Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Hansard source

I present a supplementary explanatory memorandum relating to the government amendments to be moved to this bill and seek leave to move government amendments (1) to (25) on sheet UB100 together.

Leave granted.

I move government amendments (1) to (25) on sheet UB100 together:

(1) Clause 2, page 2 (table), omit the table, substitute:

(2) Schedule 1, item 1, page 4 (lines 7 and 8), omit "a work arrangement", substitute "an arrangement in relation to work".

(3) Schedule 1, item 1, page 4 (lines 17 and 18), omit "a work arrangement", substitute "an arrangement in relation to work".

(4) Schedule 1, page 4 (after line 19), after item 1, insert:

1A After paragraph 245AA(2)(b)

Insert:

(ba) section 245AGA (defines arrangement in relation to work);

(5) Schedule 1, item 2, page 5 (after line 7), at the end of subsection 245AAA(1), add:

Note: For the meaning of arrangement in relation to work, see section 245AGA.

(6) Schedule 1, item 2, page 5 (line 29), omit "the arrangement provides for the work to be done", substitute "the work is done, or is to be done,".

(7) Schedule 1, item 2, page 6 (after line 4), at the end of subsection 245AAB(1), add:

Note: For the meaning of arrangement in relation to work, see section 245AGA.

(8) Schedule 1, item 2, page 6 (line 27), omit "the arrangement provides for the work to be done", substitute "the work is done, or is to be done,".

(9) Schedule 1, item 2, page 7 (after line 7), at the end of subsection 245AAC(1), add:

Note: For the meaning of arrangement in relation to work, see section 245AGA.

(10) Schedule 1, page 7 (after line 21), at the end of Part 1, add:

2A After section 245AG

Insert:

245AGA Meaning of arrangement in relation to work

(1) For the purposes of this Subdivision, arrangement in relation to work means an arrangement, in connection with a person (the first person) allowing another person to work, for the other person to:

(a) accept certain conditions; or

(b) perform, or refrain from performing, an activity, whether for the first person or someone else; or

(c) participate in, or refrain from participating in, an activity, whether for the first person or someone else.

(2) To avoid doubt, a reference in subsection (1) to an activity includes a reference to a work-related activity or a non-work-related activity.

Examples: An arrangement in relation to work includes, but is not limited to, an arrangement for a person to:

(a) accept unsafe housing provided or arranged by the first person or another person; or

(b) surrender the person's passport to the first person or another person; or

(c) perform sexual favours for the first person or another person.

(11) Schedule 1, item 5, page 8 (before line 23), before section 245AYA, insert:

245AYAA Objects of this Subdivision

(1) The objects of this Subdivision are as follows:

(a) to protect, to the extent possible, non-citizens (other than holders of permanent visas) from being exploited, or further exploited, by employers;

(b) to ensure that such non-citizens are not exposed to employers or workplaces that have engaged in serious, deliberate or repeated non-compliance with certain laws;

(c) to ensure that non-compliance is dealt with in a way that considers the impact of any sanctions on such non-citizens, the employer and the community as a whole.

(2) This Subdivision aims to achieve its objects by:

(a) empowering the Minister to declare persons to be prohibited employers; and

(b) requiring the Minister to ensure that imposing such a prohibition, including the duration of such a prohibition, is proportionate to the person's misconduct; and

(c) requiring the Minister to consider the impact on non-citizens (other than holders of permanent visas) of making such a declaration; and

(d) encouraging employers to demonstrate their ability to:

(i) remediate their non-compliance; and

(ii) comply with the law relating to migrant worker sanctions in the future.

(12) Schedule 1, item 5, page 9 (line 25), omit the definition of involved in.

(13) Schedule 1, item 5, page 9 (line 29) to page 10 (line 26), omit the definition of relevant fair work provision.

(14) Schedule 1, item 5, page 10 (lines 27 to 36), omit the definition of remuneration-related matter.

(15) Schedule 1, item 5, page 13 (line 27) to page 14 (line 4), omit subsection 245AYG(1), substitute:

Contravention of certain civil penalty provisions of this Act

(1) A person is subject to a migrant worker sanction if:

(a) a civil penalty order has been made against the person in relation to the contravention of a work-related provision; or

(b) both of the following apply:

(i) a civil penalty order has been made against the person in relation to a contravention of another civil penalty provision prescribed by the regulations;

(ii) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa).

