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Fair Work Amendment (Protecting Australian Workers) Bill 2016

Schedule 1 Main amendments

   

Fair Work Act 2009

1  After subsection 7(2)

Insert:

          (2A)  Part 4-1A contains offences for serious contraventions of this Act that involve the use of coercion or threats.

2  Section 12

Insert:

disqualification order means an order under subsection 546A(1).

executive officer of a company: see subsection 545A(2).

phoenixing compensation order means an order under subsection 545A(1).

pre-liquidation name : see subsection 545A(7).

temporary overseas worker means an individual who:

                     (a)  is the holder of a temporary visa (within the meaning of the Migration Act 1958 ); and

                     (b)  may perform work in Australia in accordance with the visa:

                              (i)  without restriction; or

                             (ii)  subject to one or more conditions.

3  At the end of Division 3 of Part 1-2

Add:

15A   Effect of migration laws

                   None of the following affect whether a person employs, or usually employs, an individual for the purposes of this Act:

                     (a)  the fact that the individual is an unlawful non-citizen for the purposes of the Migration Act 1958 ;

                     (b)  the fact that the individual, or a person other than the individual, has contravened that Act or breached a condition of a visa granted under that Act;

                     (c)  the fact that the individual is no longer entitled to remain in in Australia in accordance with a visa granted under that Act.

4  After subsection 124(2)

Insert:

          (2A)  The Statement must contain the prescribed information about:

                     (a)  the relationship between workplace laws and the Migration Act 1958 ; and

                     (b)  opportunities for redress for temporary overseas workers affected by contraventions of workplace laws.

          (2B)  The Fair Work Ombudsman must cause the Statement to be translated into the languages prescribed by the regulation s for the purposes of this subsection.

          (2C)  The Fair Work Ombudsman must publish the translations of the Statement in the Gazette .

5  Subsection 124(3)

Omit “is not a legislative instrument ”, substitute “, and the translations required by subsection (2B), are not legislative instruments”.

6  After subsection 125(1)

Insert:

          (1A)  If an employer reasonably believes that an employee is not proficient in writt en English, and the Statement has been translated in accordance with subsection 124(2B) into a language in which the employee is more proficient, the employer must for the purposes of subsection (1) give the employee the translation of the Statement in that language.

7  Subsection 167(3)

Omit “order the person to pay a pecuniary penalty under Division 2 of Part 4-1”, substitute “make a pecuniary penalty order, a disqualification order or a phoenixing compensation order”.

8  Subsection 298(2)

Omit “order the person to pay a pecuniary penalty under Division 2 of Part 4-1”, substitute “make a pecuniary penalty order, a disqualification order or a phoenixing compensation order”.

9  At the end of section 340

Add:

             (3)  A person must not take adverse action against another person (the second person ) because the second person raises, has raised, or proposes to raise an issue or concern about whether the second person or a third person has a workplace right.

Note:          This subsection is a civil remedy provision (see Part 4-1).

10  Subsection 357(2)

Repeal the subsection, substitute:

             (2)  Subsection (1) does not apply if the employer proves that, when the representation was made, the employer:

                     (a)  believed that the contract was a contract for services rather than a contract of employment; and

                     (b)  could not reasonably have been expected to know that the contract was a contract of employment rather than a contract for services.

11  Subsection 539(2)

After “including”, insert “(subject to subsections 546(2) and (2A))”.

12  Subsection 539(2) (table item 11, column 1)

After “340(2)”, insert “340(3)”.

13  Subsections 545(1), (3) and (3A) (note 1)

Repeal the note, substitute:

Note 1:       For the court’s power to make phoenixing compensation orders, see section 545A.

Note 1A:    For the court’s power to make pecuniary penalty orders, see section 546.

Note 1B:    For the court’s power to make disqualification orders, see section 546A.

14  After section 545

Insert:

545A   Orders requiring executive officers of phoenix companies to pay amounts owed by failed companies

             (1)  The Federal Court, the Federal Circuit Court or an eligible State or Territory court must order that a person (the liable person ) pay an amount to, or on behalf of, another person (the affected person ) if the court is satisfied that:

                     (a)  a company registered under the Corporations Act 2001 (the failed company ) contravened subsection 44(1), section 45, 50, 280, 293 or 305 or subsection 323(1) or 357(1); and

                     (b)  the contravention involved a failure by the failed company to pay an amount (the underpayment ) that it was required to pay to, or on behalf of, the affected person under this Act or a fair work instrument; and

                     (c)  the liable person was an executive officer of the failed company at the time of the contravention; and

