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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Corrupting
Benefits) Bill 2017
No. , 2017
(Employment)
A Bill for an Act to amend the Fair Work Act 2009,
and for related purposes
No. , 2017
Fair Work Amendment (Corrupting Benefits) Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments relating to corrupting benefits
3
Fair Work Act 2009
3
Schedule 2--Amendments relating to disclosure by
organisations and employers
11
Fair Work Act 2009
11
No. , 2017
Fair Work Amendment (Corrupting Benefits) Bill 2017
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 is the Fair Work Amendment (Corrupting Benefits) Act
5
2017.
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 (Corrupting Benefits) Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1
and 2
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
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repealed as set out in the applicable items in the Schedule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
Amendments relating to corrupting benefits Schedule 1
No. , 2017
Fair Work Amendment (Corrupting Benefits) Bill 2017
3
Schedule 1--Amendments relating to
1
corrupting benefits
2
3
Fair Work Act 2009
4
1 At the end of section 6
5
Add:
6
(8) Part 3-7 deals with offences in relation to corrupting benefits.
7
2 Section 12
8
Insert:
9
cash or in kind payment: see subsection 536F(4).
10
prohibited beneficiary: see subsection 536F(5).
11
registered organisations officer or employee: see section 536E.
12
3 At the end of Chapter 3
13
Add:
14
Part 3-7--Corrupting benefits
15
Division 1--Introduction
16
536A Guide to this Part
17
This Part is about corrupting benefits provided to or in relation to
18
organisations.
19
Division 2 prohibits benefits intended to influence an officer or
20
employee of an organisation to act improperly.
21
Division 3 prohibits national system employers providing cash or
22
in kind payments to employee organisations and related persons,
23
other than certain legitimate benefits specified in the Division.
24
Schedule 1 Amendments relating to corrupting benefits
4
Fair Work Amendment (Corrupting Benefits) Bill 2017
No. , 2017
536B Meanings of employee and employer
1
In this Part, employee and employer have their ordinary meanings.
2
536C Concurrent operation of State and Territory laws
3
(1) This Part does not exclude or limit the operation of a law of a State
4
or Territory that is capable of operating concurrently with this Part.
5
(2) Without limiting subsection (1), this Part does not exclude or limit
6
the concurrent operation of a law of a State or Territory to the
7
extent that:
8
(a) the law makes an act or omission:
9
(i) an offence; or
10
(ii) subject to a civil penalty; and
11
(b) that (or any similar) act or omission is also an offence against
12
a provision of this Part.
13
(3) Subsection (2) applies even if the law of the State or Territory does
14
any one or more of the following, in relation to the offence or civil
15
penalty:
16
(a) provides for a penalty that differs from the penalty provided
17
for in this Part;
18
(b) provides for fault elements that differ from the fault elements
19
applicable to the offence created by this Part;
20
(c) provides for defences or exceptions that differ from the
21
defences or exceptions applicable to the offence created by
22
this Part.
23
Division 2--Giving, receiving or soliciting corrupting
24
benefits
25
536D Giving, receiving or soliciting a corrupting benefit
26
Giving a corrupting benefit
27
(1) A person (the defendant) commits an offence if:
28
(a) the defendant:
29
(i) provides a benefit to another person; or
30
(ii) causes a benefit to be provided to another person; or
31
Amendments relating to corrupting benefits Schedule 1
No. , 2017
Fair Work Amendment (Corrupting Benefits) Bill 2017
5
(iii) offers to provide, or promises to provide, a benefit to
1
another person; or
2
(iv) causes an offer of the provision of a benefit, or a
3
promise of the provision of a benefit, to be made to
4
another person; and
5
(b) the defendant does so with the intention of influencing a
6
registered organisations officer or employee (who may be the
7
other person):
8
(i) to perform his or her duties or functions as such an
9
officer or employee improperly; or
10
(ii) to exercise his or her powers or perform his or her
11
functions under this Act or the Registered Organisations
12
Act improperly; or
13
(iii) to give an advantage of any kind, which would not be
14
legitimately due, to the defendant, a spouse (within the
15
meaning of the Registered Organisations Act) or
16
associated entity of the defendant, or a person who has a
17
prescribed connection with the defendant.
