Document ID: chunk:federal_register_of_legislation:F2024L01635:reg:5:p1
Version: federal_register_of_legislation:F2024L01635
Segment Type: reg
Provision Reference: reg 5 (pt 1/2)
Character Range: 2756–5528

5  Simplified outline

      If a small business employer fails to pay an applicable amount (such as an amount payable under the Act or a fair work instrument) to, on behalf of, or for the benefit of, an employee, a range of civil and criminal enforcement actions may be taken. Broadly, a small business employer is one that is covered by the Act and that employs fewer than 15 employees.
      Civil action under the Act can include accepting an enforceable undertaking, giving a compliance notice or applying for an order for a civil penalty.
      A small business employer may commit a criminal offence against subsection 327A(1) of the Act if:
             (a) the employer is required to pay an applicable amount to, on behalf of, or for the benefit of, an employee; and
             (b) the employer intentionally engages in conduct; and
             (c) the conduct results, as intended by the employer, in a failure to pay the applicable amount in full on or before the day it is due for payment.
      However, if the Fair Work Ombudsman is satisfied that a small business employer complied with the code in relation to a failure to pay an applicable amount, the Fair Work Ombudsman must not refer any conduct that resulted in the failure to the Director of Public Prosecutions or the Australian Federal Police for action in relation to a possible offence against that subsection.
      Additionally, if the Fair Work Ombudsman is so satisfied, the Fair Work Ombudsman must not enter into a cooperation agreement with the small business employer that covers any such conduct.
      If the small business employer has complied with the code, the Fair Work Ombudsman, and others, may still take civil action in relation to the conduct.
      A small business employer will have complied with the code if the failure to pay the applicable amount was not intentional, having regard to relevant matters such as those set out in the code.
      An example of a matter that may be relevant to assessing whether the failure to pay the applicable amount was intentional is whether the small business employer sought information or advice from reliable sources such as guidance materials for small business employers published by a relevant industrial association of employers or employees, another relevant professional body, or the Fair Work Ombudsman.
Note 1: For information about enforceable undertakings and compliance notices, see Subdivision DD of Division 3 of Part 5‑2 of the Act.
Note 2: For information about orders for civil penalties, and other civil remedies, see Division 2 of Part 4‑1 of the Act.
Note 3: For information about cooperation agreements (which relate to conduct that a person has self‑reported to the Fair Work Ombudsman), see Subdivision DE