Part 10Part 10 Payment of remuneration
117 Employees to be paid in money
(1) Remuneration payable to an employee must be paid in money and, if demanded, at least once each fortnight.(2) Payment is made in money only if it is made:(a) in cash, or(b) with appropriate authority, by cheque payable to the employee, or(c) with appropriate authority, into an account in the name of the employee (whether or not jointly with another person) at a financial institution by electronic transfer of funds or other means.Appropriate authority is authority conferred in writing by the employee or authority conferred by an industrial instrument.
(3) Payment of remuneration is to be made in advance if the employee is entitled to payments in advance by agreement, custom or otherwise.(4) An employer must not pay remuneration to an employee contrary to this section.Maximum penalty: 100 penalty units.
118 Employees to be paid in full
(1) Payment of remuneration to an employee is to be made in full without any deduction for goods, board or lodging or any other services supplied by the employer in payment (or part payment) of remuneration.(2) However, an employer can deduct and pay on behalf of an employee from any remuneration payable to the employee:(a) any payments principally for the benefit of the employee that are authorised in writing by the employee to be deducted and paid, or(b) any payments that are authorised by an industrial instrument to be deducted and paid.(3) An employer must not pay remuneration to an employee contrary to this section.Maximum penalty: 100 penalty units.
119 Employer not to stipulate how remuneration to be spent
An employer must not, directly or indirectly, impose as a condition of the employment of an employee any terms as to the place where or the manner in which or the person with whom any remuneration paid to the employee is to be spent.Maximum penalty: 100 penalty units.
120 Recovery of remuneration—no set-off or action for goods or services supplied by employer
(1) In any proceedings by an employee against the employer to recover any amount due as remuneration, the employer is not entitled to any set-off or reduction of the claim in respect of:(a) any goods or services supplied to the employee as, or as part of, remuneration, or(b) any goods sold or supplied at any shop or other premises of the employer or in the profits of which the employer has any share or interest, or(c) any goods supplied to the employee by any person under the direction of the employer or the employer’s agent.(2) An employer is not entitled to maintain any action in any court or tribunal against an employee for or in respect of any goods sold or supplied to the employee by the employer while in the employer’s employment as or as part of the employee’s remuneration.
121 Unauthorised payments—civil effect
(1) Payment of remuneration to an employee contrary to this Part is not to be considered to be payment or part payment of that remuneration, except to the extent (if any) permitted by the Commission.(2) A provision of a contract that provides for payment of remuneration to an employee in a manner that is contrary to this Part is void.
122 Payment of unclaimed remuneration
(1) If:(a) an employee has left the employment of an employer without being paid the full amount due to the employee in respect of the employment, and(b) the employer has been unable, during a period of 30 days after the termination of the employment, to make the payment because the location of the employee is unknown to the employer, and cannot with reasonable diligence be found,the employer must, immediately after the expiration of that period, pay the full amount to the Treasury.Maximum penalty: 50 penalty units.
(2) A receipt issued on behalf of the Treasury for money so paid is a sufficient discharge to an employer for the amount specified in the receipt.(3) The amount so paid is to be paid into the Consolidated Fund.(4) If the Treasurer is satisfied that a person is entitled to money that has been so paid into the Consolidated Fund, the Treasurer is to pay that amount of money to that person.
123 Particulars of remuneration to be supplied to employees
(1) An employer must, when paying remuneration to an employee, supply the employee with such written particulars regarding the payment as are prescribed by the regulations.Maximum penalty: 20 penalty units.
(2) The employer may, instead of supplying those written particulars, make other arrangements approved by the Industrial Registrar for supplying information about remuneration to all or any of the employees of the employer. Any such approval:(a) must be granted to the employer in writing, and(b) must not be granted unless the Industrial Registrar is satisfied that the arrangements are in the interests of the employees concerned and meet their reasonable requirements for information about remuneration, and(c) may be revoked or varied by the Industrial Registrar by notice in writing to the employer.
124 Superannuation fund contributions
(1) If an industrial instrument requires an employer to pay contributions to a specified superannuation fund for the purpose of providing superannuation benefits to or in respect of an employee of the employer, the required contributions may, despite the industrial instrument, be paid to a complying superannuation fund nominated for the time being by the employee and approved by the employer.(2) However, subsection (1) applies only if:(a) the nomination of the complying superannuation fund by the employee is in writing and signed by the employee, and(b) the employer has given the employee a copy of the nomination and written notice of the employer’s approval of the nomination, and(c) the employer retains a copy of the nomination.(2A) An employee may, by notice in writing, revoke a nomination under this section.(3) In this section:complying superannuation fund means a superannuation fund that, for the relevant year of income, is a complying superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth.
superannuation fund has the same meaning as it has in the Superannuation Industry (Supervision) Act 1993 of the Commonwealth.
