Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015-2016
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Fair Work Amendment (Protecting
Australian Workers) Bill 2016
No. , 2016
(Senator Cameron)
A Bill for an Act to amend the Fair Work Act 2009,
and for related purposes
No. , 2016
Fair Work Amendment (Protecting Australian Workers) Bill 2016
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Main amendments
3
Fair Work Act 2009
3
Schedule 2--Consequential amendments
14
Corporations Act 2001
14
No. , 2016
Fair Work Amendment (Protecting Australian Workers) Bill 2016
1
A Bill for an Act to amend the Fair Work Act 2009,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Fair Work Amendment (Protecting
5
Australian Workers) Act 2016.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Fair Work Amendment (Protecting Australian Workers) Bill 2016
No. , 2016
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Main amendments Schedule 1
No. , 2016
Fair Work Amendment (Protecting Australian Workers) Bill 2016
3
Schedule 1--Main amendments
1
2
Fair Work Act 2009
3
1 After subsection 7(2)
4
Insert:
5
(2A) Part 4-1A contains offences for serious contraventions of this Act
6
that involve the use of coercion or threats.
7
2 Section 12
8
Insert:
9
disqualification order means an order under subsection 546A(1).
10
executive officer of a company: see subsection 545A(2).
11
phoenixing compensation order means an order under
12
subsection 545A(1).
13
pre-liquidation name: see subsection 545A(7).
14
temporary overseas worker means an individual who:
15
(a) is the holder of a temporary visa (within the meaning of the
16
Migration Act 1958); and
17
(b) may perform work in Australia in accordance with the visa:
18
(i) without restriction; or
19
(ii) subject to one or more conditions.
20
3 At the end of Division 3 of Part 1-2
21
Add:
22
15A Effect of migration laws
23
None of the following affect whether a person employs, or usually
24
employs, an individual for the purposes of this Act:
25
(a) the fact that the individual is an unlawful non-citizen for the
26
purposes of the Migration Act 1958;
27
Schedule 1 Main amendments
4
Fair Work Amendment (Protecting Australian Workers) Bill 2016
No. , 2016
(b) the fact that the individual, or a person other than the
1
individual, has contravened that Act or breached a condition
2
of a visa granted under that Act;
3
(c) the fact that the individual is no longer entitled to remain in
4
in Australia in accordance with a visa granted under that Act.
5
4 After subsection 124(2)
6
Insert:
7
(2A) The Statement must contain the prescribed information about:
8
(a) the relationship between workplace laws and the Migration
9
Act 1958; and
10
(b) opportunities for redress for temporary overseas workers
11
affected by contraventions of workplace laws.
12
(2B) The Fair Work Ombudsman must cause the Statement to be
13
translated into the languages prescribed by the regulations for the
14
purposes of this subsection.
15
(2C) The Fair Work Ombudsman must publish the translations of the
16
Statement in the Gazette.
17
5 Subsection 124(3)
18
Omit "is not a legislative instrument", substitute ", and the translations
19
required by subsection (2B), are not legislative instruments".
20
6 After subsection 125(1)
21
Insert:
22
(1A) If an employer reasonably believes that an employee is not
23
proficient in written English, and the Statement has been translated
24
in accordance with subsection 124(2B) into a language in which
25
the employee is more proficient, the employer must for the
26
purposes of subsection (1) give the employee the translation of the
27
Statement in that language.
28
7 Subsection 167(3)
29
Omit "order the person to pay a pecuniary penalty under Division 2 of
30
Part 4-1", substitute "make a pecuniary penalty order, a disqualification
31
order or a phoenixing compensation order".
32
Main amendments Schedule 1
No. , 2016
Fair Work Amendment (Protecting Australian Workers) Bill 2016
5
8 Subsection 298(2)
1
Omit "order the person to pay a pecuniary penalty under Division 2 of
2
Part 4-1", substitute "make a pecuniary penalty order, a disqualification
3
order or a phoenixing compensation order".
