Minimum Conditions of Employment Act 1993 (WA)

Western Australia Minimum Conditions of Employment Act 1993 Western Australia Minimum Conditions of Employment Act 1993 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 2A. Objects of Act 1 3. Terms used 1 4. Application to Crown 1 Part 2 — Application of minimum conditions 5. Minimum conditions extend to and bind all employers and employees 1 6. Application offshore 1 6A. Application to police officers 1 7. Enforcement of minimum conditions 1 8. Cashing out accrued paid annual leave 1 Part 2A — Reasonable hours of work 9A. Maximum hours of work 1 9B. Reasonable additional hours 1 Part 3 — Minimum rates of pay Division 1 — General 10. Entitlement of employees to be paid minimum rate of pay 1 11. Minimum rate of pay for casual employees includes loading 1 12. Minimum weekly rate of pay for employees aged 21 or more 1 13. Minimum weekly rate of pay for employees aged under 21 1 14. Minimum weekly rates of pay for apprentices 1 Division 2 — Employees with disabilities 15. Terms used 1 16. Application of Act to employee with disability 1 17. Minimum pay for employee with disability 1 Part 3A — Other requirements as to pay 17A. Terms used 1 17B. Employee not to be compelled to accept other than money for pay 1 17BA. Employees and prospective employees not to be unreasonably compelled to spend or pay amount 1 17C. Methods for paying employee 1 17D. Authorised deductions from pay 1 17E. Certain terms of no effect 1 Part 4 — Minimum leave conditions Division 1 — Preliminary 18. Rate of pay and average weekly hours for paid leave 1 18A. Rate of pay for paid leave for employee paid wholly by commission or percentage reward or at piece rates 1 18B. Rate of pay for paid leave for employee entitled to receive income compensation 1 Division 2 — Personal leave 19. Personal leave 1 20. Entitlement to paid personal leave 1 20A. Taking paid personal leave 1 21. Entitlement to unpaid personal leave 1 22. Certain matters as to personal leave not minimum conditions 1 22A. Employee to prove entitlements to personal leave 1 Division 3 — Paid annual leave 23. Entitlement to paid annual leave 1 24. Taking paid annual leave 1 25. When employee must be paid for paid annual leave 1 26. Paying out paid annual leave when employment ends 1 Division 4 — Paid bereavement leave 27. Entitlement to paid bereavement leave 1 27A. Paid bereavement leave for compensated employee 1 28. Proof of entitlement may be required 1 Division 5 — Public holidays 29. Application of Division 1 30. Employee entitled to be absent from work on public holiday 1 31. Employee entitled to be paid for public holiday 1 32. Substituted public holiday 1 33. Employee taken not to be on paid annual leave or paid personal leave on public holiday 1 Division 7 — Unpaid family and domestic violence leave 39A. Term used: unpaid family and domestic violence leave 1 39B. Entitlement to unpaid family and domestic violence leave 1 39C. Taking unpaid family and domestic violence leave 1 39D. Employee to prove entitlements to unpaid family and domestic violence leave 1 39E. Confidentiality 1 Part 4A — Flexible working arrangement requests 39F. Employee may request flexible working arrangement 1 39G. Formal requirements 1 39H. Responding to flexible working arrangement request 1 39I. Reasonable business grounds for refusing request 1 39J. Employer must explain grounds for refusal 1 39K. Employer and employee must attempt to resolve dispute by discussions at workplace level 1 Part 5 — Minimum conditions for employment changes with significant effect, and redundancy 40. Terms used 1 41. Employee to be informed 1 42. Employer not bound to disclose prejudicial information 1 43. Paid leave for job interviews, entitlement to 1 Part 7 — Regulations 47. Regulations 1 Part 8 — Transitional provisions for Industrial Relations Legislation Amendment Act 2021 48. Term used: commencement day 1 49. Employees with disabilities 1 50. "Under rate employee" provisions in awards 1 Schedule 1 — Public holidays Notes Compilation table 1 Other notes 1 Defined terms Minimum Conditions of Employment Act 1993 An Act to provide for minimum conditions of employment for employees in Western Australia and for related purposes. Part 1 — Preliminary 1. Short title This Act may be cited as the Minimum Conditions of Employment Act 1993. 2. Commencement This Act comes into operation on the day on which the Workplace Agreements Act 1993 1 comes into operation. 