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Back to Work Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
General
The object of this Bill is to establish a Back to Work Scheme for the purpose
of providing relief to employers in respect of the costs associated with hiring
certain unemployed or retrenched workers and to make consequential
amendments to the Taxation Administration Act 1997 and for other
purposes.
Clause Notes
Part 1--Preliminary
Part 1 of the Bill outlines the purposes of the Bill and contains the
commencement provisions and definitions.
Clause 1 outlines the purpose of the Bill.
Clause 2 provides that the Bill will come into operation on 1 July 2015.
It is proposed that, under the eligibility criteria for the Scheme,
eligible employers will be required to be able to demonstrate a
3 month employment period has been met for eligible employees.
Accordingly, the period for eligible employment will effectively
commence from 1 April 2015, with Scheme payments to be made
available from 1 July 2015.
Note that section 13 of the Interpretation of Legislation Act
1984 enables the eligibility criteria for the Scheme and any other
relevant Guidelines to be issued, and other relevant preparations
to be undertaken, prior to 1 July 2015 in readiness for the
commencement of the Scheme.
581001 1 BILL LA INTRODUCTION 22/12/2014
Clause 3 defines terms used in the Bill including--
Back to Work payment which is defined to mean a payment
under the Back to Work Scheme;
Back to Work record which is defined to mean a record required
to be kept by a claimant in accordance with section 20 or 21;
Back to Work Scheme which is defined to mean the scheme
established under section 4;
claim which is defined to mean a claim for a Back to Work
payment;
claimant which is defined to mean a person who makes or has
made a claim;
eligibility criteria which is defined to mean the criteria
determined under section 5;
eligible employee which is defined to mean an employee who is
determined, or is in a class determined, in accordance with the
eligibility criteria to be an eligible employee.
Part 2--Back to Work Scheme
Part 2 of the Bill covers the establishment of the Back to Work Scheme and
the eligibility criteria.
Clause 4 establishes the Back to Work Scheme for the purpose of
providing relief for employers in respect of the costs associated
with hiring certain unemployed or retrenched workers.
Clause 5 Subclause (1) provides that the Minister is to determine the
eligibility criteria for payments under the Back to Work Scheme.
Subclause (2) requires the Minister to cause notice of the
eligibility criteria to be published in the Government Gazette.
It is intended that the eligibility criteria will be determined and
gazetted prior to the Scheme coming into operation on 1 July
2015.
Subclause (3) provides that a notice under subclause (2) is not a
legislative instrument within the meaning of the Subordinate
Legislation Act 1994.
This ensures that the eligibility criteria and any subsequent
changes may be made under the Bill in a timely manner without
having to comply with the administrative requirements relating to
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the making of legislative instruments imposed by the
Subordinate Legislation Act 1994 (e.g. the obligation to prepare
a regulatory impact statement).
This approach recognises that, for the Back to Work Scheme to
be effective, it requires both the administrative powers in order to
obtain information and process Back to Work claims, as well as
providing maximum flexibility to tailor the eligibility criteria to
ensure the Scheme works effectively and efficiently for all
involved (e.g. the inclusion of additional eligible employees,
adjusting timeframes and payment amounts). The equivalent
scheme in Tasmania takes the same approach.
Subclause (4) provides that the eligibility criteria may include a
cap on the amount of any Back to Work payment and a cap on
the number of payments that may be made in any specified
period.
Part 3--Claiming Back to Work payments
Part 3 of the Bill covers how a claim should be made and what is required of
the Commissioner of State Revenue ("Commissioner") in making a decision
on that claim. This Part also covers payment of the claim, power for the
Commissioner to correct decisions and the objection and review provisions.
Division 1--Making a claim
Clause 6 Subclause (1) provides that if a person believes they are eligible
for a Back to Work payment, they may make a claim to the
Commissioner in respect of an eligible employee.
Subclause (2) provides that a claim must be in a form approved
by the Commissioner and must contain the information required
by the Commissioner in relation to the claimant's eligibility for
the payment. A claim must be made within the time provided for
in the eligibility criteria and must comply with any other
requirements of the eligibility criteria.
