard Provisions) Act (re civil penalty orders) and under Part 5 of the Regulatory Powers (Standard Provisions) Act (re infringement notices) to the Chief Executive Centrelink or the Chief Executive Medicare, or to an SES employee or an acting SES employee.

Jurisdiction of the Federal Court & the Federal Circuit Court of Australia

Both the above Courts have jurisdiction in relation to civil matters arising under the PPLAct.