18
Penalty:
19
(a) for an individual--imprisonment for 10 years or 5,000
20
penalty units, or both; or
21
(b) for a body corporate--25,000 penalty units.
22
Receiving or soliciting a corrupting benefit
23
(2) A person (the defendant) commits an offence if:
24
(a) the defendant:
25
(i) requests (whether or not expressly and whether or not
26
by threats); or
27
(ii) receives or obtains; or
28
(iii) agrees to receive or obtain;
29
a benefit from a person (the provider) for the defendant or
30
another person; and
31
(b) the defendant does so with the intention that, or the intention
32
that the provider believes that, the receipt, or expectation of
33
the receipt, of the benefit will tend to influence a registered
34
organisations officer or employee (who may be the
35
defendant):
36
Schedule 1 Amendments relating to corrupting benefits
6
Fair Work Amendment (Corrupting Benefits) Bill 2017
No. , 2017
(i) to perform his or her duties or functions as such an
1
officer or employee improperly; or
2
(ii) to exercise his or her powers or perform his or her
3
functions under this Act or the Registered Organisations
4
Act improperly; or
5
(iii) to give an advantage of any kind, which would not be
6
legitimately due, to the provider, a spouse (within the
7
meaning of the Registered Organisations Act) or
8
associated entity of the provider, or a person who has a
9
prescribed connection with the provider.
10
Penalty:
11
(a) for an individual--imprisonment for 10 years or 5,000
12
penalty units, or both; or
13
(b) for a body corporate--25,000 penalty units.
14
No need for actual influence etc.
15
(3) For the purposes of paragraphs (1)(b) and (2)(b):
16
(a) the defendant's intention does not need to be in relation to a
17
particular registered organisations officer or employee; and
18
(b) the defendant's intention does not need to be in relation to a
19
registered organisations officer or employee performing or
20
exercising duties, functions or powers in a particular way, or
21
giving a particular advantage to a particular person; and
22
(c) the provider mentioned in subsection (2) does not need to
23
actually believe anything; and
24
(d) it is not necessary that any person actually be influenced.
25
Impropriety a matter for trier of fact
26
(4) In a prosecution for an offence against subsection (1) or (2), the
27
determination of whether a performance or exercise of duties,
28
functions or powers would be improper, or whether an advantage
29
would not be legitimately due, is a matter for the trier of fact.
30
Giving an advantage which would not be legitimately due
31
(5) For the purposes of subparagraphs (1)(b)(iii) and (2)(b)(iii), an
32
advantage may be given in any way, including by doing or not
33
doing a thing, or causing or influencing another person to do or not
34
do a thing.
35
Amendments relating to corrupting benefits Schedule 1
No. , 2017
Fair Work Amendment (Corrupting Benefits) Bill 2017
7
(6) In working out whether an advantage would not be legitimately
1
due to a person, disregard:
2
(a) whether the advantage might be, or be perceived to be,
3
customary, necessary or required in the situation; and
4
(b) the value of the advantage; and
5
(c) any official tolerance of the advantage.
6
Meaning of benefit in this section
7
(7) In this section:
8
benefit includes any advantage and is not limited to property.
9
536E Meaning of registered organisations officer or employee
10
Each of the following is a registered organisations officer or
11
employee:
12
(a) an officer (within the meaning of the Registered
13
Organisations Act) of an organisation or branch of an
14
organisation;
15
(b) an employee of an organisation or branch of an organisation.
16
Division 3--Cash or in kind payments to employee
17
organisations etc.
18
536F Giving a cash or in kind payment
19
Giving a cash or in kind payment
20
(1) A person (the defendant) commits an offence if:
21
(a) the defendant is a national system employer other than an
22
employee organisation; and
23
(b) the defendant:
24
(i) provides a cash or in kind payment to another person; or
25
(ii) causes a cash or in kind payment to be provided to
26
another person; or
27
(iii) offers to provide, or promises to provide, a cash or in
28
kind payment to another person; or
29
Schedule 1 Amendments relating to corrupting benefits
8
Fair Work Amendment (Corrupting Benefits) Bill 2017
No. , 2017
(iv) causes an offer of the provision of a cash or in kind
1
payment, or a promise of the provision of a cash or in
2
kind payment, to be made to another person; and
3
(c) the other person is an employee organisation or a prohibited
4
beneficiary in relation to an employee organisation; and
5
(d) the defendant, a spouse (within the meaning of the Registered
6
Organisations Act) or associated entity of the defendant, or a
7
person who has a prescribed connection with the defendant,
8
employs a person who is, or is entitled to be, a member of the
9
organisation and whose industrial interests the organisation is
10
entitled to represent.