2A. Objects of Act The objects of this Act are — (a) to provide for fair and enforceable minimum conditions of employment; and (b) to assist families to balance work and family responsibilities, including by providing for minimum conditions of employment related to an employee requesting a flexible working arrangement. [Section 2A inserted: No. 43 of 2024 s. 106.] 3. Terms used (1) In this Act, unless the contrary intention appears — annual leave means leave provided for under Division 3 of Part 4; apprentice has the same meaning as in the IR Act; award has the meaning given in the IR Act section 7(1); Commission has the meaning given in the IR Act section 7(1); compensated employee has the meaning given in section 18B(1)(b); compensated employee rate, in relation to a compensated employee, has the meaning given in section 18B(2); continuous service means service under an unbroken contract of employment and includes any period of leave or absence authorised by the employer or by an industrial instrument, a contract of employment or this Act; employee has the meaning given in the IR Act section 7(1); Note for this definition: See also the IR Act sections 7A and 7B, which apply for the purposes of determining, for this Act, whether an individual is an employee or a casual employee of a person. employer has the same meaning as in the IR Act; Note for this definition: See also the IR Act section 7A, which applies for the purposes of determining, for this Act, whether a person is an employer of an individual. entitled to receive income compensation, in relation to an employee, has the meaning given in section 18B(1)(a); family and domestic violence means family violence as defined in the Restraining Orders Act 1997 section 5A; flexible working arrangement dispute has the meaning given in the IR Act section 51D; flexible working arrangement request has the meaning given in section 39F(1); income compensation has the meaning given in the Workers Compensation and Injury Management Act 2023 section 5; industrial instrument means — (a) an award; or (b) an employer‑employee agreement as defined in the IR Act section 7(1); or (c) an industrial agreement registered under the IR Act Part II Division 2B; or (d) an order of the Commission under the IR Act; IR Act means the Industrial Relations Act 1979; member of the employee's family or household means any of the following persons — (a) the employee's spouse or de facto partner; (b) a child, step‑child or grandchild of the employee or the employee's spouse or de facto partner (including an adult child, step‑child or grandchild); (c) a parent, step‑parent or grandparent of the employee or the employee's spouse or de facto partner; (d) a sibling of the employee or the employee's spouse or de facto partner; (e) any other person who, at or immediately before the relevant time for assessing the employee's eligibility to take leave, lived with the employee as a member of the employee's household; minimum condition of employment means — (aa) the requirement as to maximum hours of work prescribed by Part 2A; or (a) a rate of pay prescribed by Part 3; or (b) a requirement as to pay, other than a rate of pay, prescribed by Part 3A; or (c) an entitlement prescribed by Part 4 relating to paid personal leave, unpaid personal leave, paid annual leave, paid bereavement leave or unpaid family and domestic violence leave; or (d) the use, in a manner prescribed by Part 4, of an entitlement to leave referred to in paragraph (c), including in relation to — (i) taking leave; or (ii) payment for leave; or (iii) proof of entitlement to leave; or (e) a condition prescribed by Part 5; or (f) the requirement as to confidentiality prescribed by section 39E(1); or (g) an entitlement prescribed by Part 4 relating to a public holiday, including — (i) to be absent from work on a public holiday; or (ii) to be paid if absent from work on a public holiday; or (iii) to refuse (on reasonable grounds) a request to work on a public holiday; or (h) an entitlement prescribed by Part 4 relating to a day or part of a day that is substituted for a public holiday; or (i) an entitlement or obligation prescribed by Part 4A relating to a flexible working arrangement request, including — (i) an entitlement to make a request in any of the circumstances referred to in section 39F(2); or (ii) an obligation to respond to that request. organisation has the meaning given in the IR Act section 7(1); paid family and domestic violence leave means — (a) paid family and domestic violence leave to which a non‑national system employee is entitled under the Fair Work Act 2009 (Commonwealth) Part 6‑3 Division 2A; or (b) paid leave for reasons relating to family and domestic violence to which an employee is entitled under an industrial