Document ID: chunk:federal_register_of_legislation:F2024L01635:reg:6
Version: federal_register_of_legislation:F2024L01635
Segment Type: reg
Provision Reference: reg 6
Character Range: 5624–7831

6  Failure to pay an applicable amount must not be intentional
 (1) A failure by a small business employer to pay an applicable amount to, on behalf of, or for the benefit of, an employee must not be intentional.
Note: A small business employer will have complied with this code if the failure to pay the applicable amount was not intentional, having regard to relevant matters such as those set out in this section.
 (2) Without limiting the matters to be considered in assessing whether the failure to pay the applicable amount was intentional for the purposes of this code, subsections (3) and (4) set out matters that may be relevant to that assessment.

Action by employer that may indicate the failure to pay the applicable amount is not intentional
 (3) Relevant matters may include whether the employer has done any or all of the following:
 (a) made reasonable efforts to ascertain correct rates of pay and entitlements for the employee;
 (b) made reasonable efforts to stay up to date with the employer's obligations relating to the payment of applicable amounts to, on behalf of, or for the benefit of, the employee;
 (c) considered and relied on information about the employee that the employer reasonably believed was accurate (such as the employee's role, duties, classification, relevant qualifications, age, hours of work and location of work) in relation to the payment of applicable amounts to, on behalf of, or for the benefit of, the employee;
 (d) sought information or advice from reliable sources in relation to the payment of applicable amounts to, on behalf of, or for the benefit of, the employee;
 (e) provided information that the employer reasonably believed was accurate in seeking that information or advice;
 (f) taken reasonable steps to rectify the failure to pay the applicable amount after becoming aware of the failure;
 (g) cooperated with any relevant inquiry or investigation by the Fair Work Ombudsman after becoming aware of the failure to pay the applicable amount.

Other circumstances may be relevant
 (4) Relevant matters may include any other circumstances relating to the failure to pay the applicable amount or how the employer became aware of the failure.