Monday, 4 September 2017
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017; In Committee
I can indicate that I will no longer be proceeding with the amendments on sheet 8214 in my name, because they have effectively been dealt with by the amendments moved by Senator Cameron in terms of Administrative Appeals Tribunal reviews.
by leave—I move the Greens amendments (1) to (3) on sheet 8145 together:
Schedule 1, item 17, page 9 (lines 11 to 16), omit subsection 558A(2), substitute:
(2) A person is a responsible franchisor entity for a franchisee entity of a franchise if:
(a) the person is a franchisor (including a subfranchisor) in relation to the franchise; or
(b) the person:
(i) is a related body corporate of a franchisor (including a subfranchisor) in relation to the franchise; and
(ii) the person has a significant degree of influence or control over the franchisor (or subfranchisor).
Schedule 1, page 13 (after line 29), after Part 2, insert:
Part 2A—Recovery of unpaid amounts for franchisee employees
Fair Work Act 2009
17A After subsection 9(5B)
(5C) Part 6-4C provides for the recovery of unpaid amounts for franchisee employees.
17B Section 12
apparent responsible franchisor entity: see subsection 789GE(2).
franchisee employee: see subsection 789GC(1).
franchisee employer: see subsection 789GC(1).
franchise-related work: see subsection 789GC(1).
17C Section 12 (definition of unpaid amount)
Repeal the definition, substitute:
(a) in relation to TCF work performed by a TCF outworker: see subsections 789CA(1) and (4); and
(b) in relation to franchise-related work performed by a franchisee employee: see subsection 789GC(1).
17D After paragraph 789BA(1) (f)
(fa) Part 6-4C (recovery of unpaid amounts for franchisee employees);
17E After Part 6-4B
Part 6-4C—Recovery of unpaid amounts for franchisee employees
789GA Guide to this Part
This Part provides for employees employed by a franchisee entity to recover unpaid remuneration from the responsible franchisor entity for the franchisee entity.
789GB Meanings of employee and employer
In this Part, employee means a national system employee, and employer means a national system employer.
Division 2—Recovery of unpaid amounts for franchisee employees
789GC When this Division applies
Franchisee employees not paid for work in certain circumstances
(1) This Division applies if:
(a) a franchisee entity is the employer (the franchisee employer) of an employee (the franchisee employee); and
(b) the franchisee employee performs work (franchise-related work) for the franchisee employer for the purposes of business activities carried on by the employer under the franchise; and
(c) the franchisee employer does not pay an amount (the unpaid amount) that is payable, in relation to the franchise-related work, by the employer:
(i) to the franchisee employee; or
(ii) to another person, for the benefit of the franchisee employee;
on or before the day when the amount is due for payment; and
(d) the unpaid amount is payable under:
(i) a contract; or
(ii) this Act, or an instrument made under or in accordance with this Act; or
(iii) another law of the Commonwealth; or
(iv) a transitional instrument as continued in existence by Schedule 3 to the Transitional Act; or
(v) a State or Territory industrial law, or a State industrial instrument. 1828
(2) Without limiting paragraph (1) (c), the unpaid amount may (subject to paragraph (1) (d)) be an amount of any of the following kinds that relates to (or is attributable to) the franchise-related work:
(a) an amount payable by way of remuneration or commission;
(b) an amount payable in respect of leave;
(c) an amount payable by way of contributions to a superannuation fund;
(d) an amount payable by way of reimbursement for expenses incurred.
789GD Liability of responsible franchisor entity for unpaid amount
(1) Each responsible franchisor entity for the franchisee employer is liable to pay the unpaid amount.
(2) If there are 2 or more responsible franchisor entities for the franchisee employer, those entities are jointly and severally liable for the payment of the unpaid amount.
(3) Subject to subsection 789GG(2), this section does not affect the liability of the franchisee employer to pay the unpaid amount.