11
Penalty:
12
(a) for an individual--imprisonment for 2 years or 500 penalty
13
units, or both; or
14
(b) for a body corporate--2,500 penalty units.
15
(2) Strict liability applies to paragraphs (1)(a), (c) and (d).
16
(3) Subsection (1) does not apply to the following cash or in kind
17
payments:
18
(a) a payment to the organisation:
19
(i) made by deduction from the wages of an employee of
20
the defendant who has agreed in writing to become a
21
member of the organisation; and
22
(ii) made for a membership fee payable by the employee;
23
(b) a benefit provided and used for the sole or dominant purpose
24
of benefiting the defendant's employees;
25
(c) a gift or contribution deductible under section 30-15 of the
26
Income Tax Assessment Act 1997 and used in accordance
27
with the law;
28
(d) a payment made, at market value, for goods or services
29
supplied to the defendant in the ordinary course of the
30
organisation's business for purposes in relation to the
31
ordinary course of the defendant's business;
32
(e) a payment made under or in accordance with a law of the
33
Commonwealth, or a law of a State or Territory;
34
(f) a benefit provided in accordance with an order, judgment or
35
award of a court or tribunal;
36
Amendments relating to corrupting benefits Schedule 1
No. , 2017
Fair Work Amendment (Corrupting Benefits) Bill 2017
9
(g) a non-corrupting benefit prescribed by, or provided in
1
circumstances prescribed by, the regulations.
2
However, the regulations may prescribe a cash or in kind payment
3
that would otherwise be covered by any of paragraphs (a) to (f) as
4
a cash or in kind payment to which subsection (1) applies.
5
Note:
A defendant bears an evidential burden in relation to the matters in
6
this subsection (see subsection 13.3(3) of the Criminal Code).
7
Meaning of cash or in kind payment
8
(4) A cash or in kind payment is a benefit that is:
9
(a) in cash or any other money form; or
10
(b) goods or services; or
11
(c) prescribed by the regulations for the purposes of this
12
paragraph.
13
Meaning of prohibited beneficiary
14
(5) A person is a prohibited beneficiary in relation to an employee
15
organisation if the person is any of the following:
16
(a) an entity controlled by the organisation;
17
(b) a registered organisations officer or employee in relation to
18
the organisation;
19
(c) a spouse of, or entity controlled by, such an officer or
20
employee;
21
(d) a person or entity to whom the organisation or a prohibited
22
beneficiary of the organisation requests or directs the
23
defendant to provide a cash or in kind payment;
24
(e) a person who has a prescribed connection with the
25
organisation or a prohibited beneficiary of the organisation.
26
(6) In subsection (5), control, entity and spouse have the same
27
meanings as in the Registered Organisations Act.
28
Meaning of national system employer
29
(7) Sections 30D and 30N do not apply to extend the meaning of
30
national system employer in this section.
31
Schedule 1 Amendments relating to corrupting benefits
10
Fair Work Amendment (Corrupting Benefits) Bill 2017
No. , 2017
536G Receiving or soliciting a cash or in kind payment
1
(1) A person (the defendant) commits an offence if:
2
(a) the defendant:
3
(i) requests (whether or not expressly and whether or not
4
by threats); or
5
(ii) receives or obtains; or
6
(iii) agrees to receive or obtain;
7
a cash or in kind payment from a person (the provider) for
8
the defendant or another person; and
9
(b) the defendant is an employee organisation or an officer
10
(within the meaning of the Registered Organisations Act) or
11
employee of an employee organisation; and
12
(c) if the provider were to provide the benefit to the defendant or
13
other person, the provider or another person would commit
14
an offence against subsection 536F(1).