4
9 At the end of section 340
5
Add:
6
(3) A person must not take adverse action against another person (the
7
second person) because the second person raises, has raised, or
8
proposes to raise an issue or concern about whether the second
9
person or a third person has a workplace right.
10
Note:
This subsection is a civil remedy provision (see Part 4-1).
11
10 Subsection 357(2)
12
Repeal the subsection, substitute:
13
(2) Subsection (1) does not apply if the employer proves that, when the
14
representation was made, the employer:
15
(a) believed that the contract was a contract for services rather
16
than a contract of employment; and
17
(b) could not reasonably have been expected to know that the
18
contract was a contract of employment rather than a contract
19
for services.
20
11 Subsection 539(2)
21
After "including", insert "(subject to subsections 546(2) and (2A))".
22
12 Subsection 539(2) (table item 11, column 1)
23
After "340(2)", insert "340(3)".
24
13 Subsections 545(1), (3) and (3A) (note 1)
25
Repeal the note, substitute:
26
Note 1:
For the court's power to make phoenixing compensation orders, see
27
section 545A.
28
Note 1A: For the court's power to make pecuniary penalty orders, see
29
section 546.
30
Note 1B: For the court's power to make disqualification orders, see
31
section 546A.
32
Schedule 1 Main amendments
6
Fair Work Amendment (Protecting Australian Workers) Bill 2016
No. , 2016
14 After section 545
1
Insert:
2
545A Orders requiring executive officers of phoenix companies to
3
pay amounts owed by failed companies
4
(1) The Federal Court, the Federal Circuit Court or an eligible State or
5
Territory court must order that a person (the liable person) pay an
6
amount to, or on behalf of, another person (the affected person) if
7
the court is satisfied that:
8
(a) a company registered under the Corporations Act 2001 (the
9
failed company) contravened subsection 44(1), section 45,
10
50, 280, 293 or 305 or subsection 323(1) or 357(1); and
11
(b) the contravention involved a failure by the failed company to
12
pay an amount (the underpayment) that it was required to
13
pay to, or on behalf of, the affected person under this Act or a
14
fair work instrument; and
15
(c) the liable person was an executive officer of the failed
16
company at the time of the contravention; and
17
(d) after the contravention, the failed company was wound up;
18
and
19
(e) an unsecured debt or claim was proved in the winding up;
20
and
21
(f) the relevant date (within the meaning of the Corporations Act
22
2001) in relation to the winding up is on or after the
23
commencement of this subsection; and
24
(g) the liable person becomes an executive officer of a company
25
(the phoenix company) that is registered under the
26
Corporations Act 2001 within 12 months after the failed
27
company was wound up; and
28
(h) the phoenix company uses any of the assets that were used by
29
the failed company before it was wound up; and
30
(i) some or all of the underpayment remains unpaid (whether by
31
the failed company, the phoenix company or any other
32
person) to the person or persons to whom it should have been
33
paid; and
34
(j) the liable person should not be exempt from this section in
35
relation to the contravention.
36
Main amendments Schedule 1
No. , 2016
Fair Work Amendment (Protecting Australian Workers) Bill 2016
7
Note:
Phoenixing compensation orders cannot be made in relation to
1
conduct that contravenes a term of a modern award, a national
2
minimum wage order or an enterprise agreement only because of the
3
retrospective effect of a determination (see subsections 167(3) and
4
298(2)).
5
Meaning of executive officer
6
(2) An executive officer of a company registered under the
7
Corporations Act 2001 is a person, by whatever name called and
8
whether or not a director of the company, who is concerned in, or
9
takes part in, the management of the company.
10
Amount payable under order
11
(3) In determining the amount payable under the order, the court must
12
ensure that the combined effect of all orders made under this
13
section in relation to the contravention is that the whole of the
14
underpayment is paid to the person or persons to whom it should
15
have been paid.