Division 2--Decision on claims
Clause 7 Subclause (1) requires the Commissioner to decide whether a
claimant meets the eligibility criteria for a Back to Work
payment. Where the Commissioner is satisfied that a claimant is
eligible, the Commissioner must determine the amount of the
payment.
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Subclause (2) provides that the amount of the payment is to be
determined in accordance with the eligibility criteria.
Subclause (3) authorises the Commissioner to make a payment if
satisfied that a claimant meets the eligibility criteria for a Back to
Work payment.
Clause 8 Subclause (1) provides that a Back to Work payment can be
made by electronic funds transfer or any other way the
Commissioner thinks appropriate.
Subclause (2) provides that a Back to Work payment is to be paid
to the claimant or to some other person whom the claimant
nominates in writing.
Subclause (3) provides that a Back to Work payment may be
applied towards any liability of the claimant under a taxation law
or any other law under the general administration of the
Commissioner, if the claimant so requests.
Clause 9 Subclause (1) provides that, if the Commissioner decides a claim
and is later satisfied, independently of an objection, that the
decision was incorrect, the Commissioner may vary or reverse
the incorrect decision.
Subclause (2) provides that a decision cannot be varied or
reversed more than 5 years after it was made, unless all the facts
and circumstances affecting the claimant's eligibility for the Back
to Work payment were not fully and truly disclosed to the
Commissioner.
Clause 10 Subclause (1) provides that the Commissioner must give notice
of a decision on a claim.
Subclause (2) provides that if the decision is to refuse a claim, or
to vary or reverse a decision on a claim, the Commissioner must
state reasons for the decision in the notice.
Division 3--Objections and reviews
Clause 11 Subclause (1) provides that a claimant who is dissatisfied with a
decision on the claim (including a decision to reverse or vary an
earlier decision) or a decision to impose a penalty, may lodge a
written objection with the Commissioner.
Subclause (2) requires that the grounds for the objection must be
stated fully and in detail, and must be in writing.
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Subclause (3) places the burden of proof of the objector's case on
the objector.
Subclause (4) requires the objection to be lodged with the
Commissioner within 60 days after the date of the notice of
decision.
Subclause (5) allows an objection to be lodged outside the 60-day
period if the Commissioner is satisfied that the claimant has a
reasonable excuse for failing to lodge the objection within the
required time.
Subclause (6) provides that an objection is taken to be lodged
with the Commissioner when it is received by the Commissioner.
Clause 12 Subclause (1) provides that the Commissioner must consider an
objection and either allow the objection in whole or in part or
disallow the objection.
Subclause (2) provides that an objection that is subject to a right
of review may be determined at any time by the Commissioner
before those proceedings commence.
Subclauses (3) and (4) require notice in writing of the outcome of
the objection and the reasons for disallowing or allowing it in
part to be given.
Clause 13 provides that if an objector, or some other person, fails to provide
information requested that is relevant to the objection, the
determination of the objection may be suspended until the
information is provided. Written notice of the suspension must
be given.
Clause 14 Subclause (1) provides that an objector, in writing, may request
the Commissioner to refer the matter to VCAT if the objector is
dissatisfied with the Commissioner's decision on the objection or
if 90 days (excluding any period of suspension) have passed
since the objection was received and a determination has not
been made.
Subclause (2) provides that where the objector is dissatisfied with
the Commissioner's determination of the objection, the objector's
request for referral to VCAT must be made within 60 days after
the date of service on the objector of the notice of the
Commissioner's determination of the objection.
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Similarly, where a determination is not made by the
Commissioner within 90 days since the objection was received
by the Commissioner, the objector may, at any time after the
90-day period, request that the matter be referred.
Subclause (3) provides that subject to clause 15, the
Commissioner must refer the matter for review within 60 days
after the request.
Clause 15 Subclause (1) provides that the Commissioner may request
further and better particulars within 30 days after receiving a
request to refer a matter for review.
Subclause (2) provides that once full particulars are provided
within 30 days of the request, there is a further 30-day period
before the matter must be referred. The Commissioner must not
refer the matter if full particulars are not given.