                     (d)  after the contravention, the failed company was wound up; and

                     (e)  an unsecured debt or claim was proved in the winding up; and

                      (f)  the relevant date (within the meaning of the Corporations Act 2001 ) in relation to the winding up is on or after the commencement of this subsection; and

                     (g)  the liable person becomes an executive officer of a company (the phoenix company ) that is registered under the Corporations Act 2001 within 12 months after the failed company was wound up; and

                     (h)  the phoenix company uses any of the assets that were used by the failed company before it was wound up; and

                      (i)  some or all of the underpayment remains unpaid (whether by the failed company, the phoenix company or any other person) to the person or persons to whom it should have been paid; and

                      (j)  the liable person should not be exempt from this section in relation to the contravention.

Note:          Phoenixing compensation orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).

Meaning of executive officer

             (2)  An executive officer of a company registered under the Corporations Act 2001 is a person, by whatever name called and whether or not a director of the company, who is concerned in, or takes part in, the management of the company.

Amount payable under order

             (3)  In determining the amount payable under the order, the court must ensure that the combined effect of all orders made under this section in relation to the contravention is that the whole of the underpayment is paid to the person or persons to whom it should have been paid.

When orders may be made

             (4)  The court may make the order:

                     (a)  on its own initiative, during proceedings before the court; or

                     (b)  on application.

Exemptions

             (5)  The court may exempt the liable person in relation to the contravention only if:

                     (a)  the court is satisfied that the liable person has acted honestly; and

                     (b)  having regard to all the circumstances of the case, the liable person ought fairly to be exempt from this section in relation to the contravention.

             (6)  In exercising its powers under subsection (5), the court must have regard to the following matters:

                     (a)  whether:

                              (i)  at a time when the liable person was an executive officer of the failed company, the failed company incurred a debt; and

                             (ii)  immediately before the time when the debt was incurred, there were no reasonable grounds to expect that the failed company would be able to pay the debt;

                     (b)  the extent to which, and the circumstances in which, any assets of the failed company have become assets of the phoenix company;

                     (c)  the extent to which, and the circumstances in which, any individuals who were employed by the failed company have become employees of the phoenix company;

                     (d)  the extent to which, and the circumstances in which, any premises that were used by the failed company have become premises used by the phoenix company;

                     (e)  the extent to which, and the circumstances in which, the phoenix company uses:

                              (i)  a pre-liquidation name of the failed company; or

                             (ii)  a name that is so similar to a pre-liquidation name of the failed company as to suggest an association with the failed company;

                      (f)  the extent to which, and the circumstances in which, any of the following contact details that were used by the failed company have become contact details used by the phoenix company:

                              (i)  a telephone number;

                             (ii)  a fax number;

                            (iii)  an email address;

                            (iv)  an internet domain name;

                             (v)  an internet URL;

                     (g)  whether anything done, or omitted to be done, by the liable person or the phoenix company is likely to create the misleading impression that the failed company and the phoenix company are the same entity;

                     (h)  whether an order under this section has previously been made for the liable person;

                      (i)  any other relevant matters.

Meaning of pre-liquidation name

             (7)  A pre-liquidation name of a company that has been wound up is a name by which the company was known at any time during the 12-month period ending at the start of the relevant date (within the meaning of the Corporations Act 2001 ) in relation to the winding up of the company.

             (8)  For the purposes of subsection (7), a company is known by each of the following names:

                     (a)  the name of the company;

                     (b)  if the company carries on its business, or a part of its business, under a particular name—that name.

Time limit for orders in relation to underpayments

             (9)  The court must not make an order under this section if the underpayment relates to a period that is more than 6 years before the proceedings concerned commenced.

No limitation on orders

           (10)  This section does not limit the orders that may be made under section 545, 546 or 546A.

15  Subsection 546(2)

After “must not”, insert “(subject to subsection (2A))”.

16  After subsection 546(2)

Insert:

          (2A)  For a contravention of subsection 44(1), section 45, 50, 280, 293 or 305, or subsection 323(1) or 357(1), involving conduct intentionally engaged in by a body corporate that is not a small business employer, the pecuniary penalty must not be more than 3 times the maximum amount that would otherwise have applied under subsection (2) of this section.

Note:          This subsection might apply for an individual who is involved in a contravention by a body corporate (see section 550).

17  Subsection 546(5)

After “545”, insert “545A or 546A”.

