INDUSTRIAL RELATIONS LEGISLATION AMENDMENT ACT 2021 (NO. 30 OF 2021) - SECT 52
INDUSTRIAL RELATIONS LEGISLATION AMENDMENT ACT 2021 (NO. 30 OF 2021) - SECT 52
52 . Sections 83EA and 83EB inserted
After section 83E
insert:
83EA. Serious contravention of entitlement
provision or civil penalty provision
(1) In this
section —
contravention means a contravention of or failure
to comply with —
(a) a
civil penalty provision; or
(b) an
entitlement provision.
(2) A contravention by
a person is a serious contravention if —
(a) the
person knowingly commits the contravention; and
(b) the
person’s conduct constituting the contravention is part of a systematic
pattern of conduct relating to 1 or more other persons.
(3) For the purposes
of subsection (2), a body corporate knowingly commits a contravention if
the body corporate expressly, tacitly or impliedly authorises the
contravention.
(4) In determining
whether the person’s conduct constituting the contravention was part of
a systematic pattern of conduct, the industrial magistrate’s court may
have regard to all or any of the following —
(a) the
number of contraventions (the relevant contraventions ) committed by the
person;
(b) the
period over which the relevant contraventions were committed;
(c) the
number of other persons affected by the relevant contraventions;
(d) the
person’s response, or failure to respond, to any complaints made about
the relevant contraventions;
(e)
unless the provision contravened is a record-related civil penalty
provision — whether the person also failed to comply with a
record-related civil penalty provision relating to the conduct constituting
the relevant contraventions.
(5)
Subsection (4) does not limit the matters to which the industrial
magistrate’s court may have regard.
(6) A person (the
involved person ) who is involved in a contravention by another person (the
principal ) commits a serious contravention only if —
(a) the
principal’s contravention is a serious contravention; and
(b) the
involved person knows that the principal’s contravention is a serious
contravention.
(7)
Subsection (8) applies in proceedings for an order in relation to a
serious contravention.
(8) The industrial
magistrate’s court may, instead of imposing a pecuniary penalty on a
person for the serious contravention, impose a pecuniary penalty on the person
for the contravention if the court —
(a) is
not satisfied that the person has committed a serious contravention; but
(b) is
satisfied that the person has committed a contravention.
83EB. Employer to have burden of disproving
certain allegations by applicant under s. 83
(1) In proceedings
under section 83, the employer has the burden of disproving an allegation
by an applicant in relation to a matter if the employer —
(a) was
required under this Act or the LSL Act to —
(i)
make or keep a record in relation to the matter; or
(ii)
give a pay slip in relation to the matter; or
(iii)
make available for inspection a record in relation to the
matter;
and
(b)
failed to comply with the requirement.
(2)
Subsection (1) does not apply if the employer provides a reasonable
excuse for the failure to comply with the requirement.