7.2.4 Civil Penalty Orders
Employers have a direct role in the delivery of PLP. Their compliance with obligations under the PPL law is essential for proper administration of the PPL scheme. 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. Employers have obligations in relation to the payment of instalments of PLP to a person if there is an employer determination in force for the employer and the person.
The Secretary or the FWO or their delegates may apply to the Federal Court or a Federal Circuit Court of Australia for a civil penalty order to be made for a breach by an employer of a civil penalty provision. If the court is satisfied that a person has contravened one or more civil penalty provisions, the court may order the person to pay to the Commonwealth a pecuniary penalty. This is a civil penalty order.
Note: The Secretary's power to delegate his or her powers under Parts 4 and 5 of the Regulatory Powers (Standard Provisions) Act 2014 (which deal with civil penalty orders and infringement notices) is limited to delegation to the Chief Executive Centrelink or the Chief Executive Medicare, or to an SES employee or acting SES employee.
Under subsection 82(5) of the Regulatory Powers (Standard Provisions) Act, the pecuniary penalty that a court could order a person to pay is the number of penalty units corresponding to the civil penalty provision in the table below. If the person is a body corporate, the penalty must not be more than 5 times the number of penalty units corresponding to the civil penalty provision in the table below.
Example: The penalty the court could order an individual to pay for a contravention of subsection 72(1) must not be more than 60 penalty units. The penalty a court could order a body corporate to pay for a contravention of subsection 72(1) must not be more than 300 penalty units.
The civil penalty provisions in the PPLAct are listed in column 1 below. The relevant maximum penalty that a court could order a person to pay for contravention of the provision is provided in column 2. If the person is a body corporate, the maximum pecuniary penalty a court could order for a contravention of a civil penalty provision is 5 times the number of penalty units in column 2.
Civil penalty provision
Penalty for contravention by a person who is not a corporate entity
|Subsection 70(2) Unauthorised deductions from an instalment of PLP.||60 penalty units|
|Subsection 72(1) Employer must pay a fully funded instalment of PLP on the correct pay day if an employer determination is in force on a day during the instalment period.||60 penalty units|
|Subsection 72(2) Employer must pay a fully funded retrospective instalment of PLP on the next available payday where employer determination comes into force after the instalment period.||60 penalty units|
|Subsection 72(3) Employer must pay an earlier instalment of PLP if fully funded to pay the instalment on the payday for a later instalment.||60 penalty units|
|Section 74 Employer must pay an instalment of PLP in a specified method.||60 penalty units|
|Section 80 Employer must give an employee a record of payment of PLP in the required form and within the specified time.||30 penalty units|
|Subsection 81(1) Employer must make and keep for 7 years records in relation to each person for whom an employer determination is in force.||30 penalty units|
|Subsection 81(2) Employer must keep records in the form as prescribed by the PPL Rules.||30 penalty units|
|Subsection 82(2) Employer must notify Centrelink of certain events in writing and within specified times.||60 penalty units|
|Section 103 Employer must respond within the specified time to notice given under section 104 of an employer determination or apply for review of that determination.||60 penalty units|
|Subsection 105(3) Employer must provide within the specified time bank account and pay cycle details following review of an employer determination.||60 penalty units|
|Subsection 157(4) - in relation to a contravention of a compliance notice given in relation to a contravention of section 80 or subsection 81(1) or (2).||30 penalty units|
|Subsection 157(4) - in relation to a contravention of a compliance notice given in relation to any other civil penalty provision.||60 penalty units|
Factors the court must take into account
The Court has discretion to determine the amount of the pecuniary penalty it considers appropriate. However, in doing so, the Court must take into account all relevant matters. These include:
- The nature and extent of the contravention.
- The nature and extent of any loss or damage suffered because of the contravention.
- The circumstances in which the contravention took place.
- Whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.
Other provisions in the Regulatory Powers (Standard Provisions) Act specify that:
- A relevant court may direct that 2 or more proceedings for civil penalty orders are to be heard together.
- An application for a civil penalty order must be made no later than 6 years after the contravention by the employer.
- Rules of evidence and procedure for civil matters apply to proceedings for a civil penalty order.
- If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be brought under the Regulatory Powers (Standard Provisions) Act against a person in relation to contravention of any one or more of those civil penalty provisions. However, a person is not liable for more than one penalty in relation to the same conduct.
- If civil proceedings take place AFTER criminal proceedings the court cannot make a civil penalty order against a person who has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention of a civil penalty provision.
- Civil proceedings must be stayed where criminal proceedings are commenced for conduct substantially the same as that which constituted contravention of the civil penalty provision, but may be resumed if the person is not convicted.
- Criminal proceedings may be commenced against a person for conduct substantially the same as that constituting contravention of a civil penalty provision, whether or not a civil penalty order has been made against the person.
- If a person has given evidence in civil penalty proceedings, it cannot be used in criminal proceedings against the person if the conduct alleged to constitute the offence is the same or substantially the same as that constituting the contravention. This does not apply if the criminal proceedings related to false evidence given in the civil penalty proceedings.
In certain circumstances, a person may be required to give all reasonable assistance in connection with an application for a civil penalty order, whether or not the application for the civil penalty order has been made. Failure to comply with a written request by the Secretary to provide all reasonable assistance is an offence, the penalty for which is 12 penalty units multiplied by the number of contraventions.
The Secretary can only request a person's assistance if it appears that the person is unlikely to have contravened the same civil penalty provision to which the application relates; or committed an offence constituted by the same or substantially the same conduct; and the Secretary suspects or believes that the person could give relevant information.
The Secretary cannot request the assistance of a person who is or has been a lawyer for the person who is the subject of the application for the civil penalty order.
The Secretary may apply to the Federal Court or the Federal Circuit Court of Australia for an order that a person comply with a request for assistance by the Secretary in a specified way.
Fair Work Inspectors have specific compliance powers under the Fair Work Act 2009, including powers to interview any person while on premises and to require a person to produce a record or document, which can be exercised for the purpose of determining whether PPLAct section 70 or Part 3-2 is being, or has been, complied with.
Act reference: Regulatory Powers (Standard Provisions) Act 2014 Part 4 Division 3 Civil proceedings and criminal proceedings, section 82 Civil penalty orders, section 86 Proceedings may be heard together, section 87 Civil evidence and procedure rules…
PPLAct section 156 Requirement for person to assist in applications for civil penalty orders