The Fair Work Act 2009 provides for offences relating to cash and in kind payments.
A cash or in kind payment is a benefit that is in cash, any other money form, or goods or services.
If an employer (or their spouse or an associated entity) employs a person whose industrial interests a union is entitled to represent, it is an offence for:
- the employer to offer or provide a cash or in kind payment to the union (or its prohibited beneficiaries)
- the employer to cause a cash or in kind payment to be provided or offered to the union (or its prohibited beneficiaries)
- the union, or an officer or employee of the union to request, receive, or agree to receive a cash or in kind payment from the employer.
This does not include legitimate payments.
A legitimate payment may include any of the following benefits (provided that it is not a corrupt benefit):
- membership fees of an organisation deducted from the wages of employees who have agreed to become a member in writing
- benefits provided and used for the sole or dominant purpose of benefitting the employer’s employees, or former employees in relation to their former employment
- gifts or contributions to a deductible gift recipient
- benefits of nominal value for travel or hospitality during consultation, negotiation or bargaining
- token gifts or event invitations of nominal value given in accordance with common courteous practice among employers and organisations
- payments made at market value for goods and services supplied to an employer in the ordinary course of an organisation’s business
- payments made under or in accordance with a law of the Commonwealth, a state or a territory
- benefits provided in settlement of a genuine legal dispute or in accordance with an order, judgment or award of a court, tribunal or the Commission.
Penalties that apply
An individual who offers, gives, receives or solicits a cash and in kind payment may be imprisoned for up to 2 years and/or may be fined a maximum of 500 penalty units.
A body corporate may be fined a maximum of 2500 penalty units.
Prohibited beneficiary of a union
Prohibited beneficiaries include:
- an entity controlled by the union
- the union’s officers or employees
- an officer or employee’s spouse or controlled entity,
- a person or entity to whom the union or other prohibited beneficiary directs the employer to provide a cash or in kind payment to.
Find out more
See sections 536F and 536G of the Fair Work Act.
Read our corrupting benefits guidance materials.