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Corporate Responsibility and Employment Security Bill 2002
Schedule 2 —Amendments to the Workplace Relations Act 1996

2  After section 170JH

Insert:

170JI   Extended operation of reinstatement order to related body corporate

             (1)  Where:

                     (a) 

                            (a)   the Commission has determined that an employer that is a company should reinstate an employee pursuant to subsection 170CH(3); or

                     (b) 

                            (b)   the Court has determined that an employer that is a company should reinstate an employee pursuant to subsection 170CR(1) or section 298U;

                                      the Commission or the Court respectively may, if it is satisfied that it is just, order that a related body corporate shall be deemed to be the employer for the purpose of the reinstatement order.

(2)   (2)               In deciding whether it is just to make an order under subsection (1), the matters to which the Commission and the Court respectively shall have regard include:

                         

                     (a)  the extent to which reinstatement of the employee by the employer is impractical because the employer is in receivership or is in the course of being wound up; and

                 (b) (b)    the extent to which the related body corporate took part in the management of the employer; and

                           (c) (c)   the extent to which the circumstances that gave rise to the receivership or to the winding up of the employer are attributable to the actions of the related body corporate; and

                     (d)  any other relevant matters.

             (3)  The Commission and the Court have power to make such other orders as each respectively thinks fit regulating the contract of employment between the employee and the related body corporate, and otherwise dealing with accrued entitlements, continuity of employment and all other matters necessary to give practical effect to the reinstatement order.

             (4)  In this section related body corporate has the same meaning as that term has in section 9 of the Corporations Act 2001.

2  After section 178

Insert:

178A   Liability of related body corporate for legal entitlements payable to employees of employer

             (1)  This section applies where:

 

                            (a)                          a company (the related body corporate) has entered into a contract for the carrying out of work for or on its behalf by a related company (the employer), including a contract or arrangement to hire labour from the employer; and

                     (b)  the employer has contracted to undertake work for or on behalf of the related body corporate, including the provision of labour services to the related body corporate; and

                     (c)  employees of the employer are engaged in carrying out the work (the relevant employees); and

                     (d)  the work is carried out in connection with a business undertaking of the related body corporate; and

                     (e)  the relevant employees are, or at the time of the non payment were, subject to an award, an order of the Commission, a certified agreement or an Australian Workplace Agreement.

             (2)  The related body corporate is liable for the payment of any legal entitlements of the relevant employees that have not been paid for work done by the employees in connection with the contract unless the related body corporate has a written statement given by the employer under this section.

             (3)  The written statement for the purpose of this section is a statement by the employer that all legal entitlements payable to the relevant employees for work under the contract done during the period specified in the statement that have been paid.  The regulations may make provision for or with respect to the form of the written statement.

             (4)  The related body corporate and the employer must keep a copy of any written statement under this section for at least 6 years after it was given.

             (5)  The related body corporate may withhold any payment due to the employer under the contract until the employer gives a written statement under this section for any period up to the date of the statement.  Any penalty for late payment under the contract does not apply to any payment withheld under this subsection.

             (6)  The written statement is not effective to relieve the related body corporate of liability under this section if a reasonable person in the position of the related body corporate would, when given the statement, have reason to believe it was false.

             (7)  An employer who gives the related body corporate a written statement knowing it to be false is guilty of an offence.

Maximum penalty: $1000.

             (8)  The provisions of this Act relating to the recovery of amounts payable under relevant legislation, an award, an order of the Commission, a certified agreement or an Australian Workplace Agreement apply to the recovery of legal entitlements payable by a related body corporate under this section.

             (9)  To avoid doubt, this section extends to a contract if the employer is in receivership or in the course of being wound up unless payments made under the contract are made to the receiver or liquidator specifically in respect to the legal entitlements of the employees.

           (10)  In this section:

legal entitlements means remuneration and all other amounts payable to relevant employees under relevant legislation, an award, an order of the Commission, a certified agreement or an Australian Workplace Agreement in connection with work done by the employees, and includes but is not limited to accrued leave entitlements, sick leave, superannuation, redundancy and severance pay entitlements.

related body corporate has the same meaning as that term has in section 9 of the Corporations Act 2001.

3.  After section 179D

179E  Recovery of wages by independent contractor etc from principal contractor

             (1)  This section applies where:

                     (a)  a person ( the independent contractor) has entered into a contract for the performance of work in connection with a constitutional corporation ( the principal contractor ) and ;

                     (b)  the independent contractor and/or employees of the independent contractor ( the relevant employees) are engaged or have been engaged in carrying out the work; and

                     (c)  amounts are payable to the independent contractor and/or employees of the independent contractor as payment for that work ( the relevant amounts).

             (2)  The principal contractor is liable for payment of relevant amounts to relevant employees where

                     (a)  the person or entity which was liable to pay the independent contractor is being wound up, is in receivership or is bankrupt, or

                     (b)  the independent contractor is being wound up, is in receivership or is bankrupt,

                   unless the independent contractor has, or the relevant employees have, provided the principal contractor with a written statement under this section.

             (3)  The written statement is a statement by the independent contractor or the relevant employees that all payments for work done under the contract have been made. The regulations may make provision for or with respect to the form of the written statement.

             (4)  If the principal contractor

                     (a)  pays the relevant amounts to discharge its liability under subsection (2), and

                     (b)  has previously paid money which represents the relevant amounts

                   the principal contractor may recover the relevant amounts, as an unsecured creditor, from the relevant person or entity being wound up, in receivership or bankrupt.

             (5)  If the principal contractor pays the relevant amounts to discharge its liability under subsection (2), the independent contractor and/or relevant employees may not seek payment of those amounts from another person.

             (6)  The principal contractor and the independent contractor must keep a copy of any written statement provided under subsection (2) for at least 6 years after it has been given.

             (7)  An independent contractor or a relevant employee who gives a principal contractor a written statement knowing it to be false is guilty of an offence.

                   Penalty: $1000.

             (8)  The provisions of this Act relating to the recovery of amounts payable under relevant legislation, an award, an order of the Commission, a certified agreement or an Australian Workplace Agreement apply to the recovery of legal entitlements payable by a principal contractor under this section.