15
Penalty:
16
(a) for an individual--imprisonment for 2 years or 500 penalty
17
units, or both; or
18
(b) for a body corporate--2,500 penalty units.
19
(2) Strict liability applies to paragraph (1)(c).
20
536H Implied freedom of political communication
21
(1) This Division does not apply to the extent (if any) that it would
22
infringe any constitutional doctrine of implied freedom of political
23
communication.
24
(2) Subsection (1) does not limit the application of section 15A of the
25
Acts Interpretation Act 1901.
26
Amendments relating to disclosure by organisations and employers Schedule 2
No. , 2017
Fair Work Amendment (Corrupting Benefits) Bill 2017
11
Schedule 2--Amendments relating to
1
disclosure by organisations and
2
employers
3
4
Fair Work Act 2009
5
1 Section 12
6
Insert:
7
related party has the same meaning as in the Registered
8
Organisations Act.
9
section 179A disclosable benefit: see subsection 179A(4).
10
section 179 disclosable benefit: see subsection 179(6).
11
2 Before section 180
12
Insert:
13
179 Disclosure by organisations that are bargaining representatives
14
(1) If:
15
(a) an organisation is a bargaining representative for a proposed
16
enterprise agreement that is not a greenfields agreement; and
17
(b) the organisation is not an employer that will be covered by
18
the agreement; and
19
(c) as a direct or indirect consequence of the operation of one or
20
more terms of the agreement (the beneficial terms), the
21
organisation or a person mentioned in subsection (2) will, or
22
can reasonably be expected to, receive or obtain (directly or
23
indirectly) a section 179 disclosable benefit (each such
24
person is a beneficiary);
25
the organisation must take all reasonable steps to ensure that, in the
26
time required by subsection (3), each employer that will be covered
27
by the agreement is given a document in accordance with
28
subsection (4).
29
Note:
This subsection is a civil remedy provision (see Part 4-1).
30
Schedule 2 Amendments relating to disclosure by organisations and employers
12
Fair Work Amendment (Corrupting Benefits) Bill 2017
No. , 2017
(2) For the purposes of paragraph (1)(c), the persons are any of the
1
following:
2
(a) a related party of the organisation (other than a related party
3
prescribed by the regulations);
4
(b) a person or body prescribed by the regulations for the
5
purposes of this paragraph.
6
(3) The document must be given to the employers no later than the end
7
of the fourth day of the access period referred to in
8
subsection 180(4) for the agreement.
9
(4) The document must:
10
(a) itemise the beneficial terms; and
11
(b) describe the nature and (as far as reasonably practicable)
12
amount of each section 179 disclosable benefit in relation to
13
each beneficiary; and
14
(c) name each beneficiary; and
15
(d) be in accordance with any other requirements prescribed by
16
the regulations for the purposes of this paragraph; and
17
(e) be given in a manner (if any) prescribed by the regulations.
18
(5) An organisation that gives a document under subsection (1) must
19
not knowingly or recklessly make a false or misleading
20
representation in the document.
21
Note:
This subsection is a civil remedy provision (see Part 4-1).
22
(6) A section 179 disclosable benefit is any financial benefit, other
23
than a financial benefit that is:
24
(a) payable to an individual as an employee covered by the
25
agreement; or
26
(b) payment of a membership fee for membership of an
27
organisation; or
28
(c) prescribed by the regulations for the purposes of this
29
paragraph.
30
179A Disclosure by employers
31
(1) If:
32
(a) an employer will be covered by a proposed enterprise
33
agreement that is not a greenfields agreement; and
34
Amendments relating to disclosure by organisations and employers Schedule 2
No. , 2017
Fair Work Amendment (Corrupting Benefits) Bill 2017
13
(b) as a direct or indirect consequence of the operation of one or
1
more terms of the agreement (the beneficial terms), the
2
employer or a person mentioned in subsection (2) will, or can
3
reasonably be expected to, receive or obtain (directly or
4
indirectly) a section 179A disclosable benefit (each such
5
person is a beneficiary);
6
the employer must prepare a document in accordance with
7
subsection (3).
