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Road Safety Remuneration Bill 2012

Part 5 Compliance

Division 1 Civil remedy provisions and orders

Subdivision A Applications for orders

46   Civil remedy provisions

             (1)  A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision .

             (2)  For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 47 and 48 and Subdivision B of this Division, apply to:

                     (a)  the Federal Court; or

                     (b)  the Federal Magistrates Court; or

                     (c)  an eligible State or Territory court;

for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 3 of the item.

Note:          See also subsection 47(4).

 

Civil remedy provisions

Item

Column 1

Civil remedy provision

Column 2

Persons

Column 3

Maximum penalty

1

Section 28

(a) a driver to whom the order applies;

(b) a person on whom the order imposes a requirement, if the person is affected by the contravention or will be affected by the proposed contravention;

(c) an organisation ;

(d) an industrial association;

(e) an inspector

60 penalty units

2

Subsection 36(1)

(a) a road transport driver who is providing applicable services to the participating hirer;

(b) the participating hirer;

(c) an organisation ;

(d) an industrial association;

(e) an inspector

60 penalty units

3

Subsection 44(4)

(a) a party to the dispute to which the arbitration order relates, if the person is affected by the contravention or will be affected by the proposed contravention;

(b) an organisation ;

(c) an industrial association;

(d) an inspector

60 penalty units

4

Subsection 76(6)

an inspector

30 penalty units

5

Subsection 115(3)

(a) the person to whom the costs are payable;

(b) an organisation ;

(c) an industrial association

60 penalty units

6

Subsection 119(1)

(a) a road transport driver;

(b) an inspector

30 penalty units

7

Subsection 119(2)

(a) a road transport driver;

(b) an inspector

30 penalty units

 

47   Limitations on who may apply for orders etc.

             (1)  The following persons may apply for an order under this Division, in relation to a contravention or a proposed contravention of a civil remedy provision, only if the person is affected by the contravention, or will be affected by the proposed contravention:

                     (a)  a road transport driver;

                     (b)  an employer of a road transport driver;

                     (c)  a hirer of a road transport driver;

                     (d)  a participant in the supply chain in relation to a road transport driver.

             (2)  An organisation may apply for an order under this Division, in relation to a contravention or a proposed contravention of a civil remedy provision, only if:

                     (a)  the contravention affects a person or the proposed contravention will affect a person; and

                     (b)  the organisation is entitled to represent the interests of the person.

             (3)  An industrial association (other than an organisation) may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:

                     (a)  the contravention affects a person or the proposed contravention will affect a person; and

                     (b)  the association is entitled to represent the interests of the person; and

                     (c)  the person has consented to the association making the application.

             (4)  The regulations may prescribe a person for the purposes of an item in column 2 of the table in subsection 46(2). The regulations may provide that the person is prescribed only in relation to circumstances specified in the regulations.

48   Time limit on applications

                   A person may apply for an order under this Division in relation to a contravention of a civil remedy provision only if the application is made within 6 years after the day on which the contravention occurred.

Note:          For time limits on orders relating to underpayments, see subsection 49(4).

Subdivision B Orders

49   Orders that can be made

Federal Court and Federal Magistrates Court

             (1)  The Federal Court or the Federal Magistrates Court may make any of the following orders if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision:

                     (a)  an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

                     (b)  an order awarding compensation for loss that a person has suffered because of the contravention;

                     (c)  any other order the court considers appropriate.

Note:          For the court’s power to make pecuniary penalty orders, see section 50.

Eligible State or Territory courts

             (2)  An eligible State or Territory court may order a person to pay an amount to or on behalf of another person if the court is satisfied that:

                     (a)  the person was required to pay the amount to or on behalf of the other person under this Act or an enforceable instrument; and

                     (b)  the person has contravened a civil remedy provision by failing to pay the amount.

Note:          For the court’s power to make pecuniary penalty orders, see section 50.

When orders may be made

             (3)  A court may make an order under this section:

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

                     (b)  on application.

Time limit for orders in relation to underpayments

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

50   Pecuniary penalty orders

             (1)  The Federal Court, the Federal Magistrates Court or an eligible State or Territory court may, on application, order a person to pay to the Commonwealth a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Note:          Column 3 of the table in subsection 46(2) sets out the maximum penalty that the court may order the person to pay.