instrument or contract of employment; public holiday, in relation to an employee, means a day mentioned in Schedule 1 that is a public holiday in the area of the State where the employee is based for work purposes; year of service does not include any period of unpaid leave. (2) In this Act a reference to a period worked does not include a reference to a period outside the hours the employee was required ordinarily to work during which the employee was on call. (3) For the purposes of subsection (2), the employee was on call in a period if, in that period the employee was required — (a) to remain at the employee's place of employment; or (b) to be available to undertake duties of employment, but was not required to undertake any other duty of employment. [Section 3 amended: No. 79 of 1995 s. 66(5); No. 58 of 1996 s. 4; No. 20 of 2002 s. 22(2), 164 and 177; No. 28 of 2003 s. 144; Gazette 15 Aug 2003 p. 3688; No. 36 of 2006 s. 4 and 28; No. 22 of 2008 Sch. 3 cl. 36; No. 44 of 2008 s. 56(2)‑(3); No. 35 of 2010 s. 116; No. 30 of 2021 s. 100 and 121(1); No. 43 of 2024 s. 107.] 4. Application to Crown This Act binds the Crown. Part 2 — Application of minimum conditions 5. Minimum conditions extend to and bind all employers and employees (1) The minimum conditions of employment extend to and bind all employees and employers and cannot be displaced by an industrial instrument or contract of employment. (2) A provision in, or condition of, an industrial instrument or a contract of employment that is less favourable to the employee than a minimum condition of employment has no effect and the minimum condition is taken to be the term of the industrial instrument or contract of employment instead. (3) A provision in, or condition of, an agreement or arrangement that purports to exclude the operation of this Act has no effect, but without prejudice to other provisions or conditions of the agreement or arrangement. (4) A purported waiver of a right under this Act has no effect. (5) This section has effect subject to section 8. [Section 5 amended: No. 20 of 2002 s. 22(3)‑(4); Gazette 15 Aug 2003 p. 3688; No. 30 of 2021 s. 101; No. 43 of 2024 s. 108.] 6. Application offshore (1) Where, under the IR Act section 3, that Act applies to and in relation to employers and employees in any industry carried on wholly or partly in an offshore area — (a) this Act applies to those employers and employees; and (b) the IR Act section 3(4) applies with all necessary changes for the purposes of this Act. (2) In subsection (1), offshore area means the areas referred to in section 3(3) of the IR Act. (3) Subsection (1) has effect only where this Act or any provision of this Act would not otherwise apply as a law of the State, or be applied as a law of the Commonwealth, to or in relation to any person, circumstance, thing or place. [Section 6 amended: No. 20 of 2002 s. 177; No. 43 of 2024 s. 109.] 6A. Application to police officers This Act applies to a police officer as if — (a) the police officer were an employee; and (b) the Commissioner of Police were the employer of the police officer. [Section 6A inserted: No. 43 of 2024 s. 110.] 7. Enforcement of minimum conditions A minimum condition of employment may be enforced under the IR Act section 83 — (a) as an entitlement provision; or (b) if the condition is taken to be a term of an industrial instrument under section 5(2) — as a provision of the instrument. [Section 7 amended: No. 30 of 2021 s. 102; No. 43 of 2024 s. 111.] 8. Cashing out accrued paid annual leave (1) After the completion of any year of service by an employee, the employer and employee may agree that the employee may forgo taking paid annual leave to which the employee became entitled in relation to that year of service if — (a) the amount of paid annual leave forgone does not exceed 50% of the whole amount of paid annual leave to which the employee became entitled in relation to that year of service; and (b) the employee is given an equivalent benefit in lieu of the amount of paid annual leave forgone; and (c) the agreement is in writing, signed by the employer and the employee. (2) A benefit is not equivalent to forgone paid annual leave unless the employee is paid at least the amount the employee would have been paid had the employee taken the forgone leave. (2A) The employer and employee may make a subsequent agreement in relation to the same year of service. (2B) Subsection (1) applies to a subsequent agreement as if a reference to the amount of paid annual leave in subsection (1)(a) were a reference to the total amount of paid annual leave forgone under all