536FGiving a cash or in kind payment

536F Giving a cash or in kind payment

Giving a cash or in kind payment

(1) A person (the defendant) commits an offence if:

(a) the defendant is a national system employer other than an employee organisation; and

(b) the defendant:

(i) provides a cash or in kind payment to another person; or

(ii) causes a cash or in kind payment to be provided to another person; or

(iii) offers to provide, or promises to provide, a cash or in kind payment to another person; or

(iv) causes an offer of the provision of a cash or in kind payment, or a promise of the provision of a cash or in kind payment, to be made to another person; and

(c) the other person is an employee organisation or a prohibited beneficiary in relation to an employee organisation; and

(d) the defendant, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the defendant, or a person who has a prescribed connection with the defendant, employs a person who is, or is entitled to be, a member of the organisation and whose industrial interests the organisation is entitled to represent.

Penalty:

(a) for an individual—imprisonment for 2 years or 500 penalty units, or both; or

(b) for a body corporate—2,500 penalty units.

(3) Subsection (1) does not apply to the following cash or in kind payments:

(a) a payment to the organisation:

(i) made by deduction from the wages of an employee of the defendant who has agreed in writing to become a member of the organisation; and

(ii) made for a membership fee payable by the employee;

(b) a benefit provided and used for the sole or dominant purpose of benefiting the defendant’s employees, or the defendant’s former employees in relation to their former employment;

(c) a gift or contribution deductible under section 30‑15 of the Income Tax Assessment Act 1997 and used in accordance with the law;

(ca) a benefit of nominal value (meaning no more than 2 penalty units) associated with travel or hospitality during consultation, negotiation or bargaining;

(cb) a benefit of nominal value (meaning no more than 2 penalty units) that is:

(i) a token gift, an event invitation or a similar benefit; and

(ii) given in accordance with common courteous practice among employers and organisations;

(d) a payment made, at no more than market value, for goods or services supplied to the defendant in the ordinary course of the organisation’s business;

(e) a payment made under or in accordance with a law of the Commonwealth, or a law of a State or Territory;