Clause 16 provides that on a review, unless VCAT orders otherwise, the
objector's case is limited to the grounds of the objection and the
Commissioner's case is limited to the grounds on which the
objection was disallowed.
Clause 17 provides that the burden of proving the objector's case is on the
objector.
Clause 18 Subclause (1) provides for VCAT to review a matter referred to
it, and empowers it to confirm or vary the decision on the claim
for a Back to Work payment.
Subclause (2) requires VCAT to confirm the decision if the
objector does not appear, although, if good cause is shown within
6 weeks after the day on which the decision is confirmed, VCAT
may re-open and review the matter.
Clause 19 Subclause (1) requires the Commissioner to take any action
necessary to give effect to VCAT's decision within 60 days of
that decision becoming final.
Subclause (2) deems that the date the decision becomes final is
30 days after the day of the decision, if no appeal to a court is
made.
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Part 4--Back to Work records
Part 4 of the Bill contains general record keeping requirements for claimants
including keeping relevant records for a certain period of time, keeping them
in English (or easily convertible into English) and ensuring that records are
readily accessible. There are offences that attract penalties for a failure to
comply with these obligations and for knowingly including false or
misleading information in a record.
Clause 20 requires a claimant to keep all records that are necessary to
enable the claimant's eligibility for a Back to Work payment to
be properly assessed.
A maximum penalty of 10 penalty units for an individual and
50 penalty units for a body corporate is prescribed for a breach of
this provision.
Clause 21 requires a claimant, on written notice from the Commissioner, to
keep additional records as determined by the Commissioner.
A maximum penalty of 10 penalty units for an individual and
50 penalty units for a body corporate is prescribed for a breach of
this provision.
Clause 22 creates an offence for knowingly including information in a
Back to Work record (required to be kept under the Bill) that is
false or misleading in a material particular.
A maximum penalty of 10 penalty units for an individual and
50 penalty units for a body corporate is prescribed for a breach of
this provision.
Clause 23 provides that Back to Work records (required to be kept under the
Bill) are to be kept in such a manner that they can be readily
produced to the Commissioner.
A maximum penalty of 10 penalty units for an individual and
50 penalty units for a body corporate is prescribed for a breach of
this provision.
Clause 24 Subclause (1) provides that Back to Work records (required to be
kept under the Bill) must be kept in English, or easily convertible
into the English language.
A maximum penalty of 10 penalty units for an individual and
50 penalty units for a body corporate is prescribed for a breach of
this provision.
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Subclause (2) provides that the Commissioner may recover from
a claimant the costs reasonably incurred by the Commissioner in
converting or translating a Back to Work record into English in
the Magistrates' Court irrespective of the amount or in any other
court of competent jurisdiction.
Clause 25 Subclause (1) requires a claimant to retain Back to Work records
(required to be kept under the Bill) for 5 years from the date the
record was made.
A maximum penalty of 10 penalty units for an individual and
50 penalty units for a body corporate is prescribed for a breach of
this provision.
Subclause (2) provides that a claimant may, if the Commissioner
authorises them in writing, destroy a record before the end of the
5-year period.
Clause 26 creates an offence for wilfully damaging or destroying a Back to
Work record (that is required to be kept under the Bill).
A maximum penalty of 10 penalty units for an individual and
50 penalty units for a body corporate is prescribed for a breach of
this provision.
Part 5--Administration and enforcement
Part 5 of the Bill confers the Commissioner with general administration of
the Bill and the regulations. Additionally, this Part contains provisions
relating to investigations, including powers of entry and inspection and
search warrants. Penalties are set out in respect of failure to comply with
certain provisions. Further, this Part contains provisions relating to
repayments and the confidentiality provisions, which prohibit and permit
certain disclosures of information by authorised officers to particular
recipients.
Division 1--Administration
Clause 27 confers general administration of the Bill and the regulations on
the Commissioner.
Clause 28 provides that the Commissioner, and persons appointed as
authorised officers under the Taxation Administration Act
1997, are authorised officers for the purposes of the Bill.