8
(2) For the purposes of paragraph (1)(b), the persons are any of the
9
following:
10
(a) an associated entity of the employer (other than an associated
11
entity prescribed by the regulations);
12
(b) a person or body prescribed by the regulations for the
13
purposes of this paragraph.
14
(3) The document must:
15
(a) itemise the beneficial terms; and
16
(b) describe the nature and (as far as reasonably practicable)
17
amount of each section 179A disclosable benefit in relation
18
to each beneficiary; and
19
(c) name each beneficiary; and
20
(d) be in accordance with any other requirements prescribed by
21
the regulations for the purposes of this paragraph.
22
(4) A section 179A disclosable benefit is any financial benefit, other
23
than a financial benefit that is:
24
(a) received or obtained in the ordinary course of the employer's
25
business; or
26
(b) prescribed by the regulations for the purposes of this
27
paragraph.
28
3 After subsection 180(4)
29
Insert:
30
Employees must be given copy of disclosure documents etc.
31
(4A) If an organisation gives the employer a document under
32
section 179 by the end of the fourth day of the access period for the
33
agreement, the employer must take all reasonable steps to ensure
34
that the relevant employees:
35
Schedule 2 Amendments relating to disclosure by organisations and employers
14
Fair Work Amendment (Corrupting Benefits) Bill 2017
No. , 2017
(a) are given a copy of the document as soon as practicable after
1
it was given to the employer; or
2
(b) are given access to a copy of the document as soon as
3
practicable after it was given to the employer and have access
4
to that copy throughout the remainder of the access period for
5
the agreement.
6
Note:
This subsection is a civil remedy provision (see Part 4-1).
7
(4B) If the employer is required to prepare a document under
8
section 179A, the employer must take all reasonable steps to
9
ensure that the relevant employees:
10
(a) are given a copy of the document by the end of the fourth day
11
of the access period for the agreement; or
12
(b) are given access to a copy of the document by the end of that
13
fourth day and have access to that copy throughout the
14
remainder of the access period for the agreement.
15
Note:
This subsection is a civil remedy provision (see Part 4-1).
16
(4C) The employer must not knowingly or recklessly make a false or
17
misleading representation in the document that the relevant
18
employees are given a copy of or access to under subsection (4B).
19
Note:
This subsection is a civil remedy provision (see Part 4-1).
20
4 After section 188
21
Insert:
22
188A Disclosure documents
23
Failure by an organisation to comply with section 179 (disclosure
24
by organisations), or by an employer to comply with section 179A
25
or subsection 180(4A), (4B) or (4C) (disclosure by employers), in
26
relation to an agreement:
27
(a) does not amount to reasonable grounds for believing that the
28
agreement has not been genuinely agreed to by employees;
29
and
30
(b) is not otherwise relevant to approval by the FWC of the
31
agreement.
32
5 Subsection 539(2) (before table item 6)
33
Insert:
34
Amendments relating to disclosure by organisations and employers Schedule 2
No. , 2017
Fair Work Amendment (Corrupting Benefits) Bill 2017
15
5A
179(1)
179(5)
(a) an employee;
(b) a bargaining
representative for
the proposed
enterprise
agreement;
(c) an inspector
(a) the Federal Court;
(b) the Federal
Circuit Court;
(c) an eligible State
or Territory court
60 penalty
units
5B
180(4A)
180(4B)
180(4C)
(a) an employee;
(b) a bargaining
representative for
the proposed
enterprise
agreement;
(c) an inspector
(a) the Federal Court;
(b) the Federal
Circuit Court;
(c) an eligible State
or Territory court
60 penalty
units
1
6 In the appropriate position in Schedule 1
2
Insert:
3
Part 6--Amendments made by the Fair Work
4
Amendment (Corrupting Benefits) Act
5
2017
6
7
30 Disclosure by organisations and employers
8
The amendments of Subdivision A of Division 4 of Part 2-4 made
9
by Schedule 2 to the Fair Work Amendment (Corrupting Benefits)
10
Act 2017 apply in relation to a proposed enterprise agreement for
11
which the access period under subsection 180(4) begins on or after
12
the commencement of this Part.
13