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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Recovery of
Unpaid Amounts for Franchisee
Employees) Bill 2015
No. , 2015
(Mr Bandt)
A Bill for an Act to amend the Fair Work Act 2009,
and for related purposes
No. , 2015
Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015
i
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedules ............................................................................................ 2
Schedule 1--Amendme nts
3
Fair Work Act 2009
3
No. , 2015
Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015
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 (Recovery of
5
Unpaid Amounts for Franchisee Employees) Act 2015.
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 (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015
No. , 2015
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repealed as set out in the applicable items in the Schedule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
Amendments Schedule 1
No. , 2015
Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015
3
Schedule 1--Amendments
1
2
Fair Work Act 2009
3
1 Section 12
4
Insert:
5
apparent franchisor entity: see subsection 789GE(2).
6
franchisee employee: see subsection 789GC(1).
7
franchisee employer: see subsection 789GC(1).
8
franchise-related work: see subsection 789GC(1).
9
franchisor entity: see subsection 789GC(3).
10
2 Section 12 (definition of unpaid amount)
11
Repeal the definition, substitute:
12
unpaid amount:
13
(a) in relation to TCF work performed by a TCF outworker: see
14
subsections 789CA(1) and (4); and
15
(b) in relation to franchise-related work performed by a
16
franchisee employee: see subsection 789GC(1).
17
3 After subsection 9(5A)
18
Insert:
19
(5AA) Part 6-4AA provides for the recovery of unpaid amounts for
20
franchisee employees.
21
4 After paragraph 789BA(1)(f)
22
Insert:
23
(fa) Part 6-4AA (recovery of unpaid amounts for franchisee
24
employees);
25
5 After Part 6-4A
26
Insert:
27
Schedule 1 Amendments
4
Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015
No. , 2015
Part 6-4AA--Recovery of unpaid amounts for
1
franchisee employees
2
Division 1--Introduction
3
789GA Guide to this Part
4
This Part provides for employees employed by a franchisee (or by
5
a related body corporate of a franchisee) to recover unpaid
6
remuneration from the franchisor (or from a related body corporate
7
of the franchisor).
8
789GB Meanings of employee and employer
9
In this Part, employee means a national system employee, and
10
employer means a national system employer.
11
Division 2--Recovery of unpaid amounts for franchisee
12
employees
13
789GC When this Division applies
14
Franchisee employees not paid for work in certain circumstances
15
(1) This Division applies if:
16
(a) an employee (the franchisee employee) is employed by an
17
employer (the franchisee employer) who is:
18
(i) a franchisee under a franchise; or
19
(ii) a related body corporate of a franchisee under a
20
franchise; and
21
(b) the franchisee employee performs work (franchise-related
22
work) for the franchisee employer for the purposes of
23
business activities carried on by the franchisee under the
24
franchise; and
25
(c) the franchisee employer does not pay an amount (the unpaid
26
amount) that is payable, in relation to the franchise-related
27
work, by the employer:
28
Amendments Schedule 1
No. , 2015
Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015
5
(i) to the franchisee employee; or
1
(ii) to another person, for the benefit of the franchisee
2
employee;
3
on or before the day when the amount is due for payment;
4
and
5
(d) the unpaid amount is payable under:
6
(i) a contract; or
7
(ii) this Act, or an instrument made under or in accordance
8
with this Act; or
9
(iii) another law of the Commonwealth; or
10
(iv) a transitional instrument as continued in existence by
11
Schedule 3 to the Transitional Act; or
12
(v) a State or Territory industrial law, or a State industrial
13
instrument.
14
(2) Without limiting paragraph (1)(c), the unpaid amount may (subject
15
to paragraph (1)(d)) be an amount of any of the following kinds
16
that relates to (or is attributable to) the franchise-related work:
17
(a) an amount payable by way of remuneration or commission;
18
(b) an amount payable in respect of leave;
19
(c) an amount payable by way of contributions to a
20
superannuation fund;
21
(d) an amount payable by way of reimbursement for expenses
22
incurred.
23
Meaning of franchisor entity
24
(3) A person is a franchisor entity in relation to the franchise-related
25
work if:
26
(a) the person is:
27
(i) the franchisor under the franchise; or
28
(ii) a related body corporate of the franchisor; and
29
(b) the person is:
30
(i) a constitutional corporation; or
31
(ii) the Commonwealth; or
32
(iii) a Commonwealth authority; or
33
(iv) a body corporate incorporated in a Territory.
34
Schedule 1 Amendments
6
Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015
No. , 2015
789GD Liability of franchisor entity for unpaid amount
1
(1) Each franchisor entity (or the franchisor entity, if there is only one)
2
is liable to pay the unpaid amount.
3
(2) If there are 2 or more franchisor entities, those entities are jointly
4
and severally liable for the payment of the unpaid amount.
5
(3) Subject to subsection 789GG(2), this section does not affect the
6
liability of the franchisee employer to pay the unpaid amount.
7
789GE Demand for payment from an apparent franchisor entity
8
(1) The franchisee employee, or a person acting on behalf of the
9
franchisee employee, may give an apparent franchisor entity a
10
written demand for payment of the amount that the franchisee
11
employee reasonably believes the entity is liable for under
12
section 789GD in relation to the franchise-related work.
13
(2) An entity is an apparent franchisor entity in relation to the
14
franchise-related work if the franchisee employee reasonably
15
believes that the entity is a franchisor entity in relation to the
16
franchise-related work.
17
(3) The demand must:
18
(a) specify the amount, and identify the franchisee employer; and
19
(b) include particulars of the franchise-related work to which the
20
amount relates, and why the amount is payable by the entity
21
to which the demand is given; and
22
(c) state that if the specified amount is not paid by a specified
23
time, proceedings may be commenced against the entity
24
under section 789GF.