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Division 2--Investigations
Clause 29 defines the allowable purposes of an authorised investigation.
Such investigations may involve a compliance check following
the making of a Back to Work payment.
Clause 30 Subclause (1) empowers the Commissioner, by written notice, to
require a person to provide information, produce documents or
attend and give evidence.
Subclause (2) enables the Commissioner to require evidence not
given orally to be verified by statutory declaration.
Subclause (3) enables the Commissioner to require oral evidence
to be given on oath.
Subclause (4) requires a person to comply with a notice given
under this provision within a specified time.
A maximum penalty of 60 penalty units for an individual and
300 penalty units for a body corporate is prescribed for a breach
of this provision.
Clause 31 sets out the powers of entry and inspection for the purposes of an
authorised investigation, including the power to inspect premises,
require a person to produce a document, retain a document,
answer questions and give an authorised officer other reasonable
assistance. The authorised officer may enter premises with the
consent of the occupier or on the authority of a warrant issued
under clause 32. The occupier must immediately be given a copy
of their signed consent. An authorised officer must produce his
or her identity card.
Clause 32 makes provision for obtaining a search warrant.
Subclause (1) enables an authorised officer to apply for the issue
of a search warrant if the officer believes there is, or may be in
the next 72 hours, on the premises a thing relevant to the
administration of the Bill.
Subclause (2) empowers a magistrate to issue a search warrant if
satisfied by evidence on oath there is or will be in the next
72 hours a relevant thing on the premises. The warrant can
authorise the officer to enter the premises, search for and seize
the things named in the warrant and break open any receptacle if
necessary.
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Subclause (3) requires a search warrant to state the premises to be
searched, a description of the thing to be searched for, any
conditions of the warrant, any restrictions on time of entry and
the day the warrant ceases to have effect.
Subclause (4) provides that a search warrant must be issued in
accordance with the Magistrates' Court Act 1989.
Subclause (5) provides for the rules that are to be observed in the
Magistrates' Court Act 1989 relating to search warrants to
extend and apply to warrants issued under this clause.
Clause 33 requires an authorised officer or assistant to announce their
authority to enter under the warrant before executing it, unless
the officer or assistant believes on reasonable grounds that
immediate entry is necessary for any person's safety or so that
effective execution is not frustrated.
Clause 34 requires that, if the occupier or the occupier's apparent
representative is present when the warrant is being executed, an
authorised officer must identify themselves by producing their
identity card for inspection and give the occupier or
representative a copy of the execution copy of the warrant.
Clause 35 provides that a person may refuse to give information, produce
documents or answer questions under this Division on the ground
that it would incriminate the person in respect of an offence other
than an offence under the Bill.
Information given, documents produced, or questions answered
by a person as required by this Division are not admissible in
evidence against the person in any proceeding in respect of an
offence against the Bill.
Clause 36 creates an offence where a person hinders or obstructs, or fails to
reasonably co-operate with or answer a question asked by, an
authorised officer carrying out an authorised investigation.
A maximum penalty of 60 penalty units in the case of an
individual and 300 penalty units for a body corporate is
prescribed for a breach of this provision.
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Division 3--Repayments and penalties
Clause 37 provides for repayments and penalties.
Subclause (1) provides that the Commissioner may, by written
notice, require a claimant to repay the whole amount, or part of
the amount, of a Back to Work payment if the amount was paid
in error or the decision under which the amount was paid is
reversed.
Subclauses (2) and (3) provide that if it was the claimant's
dishonesty which led to the amount being paid, or the claimant
fails to make a repayment, the Commissioner may impose a
penalty not exceeding the amount the claimant is required to
repay.
Subclause (4) provides that an amount or penalty under this
section is payable by the date specified in the notice.
Subclause (5) provides that a claimant will be liable to pay
interest on any unpaid amount that is required to be repaid to the
Commissioner under subclause (1) or penalty imposed under
subclause (2) or (3). The amount of interest is to be calculated on
a daily basis from the end of the last day for payment until the
day it is paid at the interest rate from time to time applying under
Division 1 of Part 5 of the Taxation Administration Act 1997.