agreements made in relation to that year of service. (2C) An agreement referred to in subsection (1) or (2A) is of no effect if — (a) the employer's offer of employment was made on the condition that the employee would be required to enter into the agreement; or (b) it does not comply with subsection (1) or (2B). (3) The employer must not — (a) require the employee to forgo taking an amount of paid annual leave; or (b) exert undue influence or undue pressure on the employee in relation to the making of a decision by the employee whether or not to forgo taking an amount of paid annual leave. (4) A contravention of subsection (3) is not an offence but that subsection is a civil penalty provision for the purposes of section 83E of the IR Act. [Section 8 amended: No. 20 of 2002 s. 165(1) and (2); No. 36 of 2006 s. 29; No. 30 of 2021 s. 103; No. 43 of 2024 s. 112.] [9. Deleted: No. 30 of 2021 s. 104.] Part 2A — Reasonable hours of work [Heading inserted: No. 36 of 2006 s. 5.] 9A. Maximum hours of work (1) An employee is not to be required or requested by an employer to work more than — (a) either — (i) the employee's ordinary hours of work as specified in an industrial instrument that applies to the employment of the employee; or (ii) if there is no industrial instrument that specifies the employee's ordinary hours of work, 38 hours per week; and (b) reasonable additional hours as determined under section 9B. (2) For the purpose of subsection (1), in calculating the number of hours that an employee has worked in a particular week, the hours worked by the employee are taken to include any hours of authorised leave taken by the employee during the week. (3) Nothing in this section, or section 5(2), restricts the number of ordinary hours of work that may be specified in an industrial instrument. (4) In this section — authorised leave means leave, or an absence, whether paid or unpaid, that is authorised — (a) by an employee's employer; or (b) by or under a term or condition of an employee's employment; or (c) by or under a law, or an instrument in force under a law, of the State or the Commonwealth. [Section 9A inserted: No. 36 of 2006 s. 5; amended: No. 30 of 2021 s. 105.] 9B. Reasonable additional hours (1) For the purposes of section 9A(1)(b), in determining whether additional hours that an employee is required or requested by an employer to work are reasonable additional hours, all relevant factors are to be taken into account. (2) The factors that may be taken into account include, but are not limited to, the following — (a) any risk to the employee's safety and health that might reasonably be expected to arise if the employee worked the additional hours; (b) the employee's personal circumstances (including family responsibilities); (c) the conduct of the operations or business in relation to which the employee is required or requested to work the additional hours; (d) any notice given by the employer of the requirement or request that the employee work the additional hours; (e) any notice given by the employee of the employee's intention to refuse to work the additional hours; (f) whether any of the additional hours are on a public holiday in the area of the State where the employee is required or requested to work; (g) the employee's hours of work over the 4 weeks ending immediately before the employee is required or requested to work the additional hours. [Section 9B inserted: No. 36 of 2006 s. 5; amended: No. 30 of 2021 s. 106.] Part 3 — Minimum rates of pay [Heading inserted: No. 20 of 2002 s. 167.] Division 1 — General [Heading inserted: No. 30 of 2021 s. 107.] 10. Entitlement of employees to be paid minimum rate of pay (1) Except as provided in section 16, an employee is entitled to be paid, for each hour worked by the employee in a week, the minimum weekly rate of pay applicable to the employee under section 12, 13 or 14, divided by 38. (2) Nothing in this section prevents an industrial instrument from providing for minimum rates of pay for an employee with a disability. [Section 10 inserted: No. 20 of 2002 s. 167; amended: No. 30 of 2021 s. 108.] 11. Minimum rate of pay for casual employees includes loading (1) A casual employee is entitled to be paid the amount which the employee is entitled to be paid under section 10 plus the prescribed percentage of that amount. (2) In subsection (1) — prescribed percentage means — (a) 25%; or (b) if a percentage higher than 25% is set by order under section 51I of the IR Act for the purposes of this section, that percentage. [Section 11 inserted: No. 20 of 2002 s. 167; amended: No. 30 of 2021 s. 121(2); No. 43 of 2024 s. 113.] 