Determining amount of pecuniary penalty

             (2)  The pecuniary penalty must not be more than:

                     (a)  if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 3 of the table in subsection 46(2); or

                     (b)  if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 3 of the table in subsection 46(2).

Recovery of penalty

             (3)  The pecuniary penalty is a civil debt payable to the Commonwealth.

             (4)  The Commonwealth may enforce a pecuniary penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt.

No limitation on orders

             (5)  To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 49.

51   Interest up to judgement

             (1)  This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to or on behalf of another person under this Act or an enforceable instrument.

             (2)  In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.

             (3)  Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made.

Subdivision C General provisions about civil remedies

52   Contravening a civil remedy provision is not an offence

                   A contravention of a civil remedy provision is not an offence.

53   Involvement in contravention treated in same way as actual contravention

             (1)  A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

             (2)  A person is involved in a contravention of a civil remedy provision if, and only if, the person:

                     (a)  has aided, abetted, counselled or procured the contravention; or

                     (b)  has induced the contravention, whether by threats or promises or otherwise; or

                     (c)  has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

                     (d)  has conspired with others to effect the contravention.

54   Proceedings may be heard together

                   A court may direct that 2 or more proceedings for civil remedy orders are to be heard together.

55   Civil evidence and procedure rules for proceedings relating to civil remedy provisions

                   A court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision.

56   Civil proceedings after criminal proceedings

                   None of the Federal Court, the Federal Magistrates Court or an eligible State or Territory court may make a pecuniary penalty order against a person for a contravention of a civil remedy provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

57   Criminal proceedings during civil proceedings

             (1)  Proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if:

                     (a)  criminal proceedings are commenced or have already been commenced against the person for an offence; and

                     (b)  the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.

             (2)  The proceedings for the order (the civil proceedings) may be resumed if the person is not convicted of the offence. Otherwise:

                     (a)  the civil proceedings are dismissed; and

                     (b)  costs must not be awarded in relation to the civil proceedings.

58   Criminal proceedings after civil proceedings

                   Criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a civil remedy provision regardless of whether a pecuniary penalty order has been made against the person.

59   Evidence given in proceedings for penalty not admissible in criminal proceedings

             (1)  Evidence of information given or evidence of production of documents by a natural person is not admissible in criminal proceedings against the person if:

                     (a)  the person previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the person for a contravention of a civil remedy provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.

             (2)  However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the person in the proceedings for the pecuniary penalty order.

60   Civil double jeopardy

                   If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.

Note:          A court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a pecuniary penalty order in relation to that conduct (see subsection 50(5)).

61   Course of conduct

             (1)  For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

                     (a)  the contraventions are committed by the same person; and

                     (b)  the contraventions arose out of a course of conduct by the person.

             (2)  The civil remedy provisions are the following:

                     (a)  section 28 (which deals with contraventions of road safety remuneration orders);

                     (b)  subsection 36(1) (which deals with contraventions of approved road transport collective agreements);

                     (c)  subsection 44(4) (which deals with contraventions of arbitration orders).

             (3)  Subsection (1) does not apply to a contravention of a civil remedy provision that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision.



 

Division 2 Jurisdiction and powers of courts

Subdivision A Jurisdiction and powers of the Federal Court

62   Conferring jurisdiction on the Federal Court

                   Jurisdiction is conferred on the Federal Court in relation to any civil matter arising under this Act.

63   Exercising jurisdiction in the Fair Work Division of the Federal Court

                   The jurisdiction conferred on the Federal Court under section 62 is to be exercised in the Fair Work Division of the Federal Court if:

                     (a)  an application is made to the Federal Court under this Act; or

                     (b)  a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or

                     (c)  a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

                     (d)  an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

                     (e)  an appeal is instituted in the Federal Court from a judgement of the Federal Magistrates Court or a court of a State or Territory in a matter arising under this Act; or

                      (f)  proceedings in relation to a matter arising under this Act are transferred to the Federal Court from the Federal Magistrates Court; or

                     (g)  the Federal Magistrates Court or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act; or

                     (h)  the President refers, under section 95 of this Act, a question of law to the Federal Court; or

                      (i)  the High Court remits a matter arising under this Act to the Federal Court.

