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A Bill for an Act to provide for the establishment and administration of a scheme to guarantee the payment of wages and other accrued liabilities owed to employees in the event of employer insolvency, and for related purposes
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Introduced HR 16 Feb 2004

Employee Protection (Employee Entitlements Guarantee) Bill 2004
First Reading

Employee Protection (Employee Entitlements Guarantee) Bill 2004
First Reading

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2002-2003-2004

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Employee Protection (Employee Entitlements Guarantee) Bill 2004

No. , 2004

(Mrs Crosio)

A Bill for an Act to provide for the establishment and administration of a scheme to guarantee the payment of wages and other accrued liabilities owed to employees in the event of employer insolvency, and for related purposes

Contents

Part 1--Preliminary       1

1 Short title       1

2 Commencement       1

3 Object of this Act       2

4 Non-application of this Act to employment by government or local government agencies       2

5 Extension to Territories       2

Part 2--Interpretation       3

6 Interpretation       3

7 Insolvency       4

Part 3--Employee Entitlements Protection Insurance       6

Division 1--Policy of employee entitlements protection insurance       6

8 Nature of policy of employee entitlements protection insurance       6

9 Extent of employee's protection       6

Division 2--Obligation to hold insurance       7

10 Obligation to hold employee entitlements protection insurance       7

11 Exempt employers, partial exemptions etc       7

Division 3--Information about insurance       8

12 Employer to give information to employees about employee entitlements protection insurance       8

13 Requests for information       8

14 Insurer to notify policy of employee entitlements protection insurance       8

15 Commissioner to give information on request to employee       9

Part 4--Approved insurers       9

Division 1--Approved insurer agreement       9

16 Meaning of approved insurer       9

17 Withdrawal from scheme       10

Division 2--The nominal insurer scheme       10

18 The Commissioner to be nominal insurer       10

19 Approved insurers to contribute to costs of claims against nominal insurer       10

Division 3--Bad risk cross-subsidisation scheme       11

20 Establishment of scheme       11

21 Contributions to scheme       11

22 Entitlements under scheme       12

Part 5--Claims       12

23 Entitlement to make claim       12

24 Making of claim       13

25 Insurer against whom claim is to be made       13

26 Insurer's response to claim       13

27 Conciliation of disputes       14

28 Proceedings in court       14

29 Insurer's rights of subrogation       14

Part 6--Administration       14

30 Commissioner responsible for general administration of Act       14

31 Powers of the Commissioner       15

32 Supervisory powers--Commissioner may obtain information and material       15

33 Secrecy       16

34 Delegation       18

35 Annual report       18

Part 7--Miscellaneous       18


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36 Returns       18

37 False or misleading information in claims       19

38 Application of the Criminal Code       19

39 Regulations       19

A Bill for an Act to provide for the establishment and administration of a scheme to guarantee the payment of wages and other accrued liabilities owed to employees in the event of employer insolvency, and for related purposes

The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title

        This Act may be cited as the Employee Protection (Employee Entitlements) Act 2004.

2 Commencement

       (1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.

       (2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3 Object of this Act

       (1) The object of this Act is to protect the interests of employees in the event of the insolvency of their employers.

       (2) The principal means adopted for the achievement of this object are the following:

       (a) to establish a scheme of employee entitlements protection insurance; and

       (b) to require employers to insure their workforces under the scheme; and

       (c) to provide for the determination and enforcement of claims under the scheme.

4 Non-application of this Act to employment by government or local government agencies

        This Act does not apply to a contract of employment, or the parties to a contract of employment, if:

       (a) the employer is the Crown, or an agency, instrumentality or representative of the Crown, in right of the Commonwealth, a State or a Territory; or

       (b) the employer is a body established under a law of the Commonwealth, a State or a Territory conferring powers of local government on the body.

5 Extension to Territories

        This Act:

       (a) extends to the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island; and

       (b) has effect as if those Territories were part of Australia.

Part 2--Interpretation

6 Interpretation

        In this Act, unless the contrary intention appears:

approved insurer has the meaning given in section 16.