12. Minimum weekly rate of pay for employees aged 21 or more The minimum weekly rate of pay applicable at a particular time to an employee — (a) who has reached 21 years of age; and (b) who is not an apprentice, is the rate in effect at that time under section 50A(1)(a)(i) of the IR Act in relation to employees who have reached 21 years of age and who are not apprentices. [Section 12 inserted: No. 20 of 2002 s. 167; amended: No. 36 of 2006 s. 21(2); No. 44 of 2008 s. 56(4).] 13. Minimum weekly rate of pay for employees aged under 21 The minimum weekly rate of pay applicable at a particular time to an employee — (a) who is of the age mentioned in the first column in the Table to this section; and (b) who is not an apprentice, is the percentage, set out opposite that age in the second column in the Table, of the rate referred to in section 12 in effect at that time, rounded to the nearest 10 cents. Table Age Percentage of 21 year old rate 20 years 90% 19 years 80% 18 years 70% 17 years 60% 16 years 50% Under 16 years 40% [Section 13 inserted: No. 20 of 2002 s. 167; amended: No. 44 of 2008 s. 56(5); No. 43 of 2024 s. 114.] 14. Minimum weekly rates of pay for apprentices The minimum weekly rate of pay applicable at a particular time to an employee who is an apprentice — (a) in the case where a rate is in effect at that time under section 50A(1)(a)(ii) of the IR Act in relation to the class of apprentice to which the employee belongs, is that rate; (b) otherwise, is the rate in effect at that time under section 50A(1)(a)(ii) of the IR Act in relation to apprentices generally. [Section 14 inserted: No. 20 of 2002 s. 167; amended: No. 36 of 2006 s. 21(3).] Division 2 — Employees with disabilities [Heading inserted: No. 30 of 2021 s. 109.] 15. Terms used In this Division — employee with a disability means an employee whose productive capacity — (a) has been assessed under — (i) the SWS; or (ii) a supported wage industrial instrument provision; and (b) is assessed as being reduced because of a disability; instrument‑free employee with a disability means an employee — (a) whose contract of employment is not governed by an industrial instrument; and (b) whose productive capacity has been assessed under the SWS as being reduced because of a disability; instrument‑governed employee with a disability means an employee — (a) whose contract of employment is governed by an industrial instrument that includes a SWIIP that incorporates the SWS; and (b) whose productive capacity has been assessed under the SWS as being reduced because of a disability; and (c) who is not employed by a supported employment service; and (d) who is being paid a weekly rate of pay determined by the SWS under the SWIIP; supported employment service means a service to support the paid employment of persons with disability, being persons — (a) for whom competitive employment at or above the wage payable under the relevant award is unlikely; and (b) who, because of their disability, need substantial ongoing support to obtain or retain paid employment; supported wage industrial instrument provision or SWIIP means a provision of an industrial instrument that — (a) applies to an employee with a disability; and (b) provides a means (a wage assessment tool) for the assessment of whether, and the extent to which, the employee's productive capacity is reduced because of the disability; and (c) provides that the employer may pay a wage that — (i) relates to the employee's productive capacity as assessed using the wage assessment tool; and (ii) may be less than the applicable minimum wage in the industrial instrument; Supported Wage System or SWS means the scheme known by that name established by the Commonwealth Government to enable the assessment of whether, and the extent to which, a person's productive capacity is reduced because of a disability. [Section 15 inserted: No. 30 of 2021 s. 109; amended: No. 43 of 2024 s. 115.] 16. Application of Act to employee with disability (1) Section 10 does not apply to an employee with a disability who has been assessed under the SWS or a SWIIP and is being paid a rate of pay in accordance with that assessment. (2) A person eligible to be employed under the SWS may be employed under its provisions for the purposes of this Act. [Section 16 inserted: No. 30 of 2021 s. 109.] 