(16) Schedule 1, item 5, page 14 (line 18) to page 21 (line 29), omit sections 245AYH and 245AYI, substitute:

245AYH When a person is subject to a migrant worker sanction — contravention of certain civil remedy provisions of the Fair Work Act 2009

Contravention of civil remedy provisions (within the meaning of the Fair Work Act 2009)

(1) A person is subject to a migrant worker sanctionif the Minister is satisfied that:

(a) a FW order has been made against the person in relation to a contravention of a civil remedy provision (within the meaning of the Fair Work Act 2009); and

(b) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa).

Contravention relating to the advertisement of rates of pay

(2) A person is subject to a migrant worker sanctionif the Minister is satisfied that:

(a) a FW order has been made against the person in relation to a contravention of subsection 536AA(1) or (2) of the Fair Work Act 2009 (employer obligations in relation to advertising rates of pay); or

(b) both of the following apply:

(i) a FW order has been made against the person in relation to a contravention of subsection 716(5) of that Act (failure to comply with compliance notice);

(ii) the relevant compliance notice given under section 716 of that Act related to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay).

Contravention relating to compliance notices

(3) A person is subject to a migrant worker sanctionif the Minister is satisfied that:

(a) a FW order has been made against the person in relation to a contravention of subsection 716(5) of the Fair Work Act 2009 (failure to comply with compliance notice); and

(b) the relevant compliance notice given under section 716 of that Act related to a contravention (the original contravention) of:

(i) a provision of the National Employment Standards (within the meaning of that Act); or

(ii) a term of a modern award (within the meaning of that Act); or

(iii) a term of an enterprise agreement (within the meaning of that Act); or

(iv) a term of a workplace determination (within the meaning of that Act); or

(v) a term of a national minimum wage order (within the meaning of that Act); or

(vi) a term of an equal remuneration order (within the meaning of that Act); and

(c) the original contravention related, wholly or partly, to another person who, at the time of the original contravention, was a non-citizen (other than the holder of a permanent visa).

245AYI When a person is subject to a migrant worker sanction — contravention of term of enforceable undertaking etc.

Undertaking in relation to contravention of civil remedy provision (within the meaning of the Fair Work Act 2009)

(1) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:

(a) the Fair Work Ombudsman has accepted an undertaking given by the first person under section 715 of the Fair Work Act 2009 in relation to a contravention of a civil remedy provision (within the meaning of that Act); and

(b) a court has made one or more orders under subsection 715(7) of that Act in relation to the undertaking; and

(c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa).

(2) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:

(a) the Fair Work Ombudsman has accepted an undertaking given by the first person under section 715 of the Fair Work Act 2009 in relation to a contravention of a civil remedy provision (within the meaning of that Act); and

(b) all of the following apply:

(i) the undertaking has not been withdrawn;

(ii) an application for an order under subsection 715(7) of that Act in relation to the undertaking has not been made;

(iii) a court has not made one or more orders under that subsection in relation to the undertaking; and

(c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa); and

(d) the first person has contravened a term of the undertaking.

Undertaking in relation to contravention relating to advertisement of rates of pay

(3) A person is subject to a migrant worker sanction if the Minister is satisfied that:

(a) the Fair Work Ombudsman has accepted an undertaking given by the person under section 715 of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and

(b) a court has made one or more orders under subsection 715(7) of that Act in relation to the undertaking.

(4) A person is subject to a migrant worker sanction if the Minister is satisfied that:

(a) the Fair Work Ombudsman has accepted an undertaking given by the person under section 715 of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and

(b) all of the following apply:

(i) the undertaking has not been withdrawn;

(ii) an application for an order under subsection 715(7) of that Act in relation to the undertaking has not been made;

(iii) a court has not made one or more orders under that subsection in relation to the undertaking; and

(c) the person has contravened a term of the undertaking.