789GE Demand for payment from an apparent responsible franchisor entity
(1) The franchisee employee, or a person acting on behalf of the franchisee employee, may give an apparent responsible franchisor entity for the franchisee employer a written demand for payment of the amount that the franchisee employee reasonably believes the entity is liable for under section 789GD in relation to the franchise-related work.
(2) An entity is an apparent responsible franchisor entity for the franchisee employer if the franchisee employee reasonably believes that the entity is a responsible franchisor entity for the franchisee employer.
(3) The demand must:
(a) specify the amount, and identify the franchisee employer; and
(b) include particulars of the franchise-related work to which the amount relates, and why the amount is payable by the entity to which the demand is given; and
(c) state that if the specified amount is not paid by a specified time, proceedings may be commenced against the entity under section 789GF.
(4) The time specified for the purpose of paragraph (3) (c) must not be less than 14 days after the demand is given to the entity.
789GF Court order for entity to pay amount demanded
(a) in accordance with section 789GE, an apparent responsible franchisor entity for the franchisee employer has been given a demand for payment of a specified amount; and
(b) the amount has not been paid in full by the time specified in the demand;
a person or organisation specified in subsection (2) (the applicant) may commence proceedings for an order requiring the apparent responsible franchisor entity or the responsible franchisor entity for the franchisee employer to pay the specified amount.
(2) The proceedings may be commenced:
(a) by the franchisee employee; or
(b) on the franchisee employee's behalf, by:
(i) an organisation that is entitled to represent the industrial interests of the franchisee employee; or
(ii) an inspector.
(3) The proceedings may be commenced in:
(a) the Federal Court; or
(b) the Federal Circuit Court; or
(c) an eligible State or Territory court.
(4) Subject only to subsections (5) and (6), the court may make an order requiring a responsible franchisor entity for the franchisee employer to pay, to the franchisee employee or to another person on the employee's behalf, the specified amount (or so much of that amount as the applicant alleges is still owing).
(5) The court must not make an order under subsection (4) in relation to a responsible franchisor entity for the franchisee employer if the entity satisfies the court that the entity is not liable under section 789GD to pay any of the specified amount.
(6) If a responsible franchisor entity for the franchisee employer satisfies the court that the amount of the entity's liability under section 789GD is less than the specified amount (or is less than so much of that amount as the applicant alleges is still owing), the court must not make an order under subsection (4) requiring the entity to pay more than that lesser amount.
(7) In making the order, the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(8) Without limiting subsection (7), in determining the amount of interest, the court must take into account the period between the day when the unpaid amount was due for payment by the franchisee employer and the day when the order is made.
(9) Proceedings cannot be commenced under this section more than 6 years after the time when the unpaid amount became due for payment by the franchisee employer.
789GG Effect of payment by entity (including entity's right to recover from franchisee employer)
(1) This section applies if an entity pays an amount in discharge of a liability of the entity under section 789GD, or pursuant to an order under section 789GF. 1830
(2) The payment discharges the liability of the franchisee employer for the unpaid amount, to the extent of the payment. This does not affect any right that the entity has to recover an equivalent amount from the franchisee employer (under this section or otherwise) or from another person, or to be otherwise indemnified in relation to the making of the payment.
(3) The entity may, in accordance with this section, recover from the franchisee employer an amount (the recoverable amount) equal to the sum of:
(a) the amount paid by the entity as mentioned in subsection (1); and
(b) any interest paid by the entity in relation to that amount pursuant to an order under section 789GF.
(4) The entity may recover the recoverable amount:
(a) by offsetting it against any amount that the entity owes to the franchisee employer; or
(b) by action against the franchisee employer under subsection (5).
(5) The entity may commence proceedings against the franchisee employer for payment to the entity of the recoverable amount. The proceedings may be commenced in:
(a) the Federal Court; or
(b) the Federal Circuit Court; or
(c) an eligible State or Territory court.