17. Minimum pay for employee with disability (1) This section applies to the following — (a) an instrument‑free employee with a disability; (b) an instrument‑governed employee with a disability; (c) an employee who is employed for a trial period for the purpose of an assessment under the SWS as to whether the employee will become an employee referred to in paragraph (a) or (b). (2) Except as provided in subsection (3), the minimum amount payable for each week worked by the employee is an amount not less than the amount in effect at that time under the IR Act section 50A(1)(a)(iii), regardless of the number of hours worked by the employee during the relevant week. (3) An instrument‑free employee with a disability is entitled to be paid the higher of the following amounts — (a) for each hour worked by the employee in a week, an amount calculated by — (i) determining the weekly rate of pay applicable to the employee by reference to the percentage of the rate referred to in section 12 that corresponds to the employee's assessed productive capacity under the SWS, rounded up to the nearest 10 cents; and (ii) dividing that weekly rate by 38; (b) the amount referred to in subsection (2). [Section 17 inserted: No. 30 of 2021 s. 109.] Part 3A — Other requirements as to pay [Heading inserted: No. 79 of 1995 s. 66(6).] 17A. Terms used (1A) In this Part — party related, to an employer or prospective employer, means a relative of the employer or prospective employer; relative, of an employer, means — (a) each of the following people, whether the relationship is established by, or traced through, consanguinity, marriage, a de facto relationship, a written law or a natural relationship — (i) a parent, grandparent or other ancestor; (ii) a step‑parent; (iii) a sibling; (iv) an uncle or aunt; (v) a cousin; (vi) a spouse or de facto partner; or (b) in the case of an employer who is an Aboriginal person or Torres Strait Islander — a person regarded under the customary law or tradition of the employer's community as the equivalent of a person mentioned in paragraph (a). (1) A reference in this Part to an employee includes a reference to any person in any manner employed for wages in work of any kind or in manual labour. (2) In subsection (1), wages includes any money or thing had or contracted to be paid, delivered, or given as a recompense, reward, or remuneration. (3) A reference in this Part to the contract of employment only applies if the contract is in writing. [Section 17A inserted: No. 79 of 1995 s. 66(6); amended: No. 30 of 2021 s. 110.] 17B. Employee not to be compelled to accept other than money for pay (1) An employee is not to be directly or indirectly compelled by an employer to accept, instead of money as any part of the employee's pay — (a) goods of any kind; or (b) accommodation or other services of any kind. (2) In proceedings under the IR Act section 83 to enforce an entitlement provision, anything given or provided by the employer contrary to subsection (1) is to be treated as if it had never been given or provided. [Section 17B inserted: No. 30 of 2021 s. 111.] 17BA. Employees and prospective employees not to be unreasonably compelled to spend or pay amount (1) An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee's money or the whole or any part of an amount payable to the employee in relation to the performance of work, if — (a) the requirement is unreasonable in the circumstances; and (b) in the case of a payment — the payment is directly or indirectly for the benefit of the employer or a party related to the employer. (2) An employer (the prospective employer) must not directly or indirectly require another person (the prospective employee) to spend, or pay to the prospective employer or any other person, an amount of the prospective employee's money if — (a) the requirement is in connection with employment or potential employment of the prospective employee by the prospective employer; and (b) the requirement is unreasonable in the circumstances; and (c) in the case of a payment — the payment is directly or indirectly for the benefit of the prospective employer or a party related to the prospective employer. (3) The regulations may prescribe circumstances in which a requirement referred to in subsection (1) or (2) is or is not reasonable. (4) A contravention of subsection (1) or (2) is not an offence but that subsection is a civil penalty provision for the purposes of the IR Act section 83E. (5) In proceedings under the IR Act section 83E for a contravention of subsection (1), an industrial magistrate's court may, as an alternative, determine that a contravention of an entitlement provision has occurred for the purposes of the IR Act section 83. (6) If the industrial magistrate's court determines that an employer has contravened subsection (1) or (2) in respect of an employee or prospective employee, the industrial magistrate's