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Business Services Wage Assessment Tool Payment Scheme Bill 2014

Part 3 How to obtain a payment under the BSWAT payment scheme

Division 1 Simplified outline of this Part

12   Simplified outline of this Part

A person who wants a payment under the BSWAT payment scheme must make an application before 1 December 2015. Applications can only be made on or after 1 May 2015 by persons already registered for the scheme.

If a person makes an application before 1 December 2015, the Secretary must determine the application by deciding whether the person is eligible for the scheme, and if so, what amount (if any) to offer the person.

The Secretary must notify the person of the Secretary’s determination, either by:

       (a)     offering to make a payment to the person; or

      (b)     refusing the person’s application if satisfied that the person is not eligible for the scheme or that the payment amount for the person is nil.

The offer or refusal must include certain information, including information about the person’s right to apply for a review of the determination if the person is not satisfied with it.

A person may apply to the Secretary for review, and if not satisfied with the outcome of that review, may apply for review by an external reviewer. An offer or refusal ceases to be current when a person applies for review, and a new offer or refusal will follow from the review.

If a person decides to accept an offer, the person must lodge an effective acceptance (an acceptance that complies with this Act). If an acceptance is effective, the Secretary will make the payment to a bank account nominated by the person.

The BSWAT payment scheme only operates until the end of 2016. Offers cannot be made on or after 1 September 2016, except as a consequence of a review of an earlier determination, and no offers at all can be made on or after 1 December 2016. A person who wants to accept an offer must do so on or before 31 December 2016.

Division 2 Registration and application

13   Registration

             (1)  The Secretary must establish a register for the purposes of this section.

             (2)  If a person contacts the Secretary before 1 May 2015 to register for the BSWAT payment scheme, the Secretary must include the person on the register by adding to it the following details:

                     (a)  the person’s name and contact details;

                     (b)  any other details the Secretary considers appropriate.

             (3)  The contact may be made by any of the following means:

                     (a)  telephone;

                     (b)  email or other electronic means;

                     (c)  any other means approved by the Secretary.

             (4)  A person who makes an application for the BSWAT payment scheme before 1 May 2015 is taken to be on the register.

14   When a person cannot be included on the register

             (1)  The Secretary cannot include on the register a person for whom there is an alternative amount.

             (2)  The Secretary cannot include on the register a person who first contacts the Secretary to register for the BSWAT payment scheme on or after 1 May 2015.

             (3)  This section has effect despite anything else in this Act.

15   Application

             (1)  A person may make an application for the BSWAT payment scheme during the period:

                     (a)  starting on 1 July 2014; and

                     (b)  ending on 30 November 2015.

             (2)  The application must be:

                     (a)  in an approved form; and

                     (b)  lodged in a manner prescribed by the rules; and

                     (c)  made before 1 December 2015.

             (3)  The application must be accompanied by the information and documents prescribed by the rules.

16   When a person cannot make an application

             (1)  A person cannot make an application if there is an alternative amount for the person.

             (2)  A person who is not on the register cannot make an application on or after 1 May 2015.

             (3)  An application cannot be made on or after 1 December 2015.

             (4)  This section has effect despite anything else in this Act.

Division 3 Determinations, offers and refusals

17   Determination of application

             (1)  The Secretary must determine an application in accordance with this section.

             (2)  The Secretary must:

                     (a)  if satisfied that an applicant is eligible for the BSWAT payment scheme—make a determination that the applicant is eligible for the scheme; and

                     (b)  if satisfied that an applicant is not eligible for the BSWAT payment scheme—make a determination that the applicant is not eligible for the scheme.

             (3)  If a determination is made that an applicant is eligible for the BSWAT payment scheme, the Secretary must make a determination of the payment amount for the person.

             (4)  Despite subsection (1), if the Secretary makes a request or requirement for further information or a document under section 68 or 69, a determination need not be made until the further information is given or the document produced.

18   Certain applications must not be determined

             (1)  The Secretary must not determine an application made by a person if:

                     (a)  the person has already lodged an effective acceptance; or

                     (b)  the person has made an application (the earlier application ) that has not been finally determined; or

                     (c)  there is an alternative amount for the person.

             (2)  The Secretary must not determine an application made on or after 1 December 2015.

             (3)  An earlier application made by a person has been finally determined if:

                     (a)  the person is taken to have declined an offer made in response to the application (see section 41); or

                     (b)  the person has been given a refusal and the period for applying for a review of a determination included in the refusal has ended without the person making such an application; or

                     (c)  the person has been given a refusal that includes a determination made by an external reviewer.

