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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Employment
Security Bill 1999
No. ,
1999
(Mr Bevis)
A Bill
for an Act to amend the Workplace Relations Act 1996 and the
Corporations Law, in order to help protect the entitlements of
employees
ISBN: 0642 392536
Contents
Division 6A - Liability of a company for the debts or liabilities of a
related company 0642392536.html
A Bill for an Act to amend the Workplace Relations Act
1996 and the Corporations Law, in order to help protect the
entitlements of employees
The Parliament of Australia enacts:
This Act may be cited as the Employment Security Act
1999.
This Act commences on the day on which it receives the Royal
Assent.
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repealed as set out in the applicable items in the Schedule concerned, and any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 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 Law.
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: 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.
1 After Division 6 of Part
5.7B
Insert:
Division
6A - Liability of a company for the debts or liabilities of a related
company
(1) When a company is being wound up in insolvency, the liquidator, a
creditor of the company or the ASC 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) the extent to which the related company took part in the management of
the company; and
(b) the conduct of the related company towards the creditors of the
company generally and to the creditor to which the debt or liability relates;
and
(c) 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;
and
(d) any other relevant matters.
(3) An order under this section may be subject to conditions.
(4) 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 1317HD
Repeal the section, substitute:
(1) Where a person contravenes a civil penalty provision in relation to a
corporation, the corporation, a creditor or the ASC may recover from the person,
as a debt due to the corporation:
(a) if that or another person has made a profit because of the act or
omission constituting the contravention - an amount equal to the amount of that
profit; and
(b) if the corporation has suffered loss or damage as a result of that act
or omission - an amount equal to the amount of that loss or damage;
whether or not:
(c) the first-mentioned person has been convicted of an offence in
relation to the contravention; or
(d) a civil penalty order has been made against the first-mentioned person
in relation to the contravention.
(2) Proceedings under this section may only be begun within 6 years after
the contravention.