16
When orders may be made
17
(4) The court may make the order:
18
(a) on its own initiative, during proceedings before the court; or
19
(b) on application.
20
Exemptions
21
(5) The court may exempt the liable person in relation to the
22
contravention only if:
23
(a) the court is satisfied that the liable person has acted honestly;
24
and
25
(b) having regard to all the circumstances of the case, the liable
26
person ought fairly to be exempt from this section in relation
27
to the contravention.
28
(6) In exercising its powers under subsection (5), the court must have
29
regard to the following matters:
30
(a) whether:
31
(i) at a time when the liable person was an executive
32
officer of the failed company, the failed company
33
incurred a debt; and
34
Schedule 1 Main amendments
8
Fair Work Amendment (Protecting Australian Workers) Bill 2016
No. , 2016
(ii) immediately before the time when the debt was
1
incurred, there were no reasonable grounds to expect
2
that the failed company would be able to pay the debt;
3
(b) the extent to which, and the circumstances in which, any
4
assets of the failed company have become assets of the
5
phoenix company;
6
(c) the extent to which, and the circumstances in which, any
7
individuals who were employed by the failed company have
8
become employees of the phoenix company;
9
(d) the extent to which, and the circumstances in which, any
10
premises that were used by the failed company have become
11
premises used by the phoenix company;
12
(e) the extent to which, and the circumstances in which, the
13
phoenix company uses:
14
(i) a pre-liquidation name of the failed company; or
15
(ii) a name that is so similar to a pre-liquidation name of the
16
failed company as to suggest an association with the
17
failed company;
18
(f) the extent to which, and the circumstances in which, any of
19
the following contact details that were used by the failed
20
company have become contact details used by the phoenix
21
company:
22
(i) a telephone number;
23
(ii) a fax number;
24
(iii) an email address;
25
(iv) an internet domain name;
26
(v) an internet URL;
27
(g) whether anything done, or omitted to be done, by the liable
28
person or the phoenix company is likely to create the
29
misleading impression that the failed company and the
30
phoenix company are the same entity;
31
(h) whether an order under this section has previously been made
32
for the liable person;
33
(i) any other relevant matters.
34
Meaning of pre-liquidation name
35
(7) A pre-liquidation name of a company that has been wound up is a
36
name by which the company was known at any time during the
37
Main amendments Schedule 1
No. , 2016
Fair Work Amendment (Protecting Australian Workers) Bill 2016
9
12-month period ending at the start of the relevant date (within the
1
meaning of the Corporations Act 2001) in relation to the winding
2
up of the company.
3
(8) For the purposes of subsection (7), a company is known by each of
4
the following names:
5
(a) the name of the company;
6
(b) if the company carries on its business, or a part of its
7
business, under a particular name--that name.
8
Time limit for orders in relation to underpayments
9
(9) The court must not make an order under this section if the
10
underpayment relates to a period that is more than 6 years before
11
the proceedings concerned commenced.
12
No limitation on orders
13
(10) This section does not limit the orders that may be made under
14
section 545, 546 or 546A.
15
15 Subsection 546(2)
16
After "must not", insert "(subject to subsection (2A))".
17
16 After subsection 546(2)
18
Insert:
19
(2A) For a contravention of subsection 44(1), section 45, 50, 280, 293 or
20
305, or subsection 323(1) or 357(1), involving conduct
21
intentionally engaged in by a body corporate that is not a small
22
business employer, the pecuniary penalty must not be more than 3
23
times the maximum amount that would otherwise have applied
24
under subsection (2) of this section.
25
Note:
This subsection might apply for an individual who is involved in a
26
contravention by a body corporate (see section 550).
27
17 Subsection 546(5)
28
After "545", insert "545A or 546A".