             (4)  This section has effect despite anything else in this Act.

19   Offer

             (1)  If a determination is made under subsection 17(3) of a payment amount for an applicant that is more than nil, or such a determination is affirmed under subsection 24(6) or 28(1), the Secretary must, by written notice to the applicant, make an offer to pay the payment amount to the applicant.

             (2)  The offer must do the following:

                     (a)  specify the date of the offer;

                     (b)  include the determination that the applicant is eligible for the BSWAT payment scheme and explain the reasons for the determination;

                     (c)  include the determination of the payment amount and explain the reasons for the determination;

                     (d)  if the determination of the payment amount has been affirmed under subsection 24(6) or 28(1)—include the affirmation and the reasons for the affirmation;

                     (e)  specify a period (the acceptance period ) of at least 14 days, starting on the date of the offer, within which the offer can be accepted;

                      (f)  explain how to accept the offer, should the applicant decide to do so (including the need to first obtain a legal advice certificate that complies with section 36 and a financial counselling certificate that complies with section 37);

                     (g)  inform the applicant that the applicant does not have to accept the offer and explain that by doing nothing, the offer is taken to be declined at the end of the acceptance period;

                     (h)  unless subsection (3) applies—inform the applicant that the applicant may, before the end of the acceptance period, request an extension of that period and explain how to make that request;

                      (i)  unless subsection (3) applies—inform the applicant that the applicant may, before the end of the acceptance period, apply for a review of the payment amount and explain how to make that application and, broadly, what the review would involve;

                      (j)  draw the applicant’s attention to sections 9 and 10.

             (3)  The offer must not inform the applicant as required by paragraphs (2)(h) and (i) if the offer includes a determination made by an external reviewer:

                     (a)  of a payment amount for the applicant that is more than nil; or

                     (b)  affirming a determination made by the Secretary of a payment amount.

             (4)  Subsection (2) does not limit the matters that may be dealt with by the offer.

20   Refusal

             (1)  If:

                     (a)  a determination is made under paragraph 17(2)(b) that an applicant is not eligible for the BSWAT payment scheme; or

                     (b)  a determination is made under subsection 17(3) that the payment amount for an applicant is nil; or

                     (c)  a determination referred to in paragraph (a) or (b) is affirmed under subsection 24(6) or 28(1);

the Secretary must, by written notice to the applicant, refuse the application.

             (2)  The refusal must do the following:

                     (a)  specify the date of the refusal;

                     (b)  include the determination under section 17 and explain the reasons for the determination;

                     (c)  if the determination under section 17 has been affirmed under subsection 24(6) or 28(1)—include the affirmation and the reasons for the affirmation;

                     (d)  unless subsection (3) applies—inform the applicant that the applicant may, within the 21 day period starting on the date of the refusal, apply for a review of the determination and explain how to make that application and, broadly, what the review would involve;

                     (e)  unless subsection (3) applies—inform the applicant that the applicant may request an extension of the 21 day period referred to in paragraph (d) and explain how to make that request.

             (3)  The refusal must not inform the applicant as required by paragraphs (2)(d) and (e) if the refusal includes a determination made by an external reviewer:

                     (a)  that the applicant is not eligible for the BSWAT payment scheme; or

                     (b)  affirming a determination made by the Secretary.

             (4)  Subsection (2) does not limit the matters that may be dealt with by the refusal.

21   Certain circumstances in which offers and refusals cannot be given

             (1)  The Secretary must not make an offer or give a refusal to a person whose application has been determined if there is an alternative amount for the person.

             (2)  The Secretary must not make an offer or give a refusal to a person on or after 1 September 2016, except as a consequence of a review of a determination made before that day.

             (3)  The Secretary must not make an offer or give a refusal to a person on or after 1 December 2016.

             (4)  Subsections (2) and (3) prevent the Secretary from making an offer or giving a refusal after a date specified in those subsections even if, on the specified date, the Secretary is waiting for further information to be provided in accordance with a request under section 68 or a requirement under section 69.

             (5)  This section has effect despite anything else in this Act.

22   Extensions

             (1)  The Secretary may, on request made in accordance with the rules (if any), extend, by no more than 28 days:

                     (a)  the acceptance period for an offer; or

                     (b)  the 21 day period referred to in subsection 24(3) or 26(3) for applying for a review in relation to a refusal.

If the Secretary does so, the period is the period as extended by the Secretary.