64   No limitation on Federal Court’s powers

                   To avoid doubt, nothing in this Act limits the Federal Court’s powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976 .

65   Appeals from eligible State or Territory courts

Appeals from original decisions of eligible State or Territory courts

             (1)  An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act.

             (2)  No appeal lies from a decision of an eligible State or Territory court exercising jurisdiction under this Act, except:

                     (a)  if the court was exercising summary jurisdiction—an appeal, to that court or another eligible State or Territory court of the same State or Territory, as provided for by a law of that State or Territory; or

                     (b)  in any case—an appeal as provided for by subsection (1).

Appeals from appellate decisions of eligible State or Territory courts

             (3)  An appeal lies to the Federal Court from a decision of an eligible State or Territory court made on appeal from a decision that:

                     (a)  was a decision of that court or another eligible State or Territory court of the same State or Territory; and

                     (b)  was made in the exercise of jurisdiction under this Act.

             (4)  No appeal lies from a decision to which subsection (3) applies, except an appeal as provided for by that subsection.

Leave to appeal not required

             (5)  It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subsection (1) or (3).

Subdivision B Jurisdiction and powers of the Federal Magistrates Court

66   Conferring jurisdiction on the Federal Magistrates Court

                   Jurisdiction is conferred on the Federal Magistrates Court in relation to any civil matter arising under this Act.

67   Exercising jurisdiction in the Fair Work Division of the Federal Magistrates Court

                   Jurisdiction conferred on the Federal Magistrates Court under section 66 is to be exercised in the Fair Work Division of the Federal Magistrates Court if:

                     (a)  an application is made to the Federal Magistrates Court under this Act; or

                     (b)  an injunction is sought under section 15 of the Federal Magistrates Act 1999 in relation to a matter arising under this Act; or

                     (c)  a declaration is sought under section 16 of the Federal Magistrates Act 1999 in relation to a matter arising under this Act; or

                     (d)  proceedings in relation to a matter arising under this Act are transferred to the Federal Magistrates Court from the Federal Court; or

                     (e)  the High Court remits a matter arising under this Act to the Federal Magistrates Court.

68   No limitation on Federal Magistrates Court’s powers

                   To avoid doubt, nothing in this Act limits the Federal Magistrates Court’s powers under section 14, 15 or 16 of the Federal Magistrates Act 1999 .

Subdivision C Small claims procedure

69   Applicants may choose small claims procedure

             (1)  Proceedings are to be dealt with as small claims proceedings under this section if:

                     (a)  a person applies for an order (other than a pecuniary penalty order) under Division 1 from a magistrates court or the Federal Magistrates Court; and

                     (b)  the order relates to an amount that another person is required to pay under this Act or an enforceable instrument; and

                     (c)  the person indicates, in the manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.

Limits on award

             (2)  In small claims proceedings, the court may not award more than $20,000.

Procedure

             (3)  In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:

                     (a)  in an informal manner; and

                     (b)  without regard to legal forms and technicalities.

             (4)  At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.

Legal representation

             (5)  A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.

             (6)  If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.

             (7)  For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.

Representation by an industrial association

             (8)  The regulations may provide for a party to small claims proceedings to be represented in the proceedings, in specified circumstances, by an official of an industrial association.

             (9)  However, if small claims proceedings are heard in a court of a State, the regulations may so provide only if the law of the State allows a party to be represented in that court in those circumstances by officials of bodies representing interests related to the matters in dispute.

Subdivision D Miscellaneous

70   Costs only if proceedings instituted vexatiously etc.

             (1)  A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2).

             (2)  The party may be ordered to pay the costs only if:

                     (a)  the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

                     (b)  the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

                     (c)  the court is satisfied of both of the following:

                              (i)  the party unreasonably refused to participate in a matter before the Tribunal;

                             (ii)  the matter arose from the same facts as the proceedings.

71   No imprisonment for failure to pay pecuniary penalty

             (1)  A court (including a court of a State or Territory) may not order a person to serve a sentence of imprisonment if the person fails to pay a pecuniary penalty imposed under this Act.