125 Permits—special wage payments
(1) Any employee may apply to the Industrial Registrar for a written permit authorising the employee to work for less than the rate of pay set for the employee by an industrial instrument if the employee considers himself or herself unable to earn the minimum rate of pay set by the industrial instrument because of any impairment of the employee.(2) An application may be made by post and may, with the approval of the Industrial Registrar, be made by a person on behalf of the employee.(3) The Industrial Registrar may grant a permit under this section (with or without conditions) or refuse to grant the permit. Any such permit has effect according to its tenor.(4) The Industrial Registrar may at any time cancel any such permit.(5) If the Industrial Registrar grants a permit, the Industrial Registrar must notify the industrial organisation of employees for the industry in which the applicant is employed or intends to be employed of the grant of the permit and its conditions.(6) The organisation may at any time after being given such notice apply to the Industrial Registrar for cancellation of the permit.Note. Under section 194 a person may appeal to the Commission against the granting of or the refusal or failure to grant or the cancellation of a permit.
126 Stand-down orders—suspension of payment of remuneration
(1) The Commission may, on the application of an employer or an industrial organisation of employers, order the stand down of employees of that employer or of members of that organisation if there is no useful work for the employees because of:(a) industrial action, or(b) breakdown of machinery, or(c) any other act or omission,for which the employer or employers concerned are not responsible.(2) The Commission is to give high priority to the hearing and determination of any such application.(3) An employee who is stood down by the Commission is not entitled to any remuneration (including allowances) while stood down. However, this subsection does not apply to any allowance that the Commission considers should be paid despite the stand-down order.(4) The period during which an employee is stood down is to be regarded as a period of employment with the employer for all other purposes, including the accrual of leave and the calculation of superannuation and other entitlements.(5) A stand-down order does not apply to an employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001.
127 Liability of principal contractor for remuneration payable to employees of subcontractor
(1) Application
This section applies where:(a) a person (the principal contractor) has entered into a contract for the carrying out of work by another person (the subcontractor), and(b) employees of that subcontractor are engaged in carrying out the work (the relevant employees), and(c) the work is carried out in connection with a business undertaking of the principal contractor.(2) Liability of principal contractor
The principal contractor is liable for the payment of any remuneration of the relevant employees that has not been paid for work done in connection with the contract during any period of the contract unless the principal contractor has a written statement given by the subcontractor under this section for that period of the contract.(3) Content and form of statement
The written statement is a statement by the subcontractor that all remuneration payable to relevant employees for work under the contract done during that period has been paid. The regulations may make provision for or with respect to the form of the written statement.(4) Retention of copies of statements
The subcontractor must keep a copy of any written statement under this section for at least 6 years after it was given.(5) Payments under contract
The principal contractor may withhold any payment due to the subcontractor under the contract until the subcontractor gives a written statement under this section for any period up to the date of the statement. Any penalty for late payment under the contract does not apply to any payment withheld under this subsection.(6) Remuneration
For the purposes of this section, remuneration means remuneration or other amounts payable to relevant employees by legislation, or under an industrial instrument, in connection with work done by the employees.(7) False statement not effective
The written statement is not effective to relieve the principal contractor of liability under this section if the principal contractor had, when given the statement, reason to believe it was false.(8) False statement is offence
A person who gives the principal contractor a written statement knowing it to be false is guilty of an offence if:(a) the person is the subcontractor, or(b) the person is authorised by the subcontractor to give the statement on behalf of the subcontractor, or(c) the person holds out or represents that the person is authorised by the subcontractor to give the statement on behalf of the subcontractor.Maximum penalty: 100 penalty units.
(9) Recovery
The provisions of this Act relating to the recovery of amounts payable under industrial instruments apply to the recovery of remuneration payable by a principal contractor under this section.(10) Exclusion
This section does not apply in relation to a contract if the subcontractor is in receivership or in the course of being wound up or, in the case of an individual, is bankrupt and if payments made under the contract are made to the receiver, liquidator or trustee in bankruptcy.(11) Application
To avoid doubt, this section extends to a principal contractor who is the owner or occupier of a building for the carrying out of work in connection with the building so long as the building is owned or occupied by the principal contractor in connection with a business undertaking of the principal contractor.(12) Nothing in this section limits or excludes any liability with respect to payment of remuneration by a person who is a principal contractor arising under this Act or any other law or any industrial instrument.
128 Minimum remuneration for musicians
(1) In any contract for the performance of any work involving the supply for reward of any musical entertainment, the consideration for the contract is not to be less than a sum sufficient to pay, to each person engaged in the performance of the work, the remuneration set by any award for a person performing the work as an employee.(2) Any person who offers, enters into or is in any way concerned with a contract that does not comply with this section or who knowingly performs work in pursuance of a contract that does not comply with this section is guilty of an offence.Maximum penalty: 100 penalty units.
129 Records to be kept by employers concerning employees
(1) An employer must ensure that the following daily records are kept in relation to employees of the employer:(a) records of remuneration paid and hours worked by the employees, and(b) any other prescribed records relating to conditions of employment set by the industrial relations legislation or industrial instruments.(2) (Repealed)(3) The records are to be kept in the manner and form prescribed by the regulations or in accordance with different requirements approved in writing by the Industrial Registrar.(4) The employer must ensure that the records are kept for a period of at least 6 years.(5) The regulations may make provision for or with respect to the transfer of any such records, or copies of any such records, to the successor of an employer.(6) A person who contravenes this section or the regulations under this section is guilty of an offence.Maximum penalty: 20 penalty units.