             (2)  A period extended under paragraph (1)(a) must end on or before 31 December 2016.

             (3)  A period extended under paragraph (1)(b) must end on or before 30 November 2016.

             (4)  A request to extend a period must be received before the end of the original period.

             (5)  The Secretary may only extend a period once.

Division 4 Internal review

23   Internal review at Secretary’s initiative

             (1)  The Secretary may, on his or her own initiative, review a determination made under section 17 if the Secretary is satisfied that there is enough reason to do so.

             (2)  The Secretary cannot review a determination:

                     (a)  after an application has been made for external review of the determination under Division 5; or

                     (b)  after a person has accepted the offer in which the determination was included; or

                     (c)  that is made or affirmed in an external review under Division 5.

             (3)  On review of a determination, the Secretary may:

                     (a)  affirm the determination; or

                     (b)  set aside the determination and substitute a new determination in accordance with Division 6.

24   Internal review on application

             (1)  A person may apply to the Secretary to review a determination made for the person under section 17, other than a determination that was made or affirmed under this Division or Division 5.

             (2)  If the determination was included in an offer, the application must be made:

                     (a)  before the end of the acceptance period; and

                     (b)  before the offer is accepted.

             (3)  If the determination was included in a refusal, the application must be made before the end of the 21 day period starting on the date of the refusal, or that period as extended under section 22.

             (4)  The application must be made by:

                     (a)  sending or delivering a written application to the Secretary in accordance with the rules (if any); or

                     (b)  making an oral application, in person or by telephone or other means, to the Secretary in accordance with the rules (if any).

             (5)  If a person makes an oral application in accordance with paragraph (4)(b), the person receiving the oral application must:

                     (a)  make a written record of the details of the application; and

                     (b)  note on the record the day the application is made.

             (6)  The Secretary must, as soon as reasonably practicable:

                     (a)  review the determination; and

                     (b)  either:

                              (i)  affirm the determination; or

                             (ii)  set aside the determination and substitute a new determination in accordance with Division 6.

25   Withdrawal of application for internal review

             (1)  A person who has applied for review of a determination under section 24 may withdraw the application at any time before a decision is made under subsection 24(6), by:

                     (a)  sending or delivering a written notice to the Secretary in accordance with the rules (if any); or

                     (b)  contacting the Secretary and withdrawing the application orally, whether in person, by telephone or by other means in accordance with the rules (if any).

             (2)  If an application is withdrawn in accordance with paragraph (1)(b), the person receiving the oral withdrawal must make a written record of the details of the withdrawal and note on the record the day the withdrawal is made.

             (3)  If an application is withdrawn, the application is taken never to have been made.

Division 5 External review

26   Application for external review

             (1)  A person may apply to the Secretary for external review of a determination made for the person under section 17 that is:

                     (a)  made on an internal review under subsection 23(3) (internal review at Secretary’s initiative); or

                     (b)  a determination made or affirmed on an internal review under subsection 24(6) (internal review on application).

             (2)  If the determination was included in an offer, the application must be made before:

                     (a)  the end of the acceptance period; and

                     (b)  the offer is accepted.

             (3)  If the determination was included in a refusal, the application must be made before the end of the 21 day period starting on the date of the refusal, or that period as extended under section 22.

             (4)  The application must be made by:

                     (a)  sending or delivering a written application to the Secretary in accordance with the rules (if any); or

                     (b)  making an oral application, in person or by telephone or other means, to the Secretary in accordance with the rules (if any).

             (5)  If a person makes an oral application in accordance with paragraph (4)(b), the person receiving the oral application must:

                     (a)  make a written record of the details of the application; and

                     (b)  note on the record the day the application is made.

27   Appointing external reviewer

             (1)  If the Secretary receives an application for external review of a determination, the Secretary must, by writing, appoint a person (the external reviewer ) to review the determination.

             (2)  A person may only be appointed under subsection (1) if:

                     (a)  the person has been (but is no longer) a Justice of the High Court or a judge of another federal court or of a court of a State or Territory; or

                     (b)  the person is a legal practitioner who has been enrolled for at least 10 years.

             (3)  If a person appointed under subsection (1) is unable to complete the review of the determination, the Secretary must appoint another person under that subsection to review the determination.

             (4)  A person appointed under subsection (1) is to be paid the remuneration and allowances determined in writing by the Secretary in accordance with the rules (if any).

28   External review

             (1)  The external reviewer must, as soon as reasonably practicable:

                     (a)  review the determination; and

                     (b)  either:

                              (i)  affirm the determination; or

                             (ii)  set aside the determination and substitute a new determination in accordance with Division 6.