             (2)  This section applies despite any other law of the Commonwealth, a State or a Territory.

72   Regulations dealing with matters relating to court proceedings

                   The regulations may provide for the fees to be charged in relation to proceedings in a court (including a court of a State or Territory) under this Act.



 

Division 3 Fair Work Ombudsman

Subdivision A Role of Fair Work Ombudsman

73   Functions of the Fair Work Ombudsman

                   The Fair Work Ombudsman has the following functions:

                     (a)  to monitor compliance with this Act and enforceable instruments, including by providing education, assistance and advice to road transport drivers, their employers or hirers and participants in the supply chain in relation to road transport drivers;

                     (b)  to inquire into, and investigate, any act or practice that may be contrary to this Act or an enforceable instrument;

                     (c)  to commence proceedings in a court to enforce this Act and any enforceable instrument;

                     (d)  to refer matters to relevant authorities;

                     (e)  to represent road transport drivers who are, or may become, a party to proceedings in a court under this Act, if the Fair Work Ombudsman considers that representing the drivers will promote compliance with this Act or an enforceable instrument.

74   Exercise of compliance powers

             (1)  An inspector may exercise compliance powers within the meaning of the Fair Work Act 2009 (other than a power under section 715 or 716 of that Act) for the purpose of determining whether this Act or an enforceable instrument is being or has been complied with.

             (2)  For the purposes of the Fair Work Act 2009 :

                     (a)  a purpose referred to in subsection (1) is taken to be a compliance purpose; and

                     (b)  a civil remedy provision under section 28 or subsection 36(1), 44(4), 76(6) or 119(1) or (2) is taken to be a civil remedy provision.

75   Referring matters to the Fair Work Ombudsman

             (1)  The General Manager may refer a matter to the Fair Work Ombudsman for investigation if:

                     (a)  the General Manager has reason to believe that a person has not complied with an enforceable instrument in relation to another person; and

                     (b)  the General Manager does not believe that the persons are able to resolve the matter themselves.

             (2)  The General Manager must inform the persons, in writing, if the General Manager refers the matter to the Fair Work Ombudsman.

             (3)  The General Manager must inform the Fair Work Ombudsman about any action taken or information obtained by the General Manager in relation to the matter.

Subdivision B Compliance notices

76   Compliance notices

Application of this section

             (1)  This section applies if an inspector reasonably believes that a person has contravened a term of an enforceable instrument.

Giving a compliance notice

             (2)  The inspector may give the person a notice (a compliance notice ) requiring the person to do 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);

                     (b)  produce reasonable evidence of the person’s compliance with the notice.

Content of compliance notice

             (3)  A compliance 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 Magistrates Court or an eligible State or Territory Court for 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 civil remedy provisions

             (4)  An inspector must not apply for an order under Division 1 of this Part in relation to a contravention of a civil remedy provision by a person if:

                     (a)  the inspector has given the person a compliance notice in relation to the contravention; and

                     (b)  either of the following subparagraphs apply:

                              (i)  the notice has not been withdrawn, and the person has complied with the notice;

                             (ii)  the person has made an application under section 77 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.

             (5)  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

             (6)  A person must not fail to comply with a compliance notice given under this section.

Note:          This subsection is a civil remedy provision (see Division 1 of this Part).

             (7)  Subsection (6) does not apply if the person has a reasonable excuse.

77   Review of compliance notices

             (1)  A person who has been given a compliance notice under section 76 may apply to the Federal Court, the Federal Magistrates Court or an eligible State or Territory court for review of the notice on either or both of the following grounds:

                     (a)  the person has not committed a contravention set out in the notice;

                     (b)  the notice does not comply with subsection 76(2) or (3).

             (2)  At any time after the application has been made, the court may stay the operation of the notice on the terms and conditions that the court considers appropriate.

             (3)  The court may make any order it considers appropriate in relation to the notice.



 

Division 4 Right of entry

78   Right of entry for suspected contravention of this Act or enforceable instrument

                   The reference in subsection 481(1) of the Fair Work Act 2009 to a suspected contravention of that Act or a term of a fair work instrument is taken to include a reference to a suspected contravention of this Act or an enforceable instrument.