The Commissioner, in any circumstances the Commissioner
considers appropriate, may remit interest payable by a claimant
under this section by any amount.
Clause 38 Subclause (1) limits the scope of the power to recover amounts
from a claimant under this clause to part or all of an overpayment
or an amount of a penalty.
Subclause (2) imposes a liability to pay the amount on an
claimant.
Subclause (3) enables the Commissioner to recover an amount as
a debt due to the State.
Subclause (4) allows for payment of an outstanding liability by
instalments.
Subclause (5) enables the Commissioner to write off the whole or
part of the outstanding liability if recovery is impracticable or
unwarranted.
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Clause 39 Subclause (1) provides for the collection of debts from third
parties in specified circumstances.
Subclause (2) empowers the Commissioner to require any person
owing money to a claimant, holding money on behalf of a
claimant or having authority to pay money to a claimant, to pay
an amount to which this clause applies that remains unpaid.
Subclause (3) enables the Commissioner's requirement to be in
writing.
Subclause (4) requires a copy of the requirement to be served on
the claimant.
Subclause (5) provides that the maximum amount a person can
be compelled to pay under this section is the amount payable by
the claimant.
Subclause (6) compels the person to pay the money to
Commissioner on receipt of the notice or when the money is held
by that person, whichever is the later.
Subclause (7) requires the person to comply with the
Commissioner's requirement. A maximum penalty of 10 penalty
units in the case of an individual and 50 penalty units for a body
corporate is prescribed for a breach of this provision.
Subclause (8) requires the Commissioner to notify a person to
whom a requirement under this section has been given promptly
if the whole or a part of the amount is paid by another person.
Clause 40 provides for the indemnification of a third party who makes a
payment in accordance with clause 38.
Division 4--Confidentiality
Clause 41 defines an authorised person as an authorised officer or any
other person engaged (whether as an employee, consultant,
contractor or otherwise) in the administration of the Bill.
Clause 42 prohibits an authorised person from disclosing any information
obtained under or in relation to the Bill, except as permitted by
this Part. Failure to comply with this provision is an offence with
a maximum statutory penalty of 60 penalty units in the case of an
individual and 300 penalty units for a body corporate.
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Clause 43 permits an authorised person to disclose information obtained
under or in relation to the administration of the Bill with the
consent of the person to whom the information relates, or in
connection with the administration or enforcement of the Bill or
other relevant laws, or in accordance with a requirement under an
Act or to a specified authorised recipient.
Authorised recipients are specified in paragraph (d) and include
the Minister, the Secretary to the Department of Treasury and
Finance, the Victorian WorkCover Authority, a police officer of
or above the rank of Inspector or a person prescribed to be an
authorised recipient for the purposes of this section.
Clause 44 permits the Commissioner to disclose information obtained under
or in relation to the administration of the Bill which is not likely
to identify a particular person.
Clause 45 permits the Commissioner to disclose information likely to
identify a person if the disclosure is permitted by the Bill or
necessary for the administration of the Bill.
Clause 46 prohibits a person disclosing information obtained from an
authorised person unless the disclosure is made to enable the
person to perform a function conferred by law for the purpose of
enforcement or administration of the law or protecting the public
revenue, or the disclosure is authorised by the Commissioner.
Failure to comply with this provision is an offence. The
maximum statutory penalty is 60 penalty units for an individual
and 300 penalty units for a body corporate.
Clause 47 provides that a person is not required to disclose in Court any
information obtained in relation to the Bill, unless it is necessary
for the administration of the Bill or it is for the purposes of
enabling a person who is specified for the time being to be an
authorised recipient to perform a function conferred or imposed
on the person by law.
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Part 6--Miscellaneous
Part 6 of the Bill contains miscellaneous provisions, including such matters
as the making of dishonest or misleading statements.
Division 1--Further offences and ancillary provisions for offences
Clause 48 Subclause (1) creates an offence where a person, in or in
connection with a claim, gives information, makes a statement or
produces a document that is, to the person's knowledge, false or
misleading.