18  After section 546

Insert:

546A   Orders disqualifying persons from managing corporations

             (1)  The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, make an order disqualifying a person from managing corporations (within the meaning of the Corporations Act 2001 ) for a period that the court considers appropriate if the court is satisfied that:

                     (a)  the person has contravened or was involved in a contravention of subsection 44(1), section 45, 50, 280, 293 or 305, or subsection 323(1) or 357(1); and

                     (b)  the contravention involved conduct intentionally engaged in by a body corporate that is not a small business employer; and

                     (c)  the disqualification is justified.

Note 1:       Section 206EC of the Corporations Act 2001 provides that a person is disqualified from managing corporations if a court order is in force under this section. That Act contains various consequences for persons so disqualified.

Note 2:       Disqualification orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).

Determining whether disqualification order is justified

             (2)  In determining whether the disqualification is justified, the court may have regard to:

                     (a)  the person’s conduct in relation to the management, business or property of any corporation (within the meaning of the Corporations Act 2001 ); and

                     (b)  any other matters that the court considers appropriate.

Applicant to notify ASIC

             (3)  The applicant must notify the Australian Securities and Investments Commission ( ASIC ) if the court makes a disqualification order. The applicant must give ASIC a copy of the order.

Note:          ASIC must keep a register of persons who have been disqualified from managing corporations—see section 1274AA of the Corporations Act 2001 .

No limitation on orders

             (4)  To avoid doubt, a court may make a disqualification order in addition to one or more orders under section 545, 545A or 546.

19  Paragraph 548(1)(a)

After “pecuniary penalty order”, insert “or a disqualification order”.

20  At the end of section 549

Add:

Note:          In some circumstances, contravening a civil remedy provision may be an element of an offence (see Part 4-1A).

21  Subsection 558(2)

After “546”, insert “(disregarding subsection 546(2A))”.

22  After Part 4-1

Insert:

Part 4-1A Offences for serious contraventions of this Act

Division 1 Introduction

559A   Guide to this Part

This Part contains offences for serious contraventions of this Act that involve the use of coercion or threats.

559B   Meanings of employee and employer

                   In this Part, employee and employer have their ordinary meanings.

Note:          See also Division 2 of Part 6-4A (TCF contract outworkers taken to be employees in certain circumstances).

Division 2 Offences for serious contraventions of this Act

559C   Offences for serious contraventions of this Act

             (1)  A person commits an offence if:

                     (a)  the person engag es in conduct; and

                     (b)  the conduct contravenes subsection 44(1), section 45, 50, 280, 293 or 305, or subsection 323(1) or 357(1); and

                     (d)  the contravention involves the use of coercion or a threat (both within the meaning of Division 270 (slavery and slavery-like conditions) of the Criminal Code ).

Penalty:   Imprisonment for 2 years or 240 penalty unit s, or both.

             (2)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the conduct contravenes a civil remedy provision; and

                     (c)  the contravention involves the use of coercion or a threat (both within the meaning of Division 270 (slavery and slavery-like conditions) of the Criminal Code ) in relation to a temporary overseas worker.

Penalty:  Imprisonment for 2 years or 240 penalty units, or both.

559D   Exception—retrospective determination varying modern award or national minimum wage order

                   Section 559C does not apply in relation to conduct if:

                     (a)  either:

                              (i)  a determination varying a modern award has a retrospective effect because it comes into operation under subsection 165(2) or 166(3) on a day before the day on which the determination is made; or

                             (ii)  a determination varying a national minimum wage order has a retrospective effect because it comes into operation under subsection 297(2) on a day before the day on which the determination is made; and

                     (b)  the conduct was engaged in before the determination was made; and

                     (c)  but for the retrospective effect of the determination, the conduct would not have contravened a civil remedy provision.

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

559E   No defence of victim consent or acquiescence

                   To avoid doubt, it is not a defence in a proceeding for an offence against section 559C that a person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence.

559F   Other laws not excluded

             (1)  This Part is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

             (2)  Without limiting subsection (1), this Part is not intended to exclude or limit the concurrent operation of any other law of the Commonwealth, or a law of a State or Territory, that makes:

                     (a)  an act or omission that is an offence against this Part; or

                     (b)  a similar act or omission;

an offence against the law of the Commonwealth, State or Territory.

             (3)  Subsection (2) applies even if the other law of the Commonwealth, or the law of the State or Territory, does any one or more of the following:

                     (a)  provides for a penalty for the offence that differs from the penalty provided for in this Part;

                     (b)  provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Part;

                     (c)  provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Part.

             (4)  This section applies subject to Part 1-3 of this Act.