29
18 After section 546
30
Insert:
31
Schedule 1 Main amendments
10
Fair Work Amendment (Protecting Australian Workers) Bill 2016
No. , 2016
546A Orders disqualifying persons from managing corporations
1
(1) The Federal Court, the Federal Circuit Court or an eligible State or
2
Territory court may, on application, make an order disqualifying a
3
person from managing corporations (within the meaning of the
4
Corporations Act 2001) for a period that the court considers
5
appropriate if the court is satisfied that:
6
(a) the person has contravened or was involved in a
7
contravention of subsection 44(1), section 45, 50, 280, 293 or
8
305, or subsection 323(1) or 357(1); and
9
(b) the contravention involved conduct intentionally engaged in
10
by a body corporate that is not a small business employer;
11
and
12
(c) the disqualification is justified.
13
Note 1:
Section 206EC of the Corporations Act 2001 provides that a person is
14
disqualified from managing corporations if a court order is in force
15
under this section. That Act contains various consequences for persons
16
so disqualified.
17
Note 2:
Disqualification orders cannot be made in relation to conduct that
18
contravenes a term of a modern award, a national minimum wage
19
order or an enterprise agreement only because of the retrospective
20
effect of a determination (see subsections 167(3) and 298(2)).
21
Determining whether disqualification order is justified
22
(2) In determining whether the disqualification is justified, the court
23
may have regard to:
24
(a) the person's conduct in relation to the management, business
25
or property of any corporation (within the meaning of the
26
Corporations Act 2001); and
27
(b) any other matters that the court considers appropriate.
28
Applicant to notify ASIC
29
(3) The applicant must notify the Australian Securities and
30
Investments Commission (ASIC) if the court makes a
31
disqualification order. The applicant must give ASIC a copy of the
32
order.
33
Note:
ASIC must keep a register of persons who have been disqualified from
34
managing corporations--see section 1274AA of the Corporations Act
35
2001.
36
Main amendments Schedule 1
No. , 2016
Fair Work Amendment (Protecting Australian Workers) Bill 2016
11
No limitation on orders
1
(4) To avoid doubt, a court may make a disqualification order in
2
addition to one or more orders under section 545, 545A or 546.
3
19 Paragraph 548(1)(a)
4
After "pecuniary penalty order", insert "or a disqualification order".
5
20 At the end of section 549
6
Add:
7
Note:
In some circumstances, contravening a civil remedy provision may be
8
an element of an offence (see Part 4-1A).
9
21 Subsection 558(2)
10
After "546", insert "(disregarding subsection 546(2A))".
11
22 After Part 4-1
12
Insert:
13
Part 4-1A--Offences for serious contraventions of
14
this Act
15
Division 1--Introduction
16
559A Guide to this Part
17
This Part contains offences for serious contraventions of this Act
18
that involve the use of coercion or threats.
19
559B Meanings of employee and employer
20
In this Part, employee and employer have their ordinary meanings.
21
Note:
See also Division 2 of Part 6-4A (TCF contract outworkers taken to be
22
employees in certain circumstances).
23
Schedule 1 Main amendments
12
Fair Work Amendment (Protecting Australian Workers) Bill 2016
No. , 2016
Division 2--Offences for serious contraventions of this Act
1
559C Offences for serious contraventions of this Act
2
(1) A person commits an offence if:
3
(a) the person engages in conduct; and
4
(b) the conduct contravenes subsection 44(1), section 45, 50,
5
280, 293 or 305, or subsection 323(1) or 357(1); and
6
(d) the contravention involves the use of coercion or a threat
7
(both within the meaning of Division 270 (slavery and
8
slavery-like conditions) of the Criminal Code).
9
Penalty: Imprisonment for 2 years or 240 penalty units, or both.
10
(2) A person commits an offence if:
11
(a) the person engages in conduct; and
12
(b) the conduct contravenes a civil remedy provision; and
13
(c) the contravention involves the use of coercion or a threat
14
(both within the meaning of Division 270 (slavery and
15
slavery-like conditions) of the Criminal Code) in relation to a
16
temporary overseas worker.
17
Penalty: Imprisonment for 2 years or 240 penalty units, or both.
