The issuing of infringement notices and legal proceedings assists prevention by deterring others from not complying with industrial relations legislation.
An infringement notice (sometimes called an "on-the-spot fine") may be issued for certain offences against the Industrial Relations Act 1999 (PDF, 1.9MB).
When an inspector issues an infringement notice, it has an immediate punitive effect. Infringement notices are appropriate for use when the impact of the offence on employees is high, or the offence adversely affects the inspector’s ability to recover wages to which an employee may be entitled. More serious offences involving wilful or repetitive behaviour, involving large sums of money or committed over a prolonged period of employment may also warrant the issuing of an infringement notice.
A person issued with an infringement notice may elect to have the matter heard in the Industrial Magistrates Court.
Legal proceedings may be taken where an inspector has obtained sufficient evidence to establish a case to answer and where there is a reasonable prospect of a successful outcome.
Before initiating legal proceedings the matter will be reviewed by a senior officer to ensure there is sufficient evidence to support the case.
Legal proceedings include the following options:
Where a wage complaint remains unresolved following the wage resolution processes and subsequent investigation, during which the parties have been given every opportunity to resolve the matter, consideration is given in the first instance to taking offence actions in the Industrial Magistrates Court to ensure compliance.
Other circumstances where offence action may be taken include:
Outcomes of successful prosecutions for offences may be published to draw attention to the consequence of industrial relations violations and the need for fairness in workplaces.
The merits of such applications are decided on the balance of probabilities by the relevant tribunals and result in no convictions or penalties imposed on the employer in question.
The use of applications is not appropriate where wilful or repetitive behaviour is involved in the offence or where the employer has a poor industrial relations compliance history.
The purpose of appeals to a higher court is to ensure that legal proceedings are justly and correctly applied and that any penalty or order imposed is appropriate in the circumstances. The primary concern in a decision to appeal is whether the applicable law has been correctly stated and applied by the Industrial Magistrate or Commissioner. Where it appears that the Industrial Magistrate or Commissioner has erred at law or the penalty imposed appears to be inadequate in the circumstances, the Division will consider an appeal against the decision. This action will only be taken when:
Inspectors appointed under the Act are authorised to issue infringement notices to alleged offenders. An infringement notice for an offence against the Industrial Relations Act 1999 may only be issued in relation to offences that are named in the State Penalties Enforcement Regulation 2000. Sections of the Industrial Relations Act 1999 referred to in the State Penalties Enforcement Regulations 2000 are s138(4), s358(1), s366(1),(2),(4)&(5), s367(1),(2),(3)&(4), s370(1)&(3), s406(1), s666(1), s697(2) and s700(1). See the table at the end of this document for a description of each of these offences and the mandatory penalties for Infringement Notices issued in respect of them.
Infringement notices may also be issued for non-compliance under the Child Employment Act 2006 (PDF, 619 kB) and the Child Employment Regulations 2006 (PDF, 329 kB).
The alleged offender is given a 28-day period to pay the infringement notice penalty to the Department of Employment and Industrial Relations or elect to have the matter dealt with in a Magistrates Court. There is also provision to make payments of the penalty by instalments. Within this 28-day period the alleged offender may also appeal to the Department of Employment and Industrial Relations to have the matter withdrawn.
If the alleged offender does not pay the penalty or elect to go to Court within 28 days after the infringement notice is issued, the Department of Employment and Industrial Relations refers the matter for recovery of the penalty through the State Penalties Enforcement Register.
When an inspector identifies a breach in relation to an industrial relations offence named in the State Penalties Enforcement Regulation 2000, it is at the inspector's discretion as to the course of action to be taken having regard to the type of complaint.
The inspector has the option of either issuing a warning (verbal or written) to rectify the situation OR issuing an infringement notice for the offence.
In most instances it may be appropriate to issue a warning to the employer prior to the issuing of the infringement notice. This gives the employer an opportunity to remedy any non-compliance.
When a warning is to be issued an inspector will interview the employer, record the details of their conversation in their notebook and advise the employer that a follow up inspection will be conducted in "x" weeks time to ensure that the non-compliance has been rectified.
A warning would not be appropriate where the employer's actions are considered wilful or repetitive or has jeopardized an inspector or employee's ability to recover entitlements to which they may be due. An employer's history of compliance with industrial relations laws may also be relevant in determining if a warning is appropriate.
An infringement notice may be issued to an employer at the time of inspection ("on the spot") or may be issued at a later date after consideration of the evidence of any alleged offence. A separate infringement notice must be issued for each different offence.
For any enquiries in relation to infringement notices contact your local office of the District Industrial Inspector.
Offences under the Industrial Relations Act 1999 for which Infringement Notices may be issued:
Offence Clause | Description | Mandatory penalty for Infringement Notices issued to individuals | Mandatory penalty for Infringement Notices issued to corporations |
|---|---|---|---|
| s138(4) | Contravention of a QIRC order requiring an employer to provide an apprentice with tools relevant to the calling or an amount to enable the apprentice to buy tools | $300 | $1500 |
| s358(1) | Failure to pay an employee's wages, tool allowance or superannuation on an inspector's written demand | $300 | $1500 |
| s366(1) | Failure to keep a proper time and wages record (industrial instrument employee) | $300 | $1500 |
| s366(2) | Failure to state employer's full name in record (industrial instrument employee) | $300 | $1500 |
| s366(4) | Failure to keep record for 6 years (industrial instrument employee) | $300 | $1500 |
| s366(5) | Failure to give an employee a certificate of hours on request (industrial Instrument employee) | $300 | $1500 |
| s367(1) | Failure to keep a proper time and wages record (non-industrial instrument employee) | $300 | $1500 |
| s367(2) | Failure to state employer's full name in record (non-industrial instrument employee) | $300 | $1500 |
| s367(3) | Failure to keep record for 6 years (non-industrial instrument employee) | $300 | $1500 |
| s367(4) | Failure to give an employee a certificate of hours on request (non-industrial instrument employee) | $300 | $1500 |
| s370(1) | Failure to give a written statement of how a payment was made up to an employee | $300 | $1500 |
| s370(3) | Failure to state employer's full name on the statement | $300 | $1500 |
| s406(1) | Failure to contribute to the approved superannuation fund for an eligible employee at the required level by an industrial instrument | $300 | $1500 |
| s666(1) | Failure to pay an employee's wages under a relevant industrial instrument | $1500 | $3000 |
| s697(2) | Failure to display a copy of an applicable industrial instrument at the workplace | $150 | $750 |
| s700(1) | Failure to give an employee a termination certificate on request | $150 | $750 |
Offence Clause | Description | Mandatory penalty for Infringement Notices issued to individuals | Mandatory penalty for Infringement Notices issued to corporations |
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