A maximum penalty of 60 penalty units in the case of an
individual and 300 penalty units for a body corporate is
prescribed for a breach of this provision.
Subclause (2) provides that a person must not omit information
about any matter or thing, omit from a statement any matter or
thing, or fail to produce a document, without which the claim is,
to the person's knowledge, false or misleading in a material
particular. Failure to comply with this provision is an offence.
The maximum statutory penalty is 60 penalty units for an
individual and 300 penalty units for a body corporate.
Clause 49 provides that, if a body corporate commits an offence against
clause 24(1) or 39(7), an officer of the body corporate also
commits an offence against the provision if the officer authorised
or permitted the commission of the offence by the body corporate
or was knowingly concerned in any way (whether by act or
omission) in the commission of the offence by the body
corporate.
The provision states that an officer may commit an offence
whether or not the body corporate has been prosecuted for, or
found guilty of, an offence. The provision however allows the
officer to rely on a defence that would have been available to the
body corporate had the body corporate been charged with the
same offence. The officer bears the same burden of proof that
the body corporate would bear in establishing the defence.
The provision also makes clear that officers' accessorial liability
does not affect the operation of sections 323 and 324 of the
Crimes Act 1958.
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Clause 50 provides that if a body corporate commits an offence against a
specified provision, an officer of the body corporate also
commits an offence against the provision if the officer failed to
exercise due diligence to prevent the commission of the offence.
Subclause (2) specifies the following provisions: clauses 20,
21(2), 22, 23, 25(1), 26, 30(4), 36, 42(1), 46(1), 48(1) and (2).
The provision states that an officer may commit an offence
whether or not the body corporate has been prosecuted for, or
found guilty of, an offence. The provision however allows the
officer to rely on a defence that would have been available to the
body corporate had the body corporate been charged with the
same offence. The officer bears the same burden of proof that
the body corporate would bear in establishing the defence.
Clause 51 provides that any prosecution for an offence under the Bill must
be commenced within 3 years after the alleged commission of the
offence.
Division 2--Miscellaneous
Clause 52 provides that a certificate signed by the Commissioner stating
that a Back to Work payment was paid to a person named in the
certificate on a specified date is admissible in legal proceedings
as evidence of the payment. Also admissible are copies of
notices issued by the Commissioner imposing a penalty under the
proposed Act and requiring payment or repayment of a specified
amount.
Clause 53 is a standing appropriation which provides that any amount
required to be paid under the proposed Act must be paid from the
Consolidated Fund and appropriates the Consolidated Fund for
that purpose.
Clause 54 provides that the Governor in Council may make regulations for
or with respect to any matter in the proposed Act. A regulation
may create an offence with a penalty not exceeding 20 penalty
units.
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Part 7--Amendment of Taxation Administration Act 1997
Part 7 contains provisions making consequential amendments to the
Taxation Administration Act 1997.
Clause 55 amends section 20 of the Taxation Administration Act 1997 by
inserting a new subsection (3) that provides that
section 20(1)(d)(i) does not apply in respect of a liability under
the Back to Work Act 2014.
Section 20(1)(d)(i) of the Taxation Administration Act 1997
provides that the if an amount has been overpaid by a taxpayer,
the Commissioner must apply the overpaid amount against any
liability of the taxpayer arising under or by reason of a taxation
law or another Act of which the Commissioner has the general
administration. This amendment prevents a refund of an
overpaid amount from being applied against the liability to repay
a Back to Work payment under clause 37.
Clause 56 inserts after section 92(1)(b)(i) of the Taxation Administration
Act 1997 a new subparagraph(ia), referring to the Back to Work
Act 2014.
Section 92 of the Taxation Administration Act 1997 deals with
permitted disclosures and this amendment allows a tax officer to
disclose information obtained under or in relation to the
administration of a taxation law (such as payroll tax) for the
purposes of the administration of the Back to Work Act 2014.
Clause 57 provides that this Part is repealed on 1 July 2016. The repeal of
the Part does not affect the continuing operation of the
amendments to the Taxation Administration Act 1997 made by
it (see section 15(1) of the Interpretation of Legislation Act
1984).
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