             (2)  The external reviewer must, in conducting the review, comply with any requirements prescribed by the rules.

29   Material that may be considered by external reviewer

             (1)  In completing the review, the external review may only consider:

                     (a)  a statement or document given to the external reviewer under this section; and

                     (b)  information or a document given to the external reviewer following a request made under section 30.

Material given by Secretary at time of appointment

             (2)  The Secretary must, as soon as reasonably practicable after appointing the external reviewer, give the reviewer:

                     (a)  a written statement about the determination under review that:

                              (i)  sets out the findings of fact made for the purposes of the determination; and

                             (ii)  refers to the evidence on which those findings were based; and

                            (iii)  gives the reasons for the determination; and

                     (b)  the original or a copy of every document or part of a document that:

                              (i)  is in the possession, or under the control, of the Secretary; and

                             (ii)  relates to the applicant; and

                            (iii)  is relevant to the review of the determination.

Material given by applicant at time of application

             (3)  The applicant may, within 14 days after applying for the external review, give the Secretary:

                     (a)  a written statement supporting the application; and

                     (b)  any other document that the applicant considers relevant to the review.

             (4)  The Secretary must give the external reviewer a copy of the material referred to in subsection (3) as soon as practicable after it is given to the Secretary.

Additional material given by Secretary

             (5)  If:

                     (a)  after the material mentioned in subsection (2) or (3) is given to the external reviewer, but before the completion of the review, a document comes into the possession or under the control of the Secretary; and

                     (b)  the Secretary considers that the document or a part of the document is relevant to the review; and

                     (c)  a copy of the document or the part of the document has not been given to the external reviewer in accordance with subsection (2) or (4);

the Secretary must, as soon as practicable, give a copy of the document or the part of the document to the external reviewer.

             (6)  As soon as practicable after a statement or document is given to the external reviewer as mentioned in subsection (2) or (5), the Secretary must give the applicant for the external review a copy of the statement or document (unless the statement or document was given to the Secretary by the applicant).

30   External reviewer may request Secretary to seek further information

             (1)  The external reviewer may request the Secretary to exercise the Secretary’s powers under section 68 or 69 if the external reviewer is satisfied that a person has information, or has custody or control of a document, that is relevant to the review of the determination.

             (2)  The Secretary must, as soon as practicable, either:

                     (a)  comply with the request, if the Secretary is satisfied that it is appropriate to do so, and give the information or document to the external reviewer; or

                     (b)  refuse the request and inform the external reviewer accordingly.

31   Withdrawal of application for external review

             (1)  A person who has applied for review of a determination under section 26 may withdraw the application at any time before a decision is made under subsection 28(1), by:

                     (a)  sending or delivering a written notice to the Secretary in accordance with the rules (if any); or

                     (b)  contacting the Secretary and withdrawing the application orally, whether in person, by telephone or by other means in accordance with the rules (if any).

             (2)  If an application is withdrawn in accordance with paragraph (1)(b), the person receiving the oral withdrawal must make a written record of the details of the withdrawal and note on the record the day the withdrawal is made.

             (3)  If an application is withdrawn, the application is taken never to have been made.

32   Notice of decision on external review

                   The external reviewer must give the Secretary:

                     (a)  a copy of the external reviewer’s decision on the review; and

                     (b)  reasons for the decision.

Division 6 Determinations made on a review

33   Substituting determinations on a review

             (1)  This section applies in relation to:

                     (a)  an internal review conducted by the Secretary (the reviewer ) under Division 4; or

                     (b)  an external review conducted by a person (the reviewer ) appointed under Division 5.

Review of determination involving payment amount

             (2)  If, on review of a determination of a payment amount under subsection 17(3), the reviewer is satisfied that the applicant is not eligible for the BSWAT payment scheme, the reviewer must:

                     (a)  set aside the determinations made under paragraph 17(2)(a) and subsection 17(3) for the applicant; and

                     (b)  substitute a new determination under paragraph 17(2)(b) that the applicant is not eligible for the BSWAT payment scheme.

Note:          The Secretary will then be required to refuse the application for a payment under the BSWAT scheme (see section 20).

             (3)  Subsection (2) does not apply if a determination has been made under paragraph 17(2)(a) for the applicant in an external review under Division 5.

             (4)  To avoid doubt, the reviewer may, on review of a determination of a payment amount, determine a lower payment amount for the applicant.