court may order the employer to pay to the employee or prospective employee compensation for any loss or injury suffered as a result of the contravention. (7) The industrial magistrate's court may make an order under subsection (6) in addition to imposing a penalty under section 83E. (8) A term of an industrial instrument or contract of employment has no effect to the extent that the term — (a) permits, or has the effect of permitting, an employer to make a requirement that would contravene subsection (1); or (b) directly or indirectly requires an employee to spend or pay an amount, if the requirement would contravene subsection (1) if it had been made by an employer. (9) In proceedings under the IR Act section 83 to enforce an entitlement provision, any amount that the employee has been required to spend or pay contrary to subsection (1), or in accordance with a term to which subsection (8) applies, is taken to be a deduction, from an amount payable to the employee, made by the employer otherwise than in accordance with section 17D. [Section 17BA inserted: No. 30 of 2021 s. 112; amended: No. 43 of 2024 s. 116.] 17C. Methods for paying employee (1) An employee is entitled to be paid in full and payment is to be made — (a) in cash; or (b) by cheque, postal order or money order payable to the employee; or (c) by payment into an account, specified by the employee, with a bank or financial institution; or (d) in any other manner authorised or required under an industrial instrument or contract of employment. (2) In the case of any employee who is not employed by the Crown, payment can be made under subsection (1)(b) or (c) if, and only if, the employee so authorises. (3) A contravention of subsection (1) is not an offence but that subsection is a civil penalty provision for the purposes of the IR Act section 83E. (4) In proceedings under the IR Act section 83E for a contravention of subsection (1), an industrial magistrate's court may, as an alternative, determine that a contravention of an entitlement provision has occurred for the purposes of the IR Act section 83. (5) In proceedings under the IR Act section 83 to enforce an entitlement provision, anything given or provided by the employer contrary to subsection (1) is taken never to have been given or provided to the employee. [Section 17C inserted: No. 79 of 1995 s. 66(6); amended: No. 20 of 2002 s. 22(7); Gazette 15 Aug 2003 p. 3688; No. 30 of 2021 s. 113; No. 43 of 2024 s. 117.] 17D. Authorised deductions from pay (1) Despite section 17C, an employer may deduct from an employee's pay — (a) an amount the employer is authorised, in writing, by the employee to deduct and pay on behalf of the employee; and (b) an amount the employer is authorised to deduct and pay on behalf of the employee under an industrial instrument or contract of employment; and (c) an amount the employer is authorised or required to deduct by order of a court or under a law of the State or the Commonwealth. (2) The employee is entitled to have any amount deducted under subsection (1) paid by the employer in accordance with the employee's instructions or in accordance with the requirements of the industrial instrument, contract of employment, court order or law of the State or the Commonwealth (as the case may be). (3) Nothing in this section requires an employer to make deductions requested by an employee. (4) An employee may, by giving written notice to the employer, withdraw an authorisation under subsection (1)(a). [Section 17D inserted: No. 79 of 1995 s. 66(6); amended: No. 20 of 2002 s. 22(7); amended: Gazette 15 Aug 2003 p. 3688; No. 43 of 2024 s. 118.] 17E. Certain terms of no effect (1) A term of an industrial instrument or contract of employment has no effect to the extent that the term permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work, if the deduction is — (a) directly or indirectly for the benefit of the employer or a party related to the employer; and (b) unreasonable in the circumstances. (2) The regulations may prescribe circumstances in which a deduction referred to in subsection (1)(b) is or is not reasonable. (3) A term of an industrial instrument or contract of employment has no effect to the extent that the term permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee who has not reached 18 years of age in relation to the performance of work by the employee, unless the deduction is agreed to in writing by a parent or guardian of the employee. (4) A term of an industrial instrument or contract of employment has no effect to the extent that the term requires, or has the effect of requiring, an employe