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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK AMENDMENT (PROTECTING VULNERABLE WORKERS) BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Employment, Senator the Hon Michaelia Cash)
Outline
AMENDMENTS TO THE FAIR WORK AMENDMENT (PROTECTING
VULNERABLE WORKERS) BILL 2017
OUTLINE
The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (the Bill) amends the
Fair Work Act 2009 (the Fair Work Act) to implement the Government's commitment to protect
vulnerable workers.
The Bill was referred to the Senate Standing Committee on Education and Employment's
Legislation Committee (the Legislation Committee) on 23 March 2017. The Legislation
Committee's report was tabled on 9 May 2017.
These amendments arose from the Legislation Committee's report and from issues raised in
stakeholder submissions to the Legislation Committee. The amendments to the Bill will:
clarify how the proposed 'serious contraventions' regime applies in relation to an alleged
accessory to a contravention (see section 550 of the Fair Work Act and proposed
section 557A of the Bill);
clarify what a person needs to know about a contravention for it to be considered deliberate
under the proposed 'serious contraventions' regime (proposed section 557A);
supplement the list of matters a court may take into account when determining whether a
contravention formed part of a systematic pattern of conduct for purposes of the 'serious
contraventions' regime (proposed section 557A); and
make the necessary consequential amendments.
Amendments to the Fair Work Amendment 1 Senate
(Protecting Vulnerable Workers) Bill 2017
Financial Impact Statement
FINANCIAL IMPACT STATEMENT
Nil.
Amendments to the Fair Work Amendment 1 Senate
(Protecting Vulnerable Workers) Bill 2017
Notes on Amendments
NOTES ON AMENDMENTS
In these notes on amendments, the following abbreviations are used:
Fair Work Amendment (Protecting Vulnerable Workers)
Bill
Bill 2017
Senate Standing Committee on Education and
Committee
Employment's Legislation Committee
Fair Work Act Fair Work Act 2009
Report of the Senate Education and Employment Legislation
Senate Committee Report Committee into the Fair Work Amendment (Protecting
Vulnerable Workers) Bill 2017, May 2017
Senate 2 Amendments to the Fair Work Amendment
Protecting Vulnerable Workers Bill 2017
Notes on Amendments
Item 1 - Schedule 1, page 5 (after line 6), after item 12
1. Item 1 adds a note to the end of subsection 550(1) of the Fair Work Act to clarify how
an accessory's contravention of a civil remedy provision may be a 'serious contravention' for
purposes of proposed section 557A.
2. This amendment responds to stakeholder suggestions that the proposed new laws
should be clearer on when an accessory may be subject to the proposed higher penalties in
relation to serious contraventions. See also Item 4.
Item 2 - Schedule 1, item 13, page 6 (lines 2 to 9), omit subsection 557A(1)
3. Item 2 amends subsection 557A(1) of the Bill to clarify when a contravention of a civil
remedy provision by a person attracts a higher penalty because it is a 'serious contravention'.
4. This amendment responds to stakeholder suggestions that proposed subsection 557A(1)
could be amended to clarify what an alleged wrongdoer needs to know, before they may be held
responsible for a serious contravention under the section.
5. The proposed amendment does this by clarifying that a contravention is taken to be
deliberate if the person knowingly contravened the provision. This language is used elsewhere
under the Act, including in the accessorial liability provisions (section 550). There is no change
to the requirement that the person's conduct constituting the contravention must form part of a
systematic pattern of conduct.
6. To be held responsible for a serious contravention under the amended provision, the
alleged wrongdoer must have knowledge of what is commonly referred to as the 'essential
elements' of the contravention. This includes knowledge of, or at least some appreciation of, the
fact that their conduct was unlawful at the time it occurred. For example an alleged wrongdoer
may know:
their employee or an identifiable class of employees is not receiving their full
entitlements under the Fair Work Act (whether by act or omission); or
they are not complying with applicable record-keeping or pay slip requirements under
the Fair Work Act or Regulations.
7. For this provision to apply however there is no need for the wrongdoer to know the
section or clause number of the relevant workplace law or industrial instrument.
8. Item 2 also inserts a new example under section 557A that provides a practical example
of how the serious contravention regime is intended to operate in a typical case.
Item 3 - Schedule 1, item 13, page 6 (after line 18), after paragraph 557A(2)(c)
9. Item 3 adds an additional matter to the non-exhaustive list of matters that a court may
consider when determining whether a person's conduct was part of a systematic pattern for the
purposes of section 557A of the Bill.