(17) Schedule 1, item 5, page 22 (line 3) to page 23 (line 37), omit subsections 245AYJ(1) and (2), substitute:

Compliance notice in relation to contravention of relevant fair work provision

(1) A person (the first person) is subject to a migrant worker sanctionif the Minister is satisfied that:

(a) an inspector has given the first person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of:

(i) a provision of the National Employment Standards (within the meaning of that Act); or

(ii) a term of a modern award (within the meaning of that Act); or

(iii) a term of an enterprise agreement (within the meaning of that Act); or

(iv) a term of a workplace determination (within the meaning of that Act); or

(v) a term of a national minimum wage order (within the meaning of that Act); or

(vi) a term of an equal remuneration order (within the meaning of that Act); and

(b) a court has confirmed the compliance notice after reviewing it under subsection 717(1) of that Act; and

(c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa); and

(d) the first person has failed to comply with the compliance notice and the first person does not have a reasonable excuse for so failing.

(2) A person (the first person) is subject to a migrant worker sanctionif the Minister is satisfied that:

(a) an inspector has given the first person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of:

(i) a provision of the National Employment Standards (within the meaning of that Act); or

(ii) a term of a modern award (within the meaning of that Act); or

(iii) a term of an enterprise agreement (within the meaning of that Act); or

(iv) a term of a workplace determination (within the meaning of that Act); or

(v) a term of a national minimum wage order (within the meaning of that Act); or

(vi) a term of an equal remuneration order (within the meaning of that Act); and

(b) all of the following apply:

(i) the compliance notice has not been withdrawn;

(ii) the first person has not made an application under subsection 717(1) of that Act in relation to the compliance notice;

(iii) a court has not cancelled the compliance notice after reviewing it under that subsection; and

(c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non-citizen (other than the holder of a permanent visa); and

(d) the first person has failed to comply with the compliance notice and the first person does not have a reasonable excuse for so failing.

(18) Schedule 1, item 5, page 24 (line 34), after "employer", insert "for a period".

(19) Schedule 1, item 5, page 25 (line 14), after "employer", insert "for a period".

(20) Schedule 1, item 5, page 25 (lines 28 to 33), omit subsection 245AYK(5), substitute:

(5) In making a decision about whether to declare a person (the first person) to be a prohibited employer for a period, the Minister must consider:

(a) any written submission made by the first person under subsection (3) that is received by the Minister within the period covered by subsection (4); and

(b) the nature and severity of the non-compliance (the relevant non-compliance) to which the migrant worker sanction relates; and

(c) the impact the relevant non-compliance has had on:

(i) the non-citizen to whom the migrant worker sanction relates; and

(ii) any other individuals affected by the non-compliance; and

(iii) the relevant industry, including impact on the reputation of the industry, economic repercussions and any other relevant issues that may have an impact on the operations of the industry; and

(d) whether the relevant non-compliance was intentional, reckless or inadvertent; and

(e) the likely impact making the declaration would have on:

(i) other persons employed by the first person; and

(ii) services in the community provided by the first person; and

(f) the first person's history of compliance or non-compliance with the laws to which migrant worker sanctions relate; and

(g) the first person's response to the relevant non-compliance; and

(h) how much time has passed since the relevant non-compliance occurred and any sanctions that have already been imposed on the first person in relation to the relevant non-compliance; and

(i) any action the first person has taken to report the relevant non-compliance or to ensure future compliance with the laws to which migrant worker sanctions relate.

(21) Schedule 1, item 5, page 26 (after line 11), after subsection 245AYK(8), insert:

(8A) For the purposes of subsection (8), the maximum period that can be specified in the declaration is set out in the following table.

(22) Schedule 1, item 5, page 27 (line 6), omit "subsection (3)", substitute "subsection (2)".

(23) Schedule 1, page 42 (line 2), omit the heading to Division 1.

(24) Schedule 1, item 41, page 43 (after line 29), at the end of subsection 245APA(2), add:

Note: Section 40B of the Fair Work Act 2009 also provides that for the purposes of that Act, any effect of this Act, or an instrument made under this Act, on the validity of a contract of employment, or a contract for services, is to be disregarded.

(25) Schedule 1, page 44 (lines 1 to 8), Division 2 to be opposed.