Section 716 — Fair Work Act 2009: Compliance notices

Application of this section (1) This section applies if an inspector reasonably believes that a person has contravened one or more of the following: (a) a provision of the National Employment Standards; (b) a term of a modern award; (c) a term of an enterprise agreement; (d) a term of a workplace determination; (e) a term of a national minimum wage order; (f) a term of an equal remuneration order; (fa) subsection 536AA(1) or (2) (which deal with employer obligations in relation to advertising rates of pay); (fb) a term of a minimum standards order; (fc) a term of a road transport contractual chain order; (g) a provision of Part 6-4C (which deals with the Coronavirus economic response); (h) a jobkeeper enabling direction (within the meaning of Part 6-4C); (i) a provision of an agreement authorised by Part 6-4C. Giving a notice (2) The inspector may, except as provided by subsection (4), give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice: (a) take specified action to remedy the direct effects of the contravention referred to in subsection (1) (including to calculate and pay the amount of any underpayment); (b) produce reasonable evidence of the person’s compliance with the notice. (3) The notice must also: (a) set out the name of the person to whom the notice is given; and (b) set out the name of the inspector who gave the notice; and (c) set out brief details of the contravention; and (d) explain that a failure to comply with the notice may contravene a civil remedy provision; and (e) explain that the person may apply to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court for a review of the notice on either or both of the following grounds: (i) the person has not committed a contravention set out in the notice; (ii) the notice does not comply with subsection (2) or this subsection; and (f) set out any other matters prescribed by the regulations. Relationship with enforceable undertakings (4) An inspector must not give a person a notice in relation to a contravention if: (a) the person has given an undertaking under section 715 in relation to the contravention; and (b) the undertaking has not been withdrawn. Relationship with civil remedy provisions (4A) An inspector must not apply for an order under Division 2 of Part 4-1 in relation to a contravention of a civil remedy provision by a person if: (a) the inspector has given the person a notice in relation to the contravention; and (b) either of the following subparagraphs applies: (i) the notice has not been withdrawn, and the person has complied with the notice; (ii) the person has made an application under section 717 in relation to the notice that has not been completely dealt with. Note: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so. (4B) A person who complies with a notice in relation to a contravention of a civil remedy provision is not taken: (a) to have admitted to contravening the provision; or (b) to have been found to have contravened the provision. Person must not fail to comply with notice (5) A person must not fail to comply with a notice given under this section. Note: This subsection is a civil remedy provision (see Part 4-1). (6) Subsection (5) does not apply if the person has a reasonable excuse.