10. New paragraph 557A(2)(ca) provides that a court may have regard to the person's
response, or failure to respond, to any complaints made about the relevant contraventions. This
Amendments to the Fair Work Amendment 1 Senate
(Protecting Vulnerable Workers Bill) 2017
Notes on Amendments
may include consideration of the nature and timing of any response, and whether the response
achieved a reasonable and durable solution to the problem for all affected employees
(if required). Where complaints about workplace entitlements are voluntarily and properly
addressed as they arise, this indicates that any contravening conduct is less likely to be either
deliberate or systematic. Adverse inferences may be available however if there are multiple
instances of the employer failing to properly address complaints of alleged underpayment.
Item 4 - Schedule 1, item 13, page 6 (after line 36), after subsection 557A(5)
11. Item 4 adds a new subsection the end of proposed section 557A to clarify how a person
'involved in' the contravention of a civil remedy provision (accessory) by the principal
wrongdoer (principal) may be penalised for a 'serious contravention'. See section 550 for the
accessorial liability provisions under the Fair Work Act.
12. This amendment responds to stakeholder suggestions that the proposed new laws
should be clearer about when an accessory may be subject to the proposed higher penalties in
relation to serious contraventions. See also Item 1.
13. New subsection 557(5A) provides that an accessory involved in the contravention of a
civil penalty provision commits a 'serious contravention' of the provision only if:
the principal's contravention was a serious contravention under the section; and
the accessory knew that the principal's contravention was a serious contravention.
14. The accessory is subject to the higher penalties for serious contraventions in these
circumstances because their conduct (that is, their involvement in the underlying contraventions)
is more serious: they were knowingly involved in contraventions by the principal, which they
knew to be both deliberate and systematic at the time they occurred.
15. This approach is broadly consistent with the current approach to accessorial liability
under section 550 of the Fair Work Act. In general this requires the alleged accessory to have
participated in the contravention to some degree (see section 550), and also have had knowledge
of the 'essential elements' of the contravention.
16. For accessorial liability, there is a two-step process. First the accessory must be found
to have been 'involved in' the contravention in the usual way (see section 550). Second it must
be established on the balance of probabilities that the accessory additionally knew they were
involved in a serious contravention by the principal at the relevant time (see proposed
subsection 557A(5A)).
17. Higher penalties for a 'serious contravention' may only be sought against a person
(including an alleged accessory) if the procedure in proposed subsection 557A(6) is followed. To
avoid doubt, a reference to a contravention by the principal includes any contravention whether
or not an order has been sought or made against the principal for the contravention.
18. If the claim is not made out, then subsection 557A(7) may also apply. This would allow
the court to consider whether an ordinary accessorial liability claim had been established under
section 550.
Senate 2 Amendments to the Fair Work Amendment
Protecting Vulnerable Workers Bill 2017
Notes on Amendments
Item 5 - Schedule 1, item 13, page 7 (lines 14 to 17), omit subsection 557B(1)
19. Item 5 makes a consequential amendment to subsection 557B(1) of the Bill to reflect
the amendment made by Item 2.
Amendments to the Fair Work Amendment 3 Senate
(Protecting Vulnerable Workers Bill) 2017
Statement of Compatibility with Human Rights
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
The amendments to the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
(the Bill) are compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of amendments to the Fair Work Amendment (Protecting Vulnerable Workers)
Bill 2017
The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (the Bill) amends the
Fair Work Act 2009 (the Fair Work Act) to implement the Government's commitment to protect
vulnerable workers.
The development of these amendments arose out of the Legislation Committee's report and from
issues raised in stakeholder submissions to the Legislation Committee. The amendments to the
Bill will:
clarify how the proposed 'serious contraventions' regime applies in relation to an alleged
accessory to a contravention (see section 550 of the Fair Work Act and proposed
section 557A);
clarify what a person needs to know about a contravention for it to be considered deliberate
under the proposed 'serious contraventions' regime (proposed section 557A);
supplement the list of matters a court may take into account when determining whether a
contravention formed part of a systematic pattern of conduct for purposes of the 'serious
contraventions' regime (proposed section 557A); and
make the necessary consequential amendments.
Human Rights Implications
The amendments do not alter the human rights implications of the Bill as expressed in the
Statement of Compatibility with Human Rights that accompanies the Explanatory Memorandum
for the Bill.
Conclusion
The amendments are compatible with human rights.
Minister for Employment, Senator the Hon Michaelia Cash
Amendments to the Fair Work Amendment 1 Senate
(Protecting Vulnerable Workers Bill) 2017
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