Review of determination that applicant ineligible

             (5)  If, on review of a determination made under paragraph 17(2)(b), the reviewer is satisfied that the applicant is eligible for the BSWAT payment scheme, the reviewer must set aside that determination and make a determination under paragraph 17(2)(a) for the applicant.

Note:          The Secretary will then be required to determine a payment amount for the person under subsection 17(3).

34   Effect of review on previous offer or refusal

             (1)  If a person applies for internal review under Division 4 or external review under Division 5 of a determination made under section 17, any offer under section 19 or refusal under section 20 made as a result of the determination ceases to be current.

Note:          An offer that is not current cannot be accepted (see section 38).

             (2)  If the Secretary substitutes a new determination in an internal review under section 23 (internal review at Secretary’s initiative), any offer under section 19 or refusal under section 20 made as a result of the determination under review ceases to be current.

Note:          An offer that is not current cannot be accepted (see section 38).

             (3)  If a person withdraws an application for review in accordance with section 25 or 31:

                     (a)  any offer or refusal that ceased to be current under subsection (1) or (2) becomes current again from the time of the withdrawal; and

                     (b)  for an offer—at the time of the withdrawal, the number of days remaining in the acceptance period is taken to be the number of days that remained immediately before the application was made.

Division 7 Accepting an offer

35   Accepting an offer

             (1)  A person who wants to accept an offer must do so in accordance with this section.

             (2)  The acceptance must be:

                     (a)  in an approved form; and

                     (b)  lodged in a manner prescribed by the rules; and

                     (c)  lodged before the end of the acceptance period for the offer.

             (3)  The acceptance must be accompanied by:

                     (a)  a legal advice certificate that complies with section 36; and

                     (b)  a financial counselling certificate that complies with section 37; and

                     (c)  an acknowledgement that the person understands the effect of accepting the offer; and

                     (d)  any other information or documents prescribed by the rules.

Note:          A nominee may do acts, including sign acknowledgements, on the person’s behalf: see section 45.

36   Legal advice certificate

                   A certificate complies with this section if the certificate:

                     (a)  is in an approved form; and

                     (b)  certifies, as required by the form, one or more of the matters specified in the form; and

                     (c)  is signed by a legal practitioner.

37   Financial counselling certificate

             (1)  A certificate complies with this section if the certificate:

                     (a)  is in the approved form; and

                     (b)  certifies, as required by the form, one or more of the matters specified in the form; and

                     (c)  is signed by a financial counsellor or by the person’s nominee, as applicable in relation to the matters certified.

             (2)  In this Act:

financial counsellor means a person who is a fully accredited member of a State or Territory association of financial counsellors prescribed by the rules.

38   Effective acceptance

                   An acceptance has effect, and is an effective acceptance , only if:

                     (a)  the person accepts the offer in accordance with section 35; and

                     (b)  the acceptance is lodged before 1 January 2017; and

                     (c)  at the time the acceptance is lodged:

                              (i)  if the offer had ceased to be current as mentioned in subsection 34(1) or (2)—the offer has become current again as mentioned in subsection 34(3); and

                             (ii)  there is no alternative amount for the person; and

                            (iii)  the person is not the representative party in a relevant representative proceeding.

Note:          If the representative party in a relevant representative proceeding first withdraws as the representative party, with the leave of the Court, that person could then accept an offer.

39   Notice to Federal Court

             (1)  The Secretary must notify the Federal Court if a person lodges an effective acceptance.

             (2)  The notice must:

                     (a)  be in writing; and

                     (b)  be accompanied by copies of:

                              (i)  the acceptance; and

                             (ii)  the legal advice certificate that complies with section 36 and the financial counselling certificate that complies with section 37.

             (3)  Subsection (1) does not apply if all relevant representative proceedings referred to in section 9 have been determined, settled or discontinued.

40   Payment of amount

             (1)  If a person lodges an effective acceptance, the Secretary must pay the payment amount offered to the person on the date that is determined by the Secretary to be the earliest date on which it is reasonably practicable for the payment to be made to the person.

             (2)  The amount is to be paid to the credit of a bank account nominated and maintained by the person. (The account may be maintained by the person alone or jointly in common with another person.)

             (3)  The Secretary may direct that the whole or a part of the amount is to be paid to the person in a different way from that provided for by subsection (2). If the Secretary gives a direction, the amount is to be paid in accordance with the direction.

41   Declining an offer

                   If a person does not lodge an effective acceptance of an offer before the end of the acceptance period for the offer, the person is taken to have declined the offer.