Fair Work Act 2009

A person (the defendant) commits an offence if:

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

the defendant:

provides a cash or in kind payment to another person; or

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

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

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

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

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.

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

for a body corporate—2,500 penalty units.

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

a payment to the organisation:

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

made for a membership fee payable by the employee;

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;

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

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

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

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

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

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;

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

a benefit provided in accordance with an order, judgment or award of a court or tribunal, or in settlement of a matter before the FWC or a genuine legal dispute;

a non‑corrupting benefit prescribed by, or provided in circumstances prescribed by, the regulations.

A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).

A cash or in kind payment is a benefit that is:

in cash or any other money form; or

goods or services; or

prescribed by the regulations for the purposes of this paragraph.

A person is a prohibited beneficiary in relation to an employee organisation if the person is any of the following:

an entity controlled by the organisation;

a registered organisations officer or employee in relation to the organisation;

a spouse of, or entity controlled by, such an officer or employee;

a person or entity to whom the organisation or a prohibited beneficiary of the organisation requests or directs the defendant to provide a cash or in kind payment;

a person who has a prescribed connection with the organisation or a prohibited beneficiary of the organisation.

In subsection (5), control, entity and spouse have the same meanings as in the Registered Organisations Act.

Sections 30D and 30N do not apply to extend the meaning of national system employer in this section.