Commissioner means the Insurance and Superannuation Commissioner appointed under the Insurance and Superannuation Commissioner Act 1987, or a person for the time being acting as Insurance and Superannuation

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Commissioner under that Act.

contract of employment includes:

       (a) a contract of apprenticeship;

       (b) a contract under which a person works for commission;

       (c) a contract that is wholly or principally for the labour of a person;

       (d) a contract under which a person performs or presents, or participates in the performance or presentation of, any music, play, dance, entertainment, sport, display or promotional activity or any similar activity involving the exercise of intellectual, artistic, musical, physical or other personal skills;

       (e) a contract under which a person provides services in connection with an activity referred to in paragraph (c);

       (f) a contract under which a person performs services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast.

employer means a person who is liable to pay for the services of another under a contract of employment and includes a former employer.

employee means a person who provides services under a contract of employment and includes a former employee.

insolvent has the meaning given by section 7.

insurer means:

       (a) a person authorised by the Insurance Act 1973 or a law of a State to carry on insurance business; or

       (b) a body corporate that is, under the law of a State, responsible for administering a scheme of workers compensation;

        and includes the nominal insurer.

nominal insurer means the Commissioner in the Commissioner's capacity as nominal insurer under this Act.

relevant conciliation procedures means procedures for the settlement of claims under this Act by conciliation prescribed:

       (a) in the case of a claim against an approved insurer--in the agreement between the Commissioner and the insurer; or

       (b) in the case of a claim against the nominal defendant--in the regulations.

wages includes any payment made, or to be made, by an employer to or for the benefit of an employee under a contract of employment.

workforce means the total body of an employer's employees (and, if an employer has only one employee, is a reference to that employee).

year means calendar year.

7 Insolvency

       (1) A person is insolvent if the person is unable to pay debts as they fall due.

       (2) Without limiting subsection (1), an individual is to be regarded as insolvent if the individual:

       (a) has become bankrupt; or

       (b) has applied to take the benefit of a law for the benefit of bankrupt or insolvent debtors; or

       (c) has compounded with his or her creditors; or

       (d) has assigned his or her remuneration for the benefit of creditors.

       (3) Without limiting subsection (1), a company is to be regarded as insolvent if:

       (a) the company has entered into a compromise or arrangement with its creditors, or a class of its creditors, and the administration of the compromise or arrangement has not yet ended; or

       (b) a receiver, or a receiver and manager, of property of the company has been appointed and is acting; or

       (c) the company is under administration within the meaning of the Corporations Law; or

       (d) the company has executed a deed of company arrangement under Part 5.3 of the Corporations Law and the arrangement has not yet terminated; or

       (e) the company is under official management; or

       (f) the company is being wound up; or

       (g) a provisional liquidator has been appointed for the company and has not since been removed.

Part 3--Employee Entitlements Protection Insurance

Division 1--Policy of employee entitlements protection insurance


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8 Nature of policy of employee entitlements protection insurance

        A policy of employee entitlements protection insurance is a policy of insurance under which an approved insurer insures an employer's workforce against loss resulting from the employer's insolvency.

9 Extent of employee's protection

        An employee is entitled to be indemnified under a policy of employee entitlements protection insurance for liabilities of the following kinds owed by an insolvent employer to the employee:

       (a) a liability for unpaid wages;

       (b) a liability resulting from termination of employment without notice or with insufficient notice;

       (c) a liability for annual leave or long service leave;

       (d) a liability for repayment of a premium or other amount paid by the employee to the employer for training in a particular trade or profession;

       (e) a liability for payment relating to redundancy or termination payments as provided for under the relevant employment's instrument or an order of an industrial tribunal; and

       (f) a liability of the employer outstanding in respect of the employer's superannuation obligations under legislation or under the relevant employment instrument.

Division 2--Obligation to hold insurance

10 Obligation to hold employee entitlements protection insurance

        An employer (other than an exempt employer) must take out, and maintain, a policy of employee entitlements protection insurance with an approved insurer for the employer's workforce.

Penalty:       150 penalty units.

11 Exempt employers, partial exemptions etc

       (1) An employer is exempt from the requirement to hold a policy of employee entitlements protection insurance if: the employer's employees are not employed for the purposes of a trade or business carried on by the employer.

       (2) An employer is exempt from the requirement to hold a policy of employee entitlements protection insurance if the employer employs fewer than 20 employees.

       (3) The Commissioner, if satisfied that other satisfactory arrangements have been made by the employer, may issue a certificate in writing exempting an employer from the obligation to hold employee entitlements protection insurance in respect of all or any of the matters set out in section 9.

       (4) Where, because of the provisions of subsection (3), the Commissioner issues a certificate exempting an employer from the obligation to hold employee entitlements protection insurance in respect of some of the matters set out in section 9, the Commissioner may approve an arrangement under which the employer pays a premium calculated in respect of protection for those matters set out in section 9 and not covered in the certificate.

       (5) The calculation and determination of any exemption or liability under this section is to be on the basis of principles and requirements fixed by regulation.