(6) The court may make an order requiring the franchisee employer to pay the entity the recoverable amount (or so much of it as is still owing) if the court is satisfied that:
(a) this section applies as mentioned in subsection (1); and
(b) the entity has not otherwise recovered the recoverable amount in full from the franchisee employer.
(7) In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(8) Without limiting subsection (7), in determining the amount of interest, the court must take into account the period between the day when the recoverable amount was paid by the entity and the day when the order is made.
(9) Proceedings cannot be commenced under this section more than 6 years after the time when the entity paid the recoverable amount.
789GH Division does not limit other liabilities or rights
Nothing in this Division limits any other liability or right in respect of the entitlement of the franchisee employee to the unpaid amount (or to have the unpaid amount paid to another person for the employee's benefit).
Schedule 1, page 31 (after line 25), after item 19, insert:
19A Application of the amendments—recovery of unpaid amounts for franchisee employees
Part 6-4C of the amended Act applies in relation to an amount that is payable by a franchisee employer if the franchise is entered into on or after the commencement of this Part.
One thing that's really come out in this debate is that the government are making out that they're looking after vulnerable workers, but that argument has fallen over time and time again. If they were really sincere, this is where they would support these amendments, because these amendments are a simple package dealing with how we can recover the unpaid amounts for franchise employees. That's the essence, surely, of what this legislation is about. We're talking about vulnerable workers and we're talking about them being ripped off. Surely we should be doing something about it. This doesn't just put some airy-fairy measures in place; it gets to the heart of the issue—getting the money back to them. Considering the lateness of the hour and my voice, I will leave it at that, but I move these amendments and urge all senators to support them.
The government opposes the Greens amendments outlined in item (1), which would extend the bill to cover related bodies corporate and remove the control test in proposed paragraph 557A(2)(b). This amendment would extend the coverage of franchisor obligations to also include related bodies corporate of the franchisor. This amendment would potentially capture all kinds of arrangements that have only a loose connection with a franchise business—for example, a subsidiary of a franchisor operating an entirely unrelated business. The proposed amendment fails to target those with a responsibility to identify and rectify underpayments. It ignores that businesses in the best position to address noncompliance with workplace laws are those with control and influence over the affairs of the underpaying entity. For that reason, the government opposes the amendment.
In relation to the amendments outlined in items (2) and (3), which impose joint employer responsibilities on franchisors and franchisees—so in practice both would actually have the same employment obligations—this amendment would allow franchisee employees who are underpaid to demand that the franchisor rectify the underpayment. The amendments impose a presumption of guilt on franchisors and could simply incentivise struggling franchisees to underpay workers and pass the buck to the franchisor. This is obviously bad for workers, bad for business and bad for jobs. The government does not support imposing direct liability on franchisors for their franchisees' wages bill. Franchisors that take reasonable steps to prevent contraventions of workplace laws should not be subject to further regulation. On that basis, the government will also be opposing those particular amendments.
Can I just indicate that the opposition will not be opposing these amendments. Senator Rhiannon is clearly motivated by ensuring that the working class in this country are not ripped off. Senator Rhiannon's got a long history of being engaged in protecting workers whenever workers are under attack. I've been on many picket lines with Senator Rhiannon. I have been involved in many discussions and debates about workplace laws. I have been to anti Work Choices campaigns with Senator Rhiannon. One thing I can say about Senator Rhiannon is that she stands up for the working class in this country and she understands the issues that affect working people far better than Senator Cash ever could.
We think that this bill has just about been talked out. Senator Rhiannon is doing what she always does, and that is to attempt to ensure that workers are not exploited and to ensure that there are checks and balances in the system that will give fair and reasonable workplace laws. We are of the view that Senator Rhiannon is always genuine about workplace laws and always out there supporting the trade union movement and supporting workers far better than anyone else. As I said, I have known Senator Rhiannon for decades. She's been on more picket lines than even I can poke a stick at, and she's always genuine in her view. On the basis of that, we will not oppose these amendments.
The CHAIR: The question is that amendments (1) to (3) on sheet 8145 be agreed to.