18
559D Exception--retrospective determination varying modern
19
award or national minimum wage order
20
Section 559C does not apply in relation to conduct if:
21
(a) either:
22
(i) a determination varying a modern award has a
23
retrospective effect because it comes into operation
24
under subsection 165(2) or 166(3) on a day before the
25
day on which the determination is made; or
26
(ii) a determination varying a national minimum wage order
27
has a retrospective effect because it comes into
28
operation under subsection 297(2) on a day before the
29
day on which the determination is made; and
30
(b) the conduct was engaged in before the determination was
31
made; and
32
Main amendments Schedule 1
No. , 2016
Fair Work Amendment (Protecting Australian Workers) Bill 2016
13
(c) but for the retrospective effect of the determination, the
1
conduct would not have contravened a civil remedy
2
provision.
3
Note:
A defendant bears an evidential burden in relation to the matter in this
4
section (see subsection 13.3(3) of the Criminal Code).
5
559E No defence of victim consent or acquiescence
6
To avoid doubt, it is not a defence in a proceeding for an offence
7
against section 559C that a person against whom the offence is
8
alleged to have been committed consented to, or acquiesced in,
9
conduct constituting any element of the offence.
10
559F Other laws not excluded
11
(1) This Part is not intended to exclude or limit the operation of any
12
other law of the Commonwealth or any law of a State or Territory.
13
(2) Without limiting subsection (1), this Part is not intended to exclude
14
or limit the concurrent operation of any other law of the
15
Commonwealth, or a law of a State or Territory, that makes:
16
(a) an act or omission that is an offence against this Part; or
17
(b) a similar act or omission;
18
an offence against the law of the Commonwealth, State or
19
Territory.
20
(3) Subsection (2) applies even if the other law of the Commonwealth,
21
or the law of the State or Territory, does any one or more of the
22
following:
23
(a) provides for a penalty for the offence that differs from the
24
penalty provided for in this Part;
25
(b) provides for a fault element in relation to the offence that
26
differs from the fault elements applicable to the offence
27
under this Part;
28
(c) provides for a defence in relation to the offence that differs
29
from the defences applicable to the offence under this Part.
30
(4) This section applies subject to Part 1-3 of this Act.
31
Schedule 2 Consequential amendments
14
Fair Work Amendment (Protecting Australian Workers) Bill 2016
No. , 2016
Schedule 2--Consequential amendments
1
2
Corporations Act 2001
3
1 After section 206EB
4
Insert:
5
206EC Disqualification under the Fair Work Act 2009
6
A person is disqualified from managing corporations if a court
7
order disqualifying the person from managing corporations is in
8
force under section 546A of the Fair Work Act 2009.
9
2 After section 206GA
10
Insert:
11
206GB Involvement of applicants for disqualification orders under
12
the Fair Work Act 2009--leave orders under section 206G
13
Scope of section
14
(1) This section applies in relation to a person who is disqualified from
15
managing corporations under section 206EC.
16
Notice lodged with ASIC before leave application
17
(2) If the person lodges a notice with ASIC under subsection 206G(2),
18
ASIC must give the applicant for the order mentioned in
19
section 206EC a copy of the notice.
20
Leave orders
21
(3) If the person lodges a copy of an order with ASIC under
22
subsection 206G(4), ASIC must give the applicant for the order
23
mentioned in section 206EC a copy of the order.
24
Revoking leave
25
(4) If ASIC decides to apply for an order under subsection 206G(5) in
26
relation to the person, it must consult the applicant for the order
27
Consequential amendments Schedule 2
No. , 2016
Fair Work Amendment (Protecting Australian Workers) Bill 2016
15
mentioned in section 206EC before making the application under
1
that subsection.
2
3 Paragraph 1274AA(1)(a)
3
After "206EB", insert ", 206EC,".
4
4 After paragraph 1274AA(2)(ac)
5
Insert:
6
(ad) every court order referred to in section 206EC; and
7