Division 3--Information about insurance

12 Employer to give information to employees about employee entitlements protection insurance

        An employer must provide each employee with an information booklet in a form approved by the Commissioner:

       (a) explaining the employee's rights under the policy of employee entitlements protection insurance maintained by the employer; and


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       (b) stating the name of the employer's insurer under the policy of employee entitlements protection insurance.

Penalty: 50 penalty units.

13 Requests for information

        An employer must, at the request of the employee, notify the employee of the name and address of the insurer under the employer's policy of employee entitlements protection insurance.

Penalty: 50 penalty units.

14 Insurer to notify policy of employee entitlements protection insurance

        An insurer must, on issuing a policy of employee entitlements protection insurance for an employer's workforce, give the Commissioner written notice:

       (a) stating the name and address of the employer; and

       (b) containing the information required by the regulations.

Penalty: 50 penalty units.

15 Commissioner to give information on request to employee

       (1) The Commissioner must, at the request of an employee, notify the employee of the name and address of the insurer under the employer's policy of employee entitlements protection insurance, as shown in the Commissioner's records.

       (2) If it appears from the Commissioner's records that the employer does not have a current policy of employee entitlements protection insurance, the Commissioner must notify the employee of that fact.

Part 4--Approved insurers

Division 1--Approved insurer agreement

16 Meaning of approved insurer

       (1) An approved insurer is an insurer that enters into an agreement with the Commissioner under which the insurer:

       (a) undertakes to accept all applications for policies of employee entitlements protection insurance at a rate of premium not exceeding limits fixed by the Commissioner for the purposes of this section; and

       (b) undertakes to contribute to the costs of the nominal insurer as required by the Commissioner under this Part; and

       (c) undertakes to make contributions under the bad risk cross-subsidisation scheme as required by the Commissioner under this Part; and

       (d) is entitled to payments under the bad risk cross-subsidisation scheme on the basis fixed in the scheme.

       (2) The agreement with the approved insurer is also to provide for a scheme for the conciliation of disputed claims under policies of employee entitlements protection insurance.

17 Withdrawal from scheme

       (1) An insurer may withdraw from the agreement with the Commissioner by giving written notice of withdrawal.

       (2) The withdrawal takes effect, on a date fixed in the notice, which must be at least one year after the date the notice is given.

       (3) When the withdrawal takes effect, the insurer ceases to be an approved insurer.

       (4) After giving notice of withdrawal, an insurer must not issue any further policies of employee entitlements protection insurance.

Penalty: 150 penalty units.

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Division 2--The nominal insurer scheme

18 The Commissioner to be nominal insurer

        The Commissioner is to be regarded as the insurer under a policy of employee entitlements protection insurance (the nominal insurer) of employees of an employer who:

       (a) is exempt from insurance under this Act; or

       (b) fails to hold a policy of employee entitlements protection insurance for the benefit of the employer's workforce as required under this Act.

19 Approved insurers to contribute to costs of claims against nominal insurer

       (1) An approved insurer must contribute towards the nominal insurer's costs on a basis determined by the Commissioner.

       (2) The basis of contribution must:

       (a) be fair and equitable as between approved insurers; and

       (b) ensure as far as practicable and subject to any adjustments that the Commissioner considers fair and equitable in a particular case that the ratio between:

       (i) an insurer's premium income, or estimated premium income, from policies of wage protection insurance; and

       (ii) the insurer's contributions to the nominal insurer's costs;

        is approximately the same for each approved insurer.

Division 3--Bad risk cross-subsidisation scheme

20 Establishment of scheme

       (1) The Commissioner may establish a scheme (the bad risk cross-subsidisation scheme) under which the costs of insuring against bad risks are fairly apportioned between all approved insurers.

       (2) An insurer is taken to have insured against a bad risk if:

       (a) the employer becomes insolvent within 1 year after taking out a policy of employee entitlements protection insurance; or

       (b) the risk of a claim under a policy of employee entitlements protection insurance is classified by the Commissioner as a bad risk under criteria determined by the Commissioner.

21 Contributions to scheme

       (1) An approved insurer must make contributions for the purposes of the bad risk cross-subsidisation scheme on a basis determined by the Commissioner.

       (2) The basis of contribution must:

        (a) be fair and equitable as between approved insurers; and

(b)       must ensure as far as practicable and subject to any adjustments that the Commissioner considers fair and equitable in a particular case that the ratio between:

       (i) an insurer's premium income, or estimated premium income, from policies of employee entitlements protection insurance; and

       (ii) the insurer's contributions to the bad risk cross-subsidisation scheme;

        is approximately the same for each approved insurer.

