Title Employment Security Bill 2001
Database Bills & Legislation
Long Title a Bill for an Act to amend the [itals]Workplace Relations Act 1996[eitals] and the Corporations Law, in order to assist workers to recover employee entitlements lost in cases of artificial corporate re-structuring
Date 26-02-2001
Source House of Reps
Parl No. 39
Bill Number 01007
Bill Type Private
Reps Bill Code O
Status Not Proceeding
System Id legislation/bills/r1236_act/0002


Employment Security Bill 2001
Schedule 1—Workplace Relations Act 1996

 

1  After section 170JH

Insert:

170JI   Extended operation of reinstatement order to related body corporate.

             (1)  Where:

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

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

                     (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 Law.

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: 10,000 penalty units.

             (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 Law.