6.2.3.10 Giving an infringement notice

When can an infringement notice be issued?

An infringement notice may be issued under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 if Centrelink or the FWO reasonably believes that the employer (individual or body corporate) has contravened a civil penalty provision (1.1.C.80). Centrelink or the FWO can give infringement notices in relation to different civil penalty provisions under the PPLAct.

Centrelink may issue infringement notices for contraventions of the PPLAct:

• subsection 82(2) (notifying Centrelink if certain events happen)
• section 103 (responding to an employer determination)
• subsection 105(3) (giving bank account and pay cycle details etc. following a review), and
• subsection 157(4) (non-compliance with a compliance notice given by Centrelink).

The FWO may issue an infringement notice for contraventions of the PPLAct:

• subsection 70(2) (unauthorised deductions from instalments)
• subsections 72(1), (2) or (3) (when an employer pays instalments)
• section 74 (method of payment of instalments payable by an employer)
• section 80 (giving a person a record of a payment)
• subsection 81(1) or (2) (keeping records), and
• subsection 157(4) (non-compliance with a compliance notice given by the FWO).

Centrelink or the FWO is not under an obligation to issue a notice and has the discretion to manage the breach of the civil penalty provision in different ways.

As an alternative for dealing with a contravention of a civil penalty provision, Centrelink or the FWO has the discretion to give a compliance notice or to apply to the court for a civil penalty order in relation to the contravention.

Grounds for issuing a notice

In order to issue an infringement notice, Centrelink or the FWO must reasonably believe that the person has contravened one or more of the civil penalty provisions.

It is, therefore, very important that an alleged contravention of a civil penalty provision has been thoroughly investigated before a notice is issued.

Time limit for issuing an infringement notice

An infringement notice must be given within 12 months:

• of the day on which the 14-day period specified in a compliance notice issued by Centrelink or the FWO ends (if the infringement notice relates to a compliance notice given by Centrelink or FWO under subsection 157(4) of the PPLAct), or
• after the day on which the alleged contravention occurred.

There is a 12-month timeframe for issuing an infringement notice because not all contraventions of a civil penalty provision will immediately be identified.

Contents of an infringement notice

An infringement notice must:

• be identified by a unique number
• state the day on which it is given
• state the name of the person to whom the notice is given and the name and contact details of the person who gave the notice, and that the person is an infringement officer for the purposes of issuing the infringement notice
• give brief details of the alleged contravention, or each alleged contravention, to which the notice relates, including
  • the provision of the PPLAct that was allegedly contravened
  • maximum penalty that a court could impose for each contravention, if the provision were contravened, and
  • the time (if known) and the day of, and the place of, each alleged contravention
• state the amount that is payable under the notice
• explain how the payment of the penalty is to be made
• state that the matter will not be dealt with by the Court if the penalty specified in the notice is paid within 28 days after the notice is given (or a longer period if extended by Centrelink or the FWO)
• state that the payment of the penalty is not an admission of guilt or liability
• state that the person may apply Centrelink or the FWO to have the payment period extended
• state that the person may choose not to pay the amount but if they choose not to, proceedings seeking a civil penalty order may be brought against the person
• set out how the notice can be withdrawn and state that if the notice is withdrawn, proceedings seeking a civil penalty order may be brought against the person, and
• state that the person may write to Centrelink or the FWO seeking the withdrawal of the notice.

Extension of time to pay penalty

An employer who has been given an infringement notice may apply to Centrelink or the FWO for an extension of the prescribed period in which to pay the penalty. The application must be made before the end of the period specified in the infringement notice and Centrelink or the FWO may extend the period, in writing, before or after the end of the period.

Centrelink or the FWO may extend the period in which to pay the penalty more than once.

If the period in which to pay the penalty is not extended by Centrelink or the FWO, then the period in which to pay the penalty infringement is the later of:

• the 28 days after the day that the notice is given, or
• the day that is 7 days after the notice was given not to extend the payment period.

Amount of penalties in infringement notices

The table below indicates the amount of penalties that an infringement notice MUST specify in relation to a contravention of the relevant civil penalty provisions in the PPLAct, by a body corporate or persons other than a body corporate.

The amount of a penalty unit is specified in the Crimes Act 1914 section 4AA.