557ASerious contravention of civil remedy provisions

557A Serious contravention of civil remedy provisions

(1) A contravention of a civil remedy provision by a person is a serious contravention if:

(a) the person knowingly contravened the provision; or

(b) the person was reckless as to whether the contravention would occur.

Note: For the liability of bodies corporate for serious contraventions, see section 557B.

Example: Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.

A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full or is reckless as to whether the failure would occur. It does not matter if the employer does not know the exact amount of the underpayment.

(2) For the purposes of subsection (1), a person is reckless as to whether a contravention would occur if:

(a) the person is aware of a substantial risk that the contravention would occur; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

Involvement in a serious contravention

(5A) A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:

(a) the principal’s contravention was a serious contravention; and

(b) the involved person knew that the principal’s contravention was a serious contravention.

Application for a serious contravention order and alternative orders

(6) If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person’s application under subsection 539(2) must specify the relevant serious contravention.

(7) If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:

(a) is not satisfied that the person has committed a serious contravention against that provision; and

(b) is satisfied that the person has contravened that provision;

the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.