22 Entitlements under scheme

        An approved insurer that incurs costs in relation to bad risks is entitled to be indemnified against those costs under the bad risk cross-subsidisation scheme to the extent fixed under the scheme.
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Part 5--Claims

23 Entitlement to make claim

       (1) An employee is entitled to make a claim under a policy of employee entitlements protection insurance if:

       (a) the employer is insolvent; and

       (b) an amount covered by the policy has fallen due for payment by the employer; and

       (c) the employer has failed to pay the unpaid amount in full within 14 days after receiving a written claim for payment made by or on behalf of the employee.

       (2) If:

       (a) an employer is insolvent; and

       (b) written notice of the insolvency is given to an employee by:

       (i) the employer; or

       (ii) a trustee in bankruptcy, liquidator or other person authorised to administer the employer's affairs; or

       (iii) an insurer under a policy of wage protection insurance; and

       (c) the notice contains information required under the regulations;

the employee's right (if any) to make a claim under the policy of employee entitlements protection insurance is extinguished if the claim is not brought within 6 months after the date the written notice was given.

24 Making of claim

       (1) A claim by an employee under a policy of employee entitlements protection insurance must be made in writing.

       (2) The claim must set out:

       (a) the name and address of the claimant; and

       (b) the name of the insolvent employer; and

       (c) the dates when the claimant's employment with the insolvent employer started and ended; and

       (d) the amount claimed by the claimant under the policy and the basis on which it is claimed.

       (3) The claimant must at the request of the insurer provide any further information or materials that the insurer may reasonably require to determine the claim.

25 Insurer against whom claim is to be made

        A claim is to be made against:

       (a) the insurer under the employer's policy of employee entitlements protection insurance; or

       (b) if the employer is an exempt employer or did not hold a policy of wage protection insurance for the benefit of the employer's workforce--the nominal insurer.

26 Insurer's response to claim

       (4) An insurer must, as expeditiously as possible but in any case within 1 month after receiving a claim under a policy of employee entitlements protection insurance, respond to the claim by giving written notice to the claimant stating:

       (a) whether the insurer rejects or accepts the claim; and

       (b) if the insurer accepts the claim in part, stating the amount to which the insurer believes the claimant to be entitled under the policy.

       (5) If, within 14 days after receiving the claim, the insurer reasonably asks the claimant to provide further information or materials to enable the insurer to determine the claim, the insurer is not required to respond to the claim until 14 days after the information or materials are provided.

27 Conciliation of disputes


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        If a claim under a policy of employee entitlements protection insurance is disputed, either the insurer or the claimant may refer the dispute for conciliation in accordance with the relevant conciliation procedures.

28 Proceedings in court

       (1) If:

       (a) an insurer does not respond to a claim as required under this Act; or

       (b) a disputed claim is not resolved in conciliation proceedings;

the claimant may bring an action against the insurer to recover the amount of the claim in a court with jurisdiction to determine claims in contract up to the amount of the claim.

       (2) In an action brought under subsection (1), an employee protected by a policy of employee entitlements protection insurance is to be regarded as having the same rights to claim under the policy as if the employee were a party to the insurance contract.

29 Insurer's rights of subrogation

        If an insurer makes any payment on a claim under a policy of employee entitlements protection insurance, the insurer is subrogated to the rights of the claimant against the claimant's employer.

Part 6--Administration

30 Commissioner responsible for general administration of Act

        Subject to any directions of the Treasurer, the Commissioner has the general administration of this Act.

31 Powers of the Commissioner

        For the purpose of undertaking the general administration of this Act, the Commissioner has power to do all things that are necessary or convenient to be done in connection with the administration of the Act and, without limiting the generality of that power, has power:

       (a) to promote the development of facilities for handling inquiries in relation to employee entitlements protection insurance; and

       (b) to monitor complaints in relation to employee entitlements protection insurance; and

       (c) to liaise generally with other persons or bodies having a responsibility to deal with inquiries, complaints and disputes concerning the protection of employees; and

       (d) to review information and returns given by insurers under this Act; and

       (e) to monitor legal judgments, industry trends and the development of community expectations that are, or are likely to be, of relevance to the efficient operation of this Act; and

       (f) to promote the education of employers, employees and the insurance industry as to the objectives and requirements of this Act.

