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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Corporate
Responsibility and Employment Security Bill
2003
No. ,
2003
(Mr Crean)
A Bill
for an Act to amend the Corporations Act 2001 and the Workplace
Relations Act 1996, and for related purposes
Contents
A Bill for an Act to amend the Corporations Act 2001
and the Workplace Relations Act 1996, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Corporate Responsibility and Employment
Security Act 2003.
(1) Subject to subsection (2), this Act is taken to have commenced on 12
September 2001 at 9.00 am by legal time in the Australian Capital Territory and
applies in respect to companies that are in the course of being wound up or are
wound up in the period between the commencement of this Act and the time when
this Act received Royal Assent and to the period subsequent to Royal
Assent.
(2) The amendments made by item 3 of Schedule 2 come into effect on a day
to be fixed by proclamation.
3 Schedule
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 After Division 6 of Part
5.7B
Insert:
588YA Liability of a related body corporate for the debts or liabilities
of a company
(1) When a company is being wound up in insolvency, the liquidator, a
creditor of the company, a nominee of a creditor of the company or the ASIC may
apply to the Court for an order that a company that is or has been a related
body corporate pay to the liquidator the whole or part of the amount of a debt
of the insolvent company. The Court may make such an order if it is satisfied
that it is just to do so.
(2) In deciding whether it is just to make an order under subsection (1),
the matters to which the Court shall have regard include:
(a) (a) whether the company provided services for or on behalf of the
related body corporate; and
(b) whether the company occupied premises which are owned by the related
body corporate; and
(c) the extent to which the related body corporate took part in the
management of the company; and
(d) the conduct of the related body corporate towards the creditors of the
company generally and to the creditor to which the debt or liability relates;
and
(e) the extent to which the circumstances that gave rise to the winding up
of the company are attributable to the actions of the related body corporate or
an officer or officers of the related body corporate; and
(f) any other relevant matters as the Court considers just and
appropriate.
(3) Where the Court is satisfied that the matters set out in 2(a) to (f)
exist or that the circumstances that gave rise to the winding up of the company
are substantially attributable to the actions of the related body corporate or
an officer or officers of the related body corporate, the related body corporate
shall bear the onus of establishing why an order under this section should not
be made.
(4) An order under this section may be subject to conditions.
(5) An order shall not be made under this section if the only ground for
making the order is that creditors of the company have relied on the fact that
another company is or has been a related body corporate of the
company.
2 Section 1317J
Insert after subsection 1317J(2):
(2A) A creditor of the corporation, or a nominee of a creditor of the
corporation, may apply for a compensation order.
2 After section 170JH
Insert:
(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 Act
2001.
2 After section 178
Insert:
(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
(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.