46Duty of employer to make deductions from salary or wages

#### 46 Duty of employer to make deductions from salary or wages (1) Subject to this section, where an employer pays salary or wages to an employee in relation to whom a notice given to the employer under subsection 45(1) is in force, the employer shall, at the time of paying the salary or wages, make a deduction from the salary or wages in accordance with this section. (2) Subject to subsection (4), the amount of the deduction is the amount ascertained by applying the weekly deduction rate specified in the notice to the period in relation to which the salary or wages are paid. (4) Where the amount of the salary or wages exceeds the amount of the deduction that would, but for this subsection, be required to be made from the salary or wages by less than the amount (the protected earnings amount) ascertained by applying the protected earnings rate to the period in relation to which the salary or wages are paid, the amount of the deduction is the amount by which the amount of the salary or wages exceeds the protected earnings amount. (4A) An employer commits an offence if: (a) the employer is required to make a deduction under subsection (1) in relation to an employee; and (b) the employer refuses or fails to make the deduction. Penalty: 10 penalty units. (4B) Subsection (4A) does not apply if the amount of the employee’s salary or wages is less than the protected earnings amount. > Note: A defendant bears an evidential burden in relation to the matter in subsection (4B) (see subsection 13.3(3) of the Criminal Code). (4C) An offence against subsection (4A) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. (5) Where a person (in this subsection called the convicted person) is convicted before a court of an offence against subsection (4A) in relation to the refusal or failure of the convicted person or another person to make a deduction from salary or wages in accordance with this section, the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Registrar, as a debt due to the Commonwealth, an amount not exceeding the amount of the deduction. (6) For the purposes of this section, where an employer pays an amount of salary or wages to an employee, then: (a) if the amount is paid in relation to piece‑work performed by the employee or in relation to services rendered under a contract that is wholly or principally for the labour of the employee—the amount shall be taken to be paid in relation to the period: (i) that began when the work or services began; and (ii) that ended when the work or services ended; (b) if the amount is paid in relation to any other work performed or services rendered, but not in relation to a particular period—the amount shall be taken to be paid in relation to the period of 52 weeks preceding the day on which the amount is paid; and (c) if the employee is entitled to be paid the amount in relation to a period of longer than one week—the employer shall be deemed to have paid an amount of salary or wages to the employee in relation to each week or part of a week in the period, being the amount ascertained by dividing the amount of salary or wages in fact paid by the number of days in the period and multiplying the resultant amount: (i) in the case of each week—by 7; and (ii) in the case of a part of a week—by the number of days in the part of the week. (7) Where salary or wages for a week or part of a week is or are paid by an employer in 2 or more separate amounts, all the amounts shall, for the purposes of this section, be aggregated, and the employer may make the deduction wholly from one amount or partly from 2 or more amounts. (8) For the purposes of subsections (4) and (4B), the amount of any salary or wages shall be taken to be the amount of the salary or wages after amounts (if any) that are required to be withheld from the salary or wages under Part 2‑5 in Schedule 1 to the Taxation Administration Act 1953 have been withheld. (9) Subsection (1) has, and is taken to have had, no effect to the extent (if any) that it is inconsistent with paragraph 72(iii) or 103(iii) of the Constitution.