25
(4) The time specified for the purpose of paragraph (3)(c) must not be
26
less than 14 days after the demand is given to the entity.
27
789GF Court order for entity to pay amount demanded
28
(1) If:
29
(a) in accordance with section 789GE, an apparent franchisor
30
entity has been given a demand for payment of a specified
31
amount; and
32
Amendments Schedule 1
No. , 2015
Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015
7
(b) the amount has not been paid in full by the time specified in
1
the demand;
2
a person or organisation specified in subsection (2) (the applicant)
3
may commence proceedings for an order requiring the apparent
4
franchisor entity or the franchisor entity to pay the specified
5
amount.
6
(2) The proceedings may be commenced:
7
(a) by the franchisee employee; or
8
(b) on the franchisee employee's behalf, by:
9
(i) an organisation that is entitled to represent the industrial
10
interests of the franchisee employee; or
11
(ii) an inspector.
12
(3) The proceedings may be commenced in:
13
(a) the Federal Court; or
14
(b) the Federal Circuit Court; or
15
(c) an eligible State or Territory court.
16
(4) Subject only to subsections (5) and (6), the court may make an
17
order requiring a franchisor entity for the franchisee employee to
18
pay, to the employee or to another person on the employee's
19
behalf, the specified amount (or so much of that amount as the
20
applicant alleges is still owing).
21
(5) The court must not make an order under subsection (4) in relation
22
to a franchisor entity for the franchisee employee if the entity
23
satisfies the court that the entity is not liable under section 789GD
24
to pay any of the specified amount.
25
(6) If a franchisor entity for the franchisee employee satisfies the court
26
that the amount of the entity's liability under section 789GD is less
27
than the specified amount (or is less than so much of that amount
28
as the applicant alleges is still owing), the court must not make an
29
order under subsection (4) requiring the entity to pay more than
30
that lesser amount.
31
(7) In making the order, the court must, on application, include an
32
amount of interest in the sum ordered, unless good cause is shown
33
to the contrary.
34
Schedule 1 Amendments
8
Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015
No. , 2015
(8) Without limiting subsection (7), in determining the amount of
1
interest, the court must take into account the period between the
2
day when the unpaid amount was due for payment by the
3
franchisee employer and the day when the order is made.
4
(9) Proceedings cannot be commenced under this section more than 6
5
years after the time when the unpaid amount became due for
6
payment by the franchisee employer.
7
789GG Effect of payment by entity (including entity's right to
8
recover from franchisee employer)
9
(1) This section applies if an entity pays an amount in discharge of a
10
liability of the entity under section 789GD, or pursuant to an order
11
under section 789GF.
12
(2) The payment discharges the liability of the franchisee employer for
13
the unpaid amount, to the extent of the payment. This does not
14
affect any right that the entity has to recover an equivalent amount
15
from the franchisee employer (under this section or otherwise) or
16
from another person, or to be otherwise indemnified in relation to
17
the making of the payment.
18
(3) The entity may, in accordance with this section, recover from the
19
franchisee employer an amount (the recoverable amount) equal to
20
the sum of:
21
(a) the amount paid by the entity as mentioned in subsection (1);
22
and
23
(b) any interest paid by the entity in relation to that amount
24
pursuant to an order under section 789GF.
25
(4) The entity may recover the recoverable amount:
26
(a) by offsetting it against any amount that the entity owes to the
27
franchisee employer; or
28
(b) by action against the franchisee employer under
29
subsection (5).
30
(5) The entity may commence proceedings against the franchisee
31
employer for payment to the entity of the recoverable amount. The
32
proceedings may be commenced in:
33
(a) the Federal Court; or
34
Amendments Schedule 1
No. , 2015
Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015
9
(b) the Federal Circuit Court; or
1
(c) an eligible State or Territory court.
2
(6) The court may make an order requiring the franchisee employer to
3
pay the entity the recoverable amount (or so much of it as is still
4
owing) if the court is satisfied that:
5
(a) this section applies as mentioned in subsection (1); and
6
(b) the entity has not otherwise recovered the recoverable
7
amount in full from the franchisee employer.
8
(7) In making the order the court must, on application, include an
9
amount of interest in the sum ordered, unless good cause is shown
10
to the contrary.
11
(8) Without limiting subsection (7), in determining the amount of
12
interest, the court must take into account the period between the
13
day when the recoverable amount was paid by the entity and the
14
day when the order is made.
15
(9) Proceedings cannot be commenced under this section more than 6
16
years after the time when the entity paid the recoverable amount.
17
789GH Division does not limit other liabilities or rights
18
Nothing in this Division limits any other liability or right in respect
19
of the entitlement of the franchisee employee to the unpaid amount
20
(or to have the unpaid amount paid to another person for the
21
employee's benefit).
22
6 At the end of Schedule 1
23
Add:
24
Part 3--Amendments made by the Fair Work
25
Amendment (Recovery of Unpaid Amounts
26
for Franchisee Employees) Act 2015
27
28
13 Definitions
29
In this Part:
30
Schedule 1 Amendments
10
Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015
No. , 2015
amending Act means the Fair Work Amendment (Recovery of
1
Unpaid Amounts for Franchisee Employees) Act 2015.
2
14 Application of the amendments made by the amending Act
3
Part 6-4AA, as inserted by Schedule 1 to the amending Act, applies
4
in relation to an amount that is payable by a franchisee employer if
5
the franchise is entered into on or after the commencement of that
6
Schedule.
7