32 Supervisory powers--Commissioner may obtain information and material

       (1) The Commissioner may, for a purpose connected with the administration or enforcement of this Act, by notice in writing, require an employer or insurer, within 30 days of receipt of the notice, or such longer period as is specified in the notice:

       (a) to give the Commissioner written answers to questions stated in the notice; or

       (b) to give the Commissioner copies of documents specified in the notice.

       (2) The answers to questions must, if the notice so requires, be verified by statutory declaration.

       (3) A person to whom a notice is given under subsection (1) must not fail, without reasonable excuse, to comply with the requirements of the notice.


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Penalty:       150 penalty units.

       (4) It is a reasonable excuse for a person to refuse or fail to comply with the requirements of a notice under subsection (1) if to do so would tend to incriminate the person.

33 Secrecy

       (1) The object of this section is to create duties of non-disclosure for the purposes of section 70 of the Crimes Act 1914.

       (2) Subject to subsections (3), (4) and (6), a person who is or has been:

       (a) the Commissioner; or

       (b) a member of the staff assisting the Commissioner;

        must not, either directly or indirectly, communicate to any person any information concerning the affairs of any other person if the information has been acquired by him or her:

       (c) in the exercise or purported exercise of powers under or for the purposes of this Act; or

       (d) in the performance or purported performance of duties under or for the purposes of this Act.

       (3) Subsection (2) does not apply to a person who communicates the information in the performance of a duty in connection with this Act.

       (4) Subsection (2) does not prevent the communication of information or the production of a document by the Commissioner or by a member of the staff assisting the Commissioner authorised by the Commissioner:

       (a) to the Minister; or

       (b) to a court for the purposes of this Act; or

       (c) to a person to whom, in the Minister's opinion, it is in the public interest that the information be communicated or the document produced.

       (5) A person who is or has been:

       (a) the Commissioner; or

       (b) a member of the staff assisting the Commissioner;

        is not required:

       (c) to communicate to a court any information; or

       (d) to produce in court any document;

acquired by him or her, in the exercise or the purported exercise of powers, or the performance or purported performance of duties, for the purposes of this Act, except when it is necessary to do so for the purposes of this Act.

       (6) Subsection (2) does not prevent the communication of information or the production of a document by the Commissioner, or by a member of the staff assisting the Commissioner authorised by the Commissioner to:

       (a) an Agency Head (within the meaning of the Public Service Act 1997); or

       (b) an APS employee in the Agency who is approved, in writing, by the Agency Head;

        for the purpose of advising the Minister administering that Agency in connection with a submission:

       (c) made, or to be made, by the Minister administering that Agency to the Minister administering this Act; and

       (d) relating to the administration of this Act.

       (7) If information is communicated under subsection (6) to an Agency Head (within the meaning of the Public Service Act 1997) or an APS employee, the APS Head or the APS employee must not, either directly or indirectly, except for the purpose mentioned in subsection (6), divulge or communicate that information to any person.

34 Delegation

        The Commissioner may by writing signed by the Commissioner delegate to a person:

       (a) who is a member of the staff appointed to assist the Commissioner in the performance of the Commissioner's functions; and

       (b) who is an SES employee or acting SES employee;

        any of the Commissioner's powers under this Act or the regulations.

35 Annual report


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       (1) The Commissioner must, within 3 months after the end of each financial year, give to the Treasurer a report on the working of this Act during that year for presentation to the Parliament.

       (2) The report must include copies of audited accounts relating to--

       (a) the Commissioner's income and expenditure as nominal defendant for the relevant year; and

       (b) contributions received from, and payments made to, approved insurers under the bad risk cross subsidisation scheme for the relevant year.

Part 7--Miscellaneous

36 Returns

       (1) An approved insurer must provide the Commissioner with periodic returns as required under the regulations.

       (2) The returns must set out:

       (a) the gross premium income received by the insurer for policies of employee entitlements protection insurance received by the insurer in the period to which the return relates; and

       (b) the number of policies of employee entitlements protection insurance issued by the insurer in the period to which the return relates; and

       (c) other information required under the regulations.

       (3) An approved insurer must not:

       (a) fail, without reasonable excuse, to provide a return as required under this section; or

       (b) include in the return information that is false or misleading in a material particular.

Penalty:       150 penalty units.

37 False or misleading information in claims

        A person is guilty of an offence if:

       (a) the person makes a claim against an approved insurer or the nominal insurer under this Act; and

       (b) the claim contains information that is false or misleading in a material particular.

Penalty:       30 penalty units.

38 Application of the Criminal Code

        Chapter 2 of the Criminal Code applies to all offences against this Act.

39 Regulations

        The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:

       (a) required or permitted by this Act to